Uniform Civil Procedure Rules 1999


Queensland Crest
Uniform Civil Procedure Rules 1999

Chapter 1 Preliminary

1Short title

These rules may be cited as the Uniform Civil Procedure Rules 1999.

2Commencement

These rules commence on 1 July 1999.

Note—

The Rules of the Supreme Court, the Supreme Court (Admiralty) Rules 1988, Rules under and in pursuance of the Reciprocal Enforcement of Judgments Act 1959, the District Court Rules 1968, and the Magistrates Courts Rules 1960 expired at the end of 30 June 1999—Supreme Court of Queensland Act 1991, section 118B (repealed) and Acts Interpretation Act 1954, section 18. The Uniform Civil Procedure Rules 1999 commenced at the beginning of 1 July 1999—rule 2 and Acts Interpretation Act 1954, section 15B.

r 2 amd 2009 SL No. 162 s 2 sch; 2012 SL No. 150 s 4

3Application

(1)Unless these rules otherwise expressly provide, these rules apply to civil proceedings in the following courts—
the Supreme Court
the District Court
Magistrates Courts.
(2)In a provision of these rules, a reference to the court is a reference to the court mentioned in subrule (1) that is appropriate in the context of the provision.

4Dictionary

(1)The dictionary in schedule 3 defines terms used in these rules.
(2)Words and expressions used in the Civil Proceedings Act 2011 have the same meaning in these rules as they have in that Act.
(3)Subrule (2) does not apply to the extent that the context or subject matter otherwise indicates or requires.

r 4 amd 2012 SL No. 150 s 5; 2018 SL No. 127 s 46

5Philosophy—overriding obligations of parties and court

(1)The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.
(2)Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.
(3)In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.
(4)The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.

Example—

The court may dismiss a proceeding or impose a sanction as to costs, if, in breach of the implied undertaking, a plaintiff fails to proceed as required by these rules or an order of the court.

6Names of all parties to be used

(1)The following documents filed in a proceeding must include the names of all of the parties to the proceeding—
(a)an originating process;
(b)a document to be served on a person not a party to the proceeding;
(c)a final order.
(2)Other documents in a proceeding may include an abbreviation of the title of the proceeding sufficient to identify the proceeding.
(3)If the parties to a proceeding change, the names of the parties on each document filed after the change must reflect the state of the parties after the change.

7Extending and shortening time

(1)The court may, at any time, extend a time set under these rules or by order.
(2)If a time set under these rules or by order, including a time for service, has not ended, the court may shorten the time.

Note—

A time allowed or provided for under these rules is calculated according to the Acts Interpretation Act 1954, section 38 (Reckoning of time).

r 7 amd 2009 SL No. 162 s 2 sch

Chapter 2 Starting proceedings

Part 1 Starting proceedings

8Starting proceedings

(1)A proceeding starts when the originating process is issued by the court.
(2)These rules provide for the following types of originating process—
claim
application
notice of appeal
notice of appeal subject to leave.
(3)An application in, about or pending the trial, hearing or outcome of a proceeding is not an originating process.

Note—

This is commonly called an interlocutory application.

r 8 amd 2009 SL No. 162 s 2 sch

9Claim compulsory

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

10Application 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—
(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.

11Application permitted

A proceeding may be started by application if—
(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.

12Oral application permitted

A court may allow a proceeding to be started by oral application by a counsel or solicitor for an applicant if—
(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.

13Proceeding incorrectly started by claim

(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.
(2)The court may—
(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.

r 13 amd 2009 SL No. 162 s 2 sch

14Proceeding incorrectly started by application

(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.
(2)The court may—
(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.

15Registrar may refer issue of originating process to court

(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.
(2)The court may direct the registrar—
(a)to issue the originating process; or
(b)to refuse to issue the originating process without leave of the court.

16Setting aside originating process

The court may—
(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 127; or
(i)make another order the court considers appropriate.

Note—

See also rule 373 (Incorrect originating process).

r 16 amd 2009 SL No. 162 s 2 sch

Part 2 Rules about originating process

17Contact details and address for service

(1)A plaintiff or applicant must ensure—
(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—

1The email address may be relevant for ordinary service.
2See 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.
(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).
(3)Notice of any change in a party’s address for service must be filed and served on all other parties.
(4)The address for service of a plaintiff or applicant is—
(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
(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).

r 17 amd 2009 SL No. 162 s 2 sch; 2010 SL No. 129 s 3; 2018 SL No. 127 s 47

18Representative 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.

19Originating process must be signed

(1)The plaintiff or applicant, or the person’s solicitor, must sign the originating process.
(2)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

20Copy of originating process for court

(1)The plaintiff or applicant must file with the court a copy of the originating process to be filed and kept by the court.
(2)This rule applies subject to rule 975A(3).

r 20 amd 2018 SL No. 127 s 49

Part 3 Claims

21Application of pt 3

This part applies to claims.

22Claim

(1)A claim must be in the approved form.
(2)A plaintiff must—
(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.
(3)The claim and attachment must be filed and then served on each defendant.
(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.

r 22 amd 2000 SL No. 127 s 5; 2007 SL No. 96 s 3

23Claim 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—
(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.

r 23 amd 2009 SL No. 162 s 2 sch

24Duration and renewal of claim

(1)A claim remains in force for 1 year starting on the day it is filed.
(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.
(3)The claim may be renewed whether or not it is in force.
(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.
(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.
(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.

Part 4 Applications

25Application of pt 4

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

26Content of application

(1)An application must be in the approved form.
(2)An application must name as respondents all persons directly affected by the relief sought in the application.

Note—

The court may direct that others be included as respondents—see rule 69 (Including, substituting or removing party).
(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.
(4)The application must list the affidavits to be relied on by the applicant at the hearing.
(5)The applicant must specify in the application the orders or other relief sought in the proceeding.
(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.
(7)The application, and any copies of the application for service, must specify the day set for hearing the application.
(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.

r 26 amd 2000 SL No. 127 s 6; 2009 SL No. 162 s 2 sch

27Service of application

(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.

Note—

Under the Acts Interpretation Act 1954, section 38(1)(a), the service day and the hearing day are excluded in the reckoning of time.
(2)However, the time limit in subrule (1) does not apply if—
(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.
(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—
(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.

Example of subrule (3)—

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.

(4)For an application not served as required by subrule (1)—
(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.

r 27 amd 2009 SL No. 162 s 2 sch

28Service of affidavit in support of application

(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.
(2)However, the court may give leave for an affidavit not served as required by subrule (1) to be relied on at the hearing.

29Notice of address for service

(1)A respondent may not file and serve a notice of intention to defend an application.
(2)However, the respondent may file and serve a notice of address for service in the approved form.
(3)The court may require a respondent to file and serve a notice of address for service in the approved form.
(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.
(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.
(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.

r 29 amd 2010 SL No. 129 s 4

30Consent 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.

Part 5 Applications in a proceeding

31Applications in a proceeding

(1)A person making an application in a proceeding, or the person’s solicitor, must sign the application and file it.
(2)The application must be in the approved form.
(3)The application must name as respondent any party whose interests may be affected by the granting of the relief sought.
(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.
(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.

Note—

Under the Acts Interpretation Act 1954, section 38(1)(a), the service day and the hearing day are excluded in the reckoning of time.
(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.

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

32Oral applications

(1)Nothing in this part prevents—
(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.
(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.

r 32 (prev r 32A (orig r 31)) renum and reloc 2000 SL No. 127 s 7

renum 2000 SL No. 127 s 9

Part 6 Where to start a proceeding

Division 1 Central registry

div hdg amd 2010 Act No. 26 s 135

33Central 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

Division 2 Starting proceeding other than in central registry

div hdg sub 2010 Act No. 26 s 137

34Application 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—
(a)the Supreme Court;
(b)the District Court;
(c)Magistrates Courts.

r 34 sub 2010 Act No. 26 s 138

35General rule

(1)A person must start a proceeding before a court in 1 of the following districts—
(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;
(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.
(2)However, if the proceeding is to be started in the District Court and subrule (1) does not apply—
(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.
(3)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

Division 3 Area of Magistrates Courts districts

div hdg sub 2012 SL No. 150 s 6

36Application of div 3

This division applies only to Magistrates Courts.

37Extended area of Magistrates Courts districts

(1)The area of a division of a Magistrates Court in the Brisbane Magistrates Courts district includes—
(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.
(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.

Division 4 Objection to, and change of, venue

div hdg sub 2012 SL No. 150 s 7

38Objection to venue

(1)This rule applies if a proceeding in a court is started other than in a central registry of the court.
(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
(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.
(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.
(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.
(5)The court may make any of the following orders on an application under this rule—
(a)an order dismissing—
(i)the application; or
(ii)the proceeding;
(b)an order transferring the proceeding to another place at which the court is held.
(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.

r 38 sub 2012 SL No. 150 s 7

39Change of venue by court order

(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.
(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.

r 39 sub 2012 SL No. 150 s 7

40Change 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

41Consequences 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—
(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.

r 41 sub 2012 SL No. 150 s 7

42[Repealed]

r 42 om 2012 SL No. 150 s 7

43[Repealed]

r 43 om 2012 SL No. 150 s 7

44[Repealed]

r 44 om 2012 SL No. 150 s 7

45[Repealed]

r 45 om 2012 SL No. 150 s 7

46[Repealed]

r 46 om 2012 SL No. 150 s 7

47[Repealed]

r 47 om 2012 SL No. 150 s 7

48[Repealed]

r 48 om 2012 SL No. 150 s 7

49[Repealed]

r 49 om 2012 SL No. 150 s 7

Division 5 Applications heard at a different location

div hdg prev div 5 hdg om 2012 SL No. 150 s 7

pres div 5 hdg (prev div 6 hdg) renum 2012 SL No. 150 s 8

50Applications heard at a different location

(1)If—
(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;

nothing in this part prevents a person making the application in the proceeding to the court at another registry.

(2)If—
(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;

nothing in this part prevents a person making the application in the proceeding to another Magistrates Court.

Part 7 Cross-vesting

51Definitions 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

52Application of pt 7

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

53Starting proceedings

(1)A proceeding in which a party relies on the cross-vesting laws must be started under this part.
(2)However, if there is doubt or difficulty about how a proceeding should be started, the court, on application to it, may give directions.
(3)An application for directions may be made without notice to another person.
(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.
(5)A failure to comply with subrule (4) does not invalidate the process.
(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.

54Special federal matters

(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).
(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.

55Service

(1)Despite chapter 4, an originating process in which the cross-vesting laws are relied on may be served outside the jurisdiction.
(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.
(3)The court must not give leave to proceed unless it is satisfied—
(a)jurisdiction under the cross-vesting laws is being invoked; and
(b)the court is a convenient court in which to decide the matter.
(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.
(5)An order giving leave to proceed does not prevent the court from subsequently transferring the proceeding to another court.

56Directions

(1)The first party to invoke the cross-vesting laws must make an application for directions and serve it on all other parties.
(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.
(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.
(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.
(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.
(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.
(7)The court may, at the trial or hearing of the proceeding, vary an order or decision made on the application for directions.

57Transfer of proceedings

(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.
(2)If a proceeding is transferred to the court from another court, the registrar must give it a number.
(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.

58Transfer 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.

59Transfer to court if no proceeding pending

(1)This rule applies if a proceeding is removed to a court under section 8 of the cross-vesting laws.
(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.
(3)The court’s powers under subrule (2)—
(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.

Chapter 3 Parties and proceedings

Part 1 Several causes of action and parties in a proceeding

Division 1 Several causes of action

60Inclusion of several causes of action in a proceeding

(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.
(2)However, causes of action may be included in the same proceeding only if at least 1 of the following conditions is satisfied—
(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.

Division 2 Several parties

61Application of div 2

This division applies to a proceeding subject to any order of the court made before or after the proceeding is started—
(a)requiring a person—
(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.

62Necessary parties

(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.
(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.
(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.
(4)The court may dispense with a requirement under this rule for a person to be included as a party.

63Joint entitlement

(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.
(2)A person entitled to seek relief who does not agree to be a plaintiff or applicant must be made a defendant or respondent.

64Joint or several liability

(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.
(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.

65Inclusion of multiple parties in a proceeding

(1)In a proceeding, 2 or more persons may be plaintiffs or defendants or applicants or respondents if—
(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.
(2)Also, in a proceeding, 2 or more persons may be defendants or respondents if—
(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
(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.

66Identical 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.

67Parties 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.

Division 3 Reconstitution of proceeding

68Inconvenient inclusion of cause of action or party

(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.
(2)The court may, at any time—
(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.
(3)In this rule—
trial includes hearing.

69Including, substituting or removing party

(1)The court may at any stage of a proceeding order that—
(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.
(2)However, the court must not include or substitute a party after the end of a limitation period unless 1 of the following applies—
(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;
(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.

(3)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

70Procedure for inclusion of party

(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—
(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.
(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.

71Defendant or respondent dead at start of proceeding

(1)This rule applies if—
(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
(b)the cause of action survives the person’s death.
(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’.
(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.

Note—

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

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

(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—
(a)the court gives the person leave to proceed; and
(b)the person follows the court’s directions on how to proceed.
(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.
(3)Subrules (1) and (2) apply subject to the Bankruptcy Act 1966 (Cwlth).
(4)An application for an order under this rule must be served on all persons who could be affected by the order.
(5)The court may, before it makes an order under this rule because a party has died, require notice to be given to—
(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.
(6)An insurer or other person given notice is entitled to be heard on the hearing of the application.
(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.
(8)If—
(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;

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.

73No substitution order after death of plaintiff or applicant

(1)This rule applies if—
(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.
(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.
(3)A copy of the application must be served on the deceased’s personal representative (if any) unless the court orders otherwise.

74Amendment of proceedings after change of party

(1)If an order is made changing or affecting the identity or designation of a party, the plaintiff or applicant must—
(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.
(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.
(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.
(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.
(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.
(6)Unless the court otherwise orders—
(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.
(7)Subrule (6)(a) does not apply to the following—
(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.

r 74 amd 2004 SL No. 276 s 4

Division 4 Representative party

74AApplication 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

75Representative 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.

76Order for representation

(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.
(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.

77Enforcement of order against representative party

(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.

Note—

See also the Civil Proceedings Act 2011, section 18 (Order binds persons who are represented).
(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.

r 77 amd 2009 SL No. 162 s 2 sch; 2012 SL No. 150 s 10

Division 5 Representative proceedings in Supreme Court

div hdg ins 2017 SL No. 18 s 5

77AApplication of division

This division applies to a representative proceeding under the Civil Proceedings Act 2011, part 13A.

Note—

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

77BStarting representative proceeding

A representative proceeding must be started by claim in the approved form.

r 77B ins 2017 SL No. 18 s 5

77CRequirements for giving consent to be group member

(1)This rule applies to the giving of consent under the Civil Proceedings Act 2011, section 103D(2) to be a group member.
(2)The consent must—
(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.

r 77C ins 2017 SL No. 18 s 5

77DRequirements for giving notice to opt out of representative proceeding

(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.
(2)The notice must—
(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.

r 77D ins 2017 SL No. 18 s 5

77ERepresentative party must give list of opt-out group members

(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.
(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.
(3)In this rule—
opt-out date, for a representative proceeding, means—
(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.

r 77E ins 2017 SL No. 18 s 5

77FRequirements for particular applications in representative proceedings

(1)This rule applies to an application for an order under any of the following sections of the Civil Proceedings Act 2011
(a)section 103H;
(b)section 103S;
(c)section 103T;
(d)section 103W.
(2)The application must—
(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.

r 77F ins 2017 SL No. 18 s 5

Part 2 Multiple proceedings

78Consolidation of proceedings

The court may order that 2 or more proceedings be consolidated if—
(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.

79Sequence of hearings

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

80Directions

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.

81Variation 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.

Part 3 Partnerships and business names

Division 1 Partnerships

82Meaning 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.

83Proceeding in partnership name

(1)Two or more partners may start a proceeding in the partnership name.
(2)A proceeding against persons alleged to be partners may be brought against the alleged partnership in the partnership name.
(3)The partnership name used in a partnership proceeding must be the name of the partnership when the cause of action arose.
(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.
(5)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

84Disclosure of partners’ names

(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.
(2)The notice must state a time of not less than 2 business days after service of the notice for compliance with the notice.
(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—
(a)an order staying the proceeding until the information is supplied;
(b)an order striking out a pleading or affidavit.

85Notice of intention to defend

(1)Despite an originating process being against a partnership, a notice of intention to defend must not be filed in a partnership name.
(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.

Note—

See rule 114 (Service in relation to a partnership).
(3)However, the proceeding continues in the name of the partnership.

r 85 amd 2009 SL No. 162 s 2 sch

86Person improperly served as partner

(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—
(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.
(2)On application, the court may—
(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.
(3)The court may give directions about how to decide the liability of the person or the liability of the partners.

87Defence

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.

88Enforcement against individual partner

(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.
(2)The application must be served on the person against whom the order is sought to be enforced.
(3)Despite chapter 4, the person may be served outside Australia without leave.
(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.

Division 2 Business names

89Proceeding 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

90Proceeding in business name if unregistered

(1)This rule applies if—
(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.
(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.
(3)The name under which the business is carried on is sufficient designation of the person in a document filed in the proceeding.
(4)An order in the proceeding may be enforced against the person.

r 90 sub 2012 SL No. 60 s 5

91Notice of intention to defend

(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.
(2)A notice of intention to defend must be in the name of a person and not in the business name.
(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.
(4)The court may set aside the notice of intention to defend of a person who does not comply with subrule (3).
(5)For subrule (1), a name is held under business names legislation only if it is held under—
(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.

r 91 amd 2012 SL No. 60 s 6

92Amendment as to parties

(1)This rule applies if—
(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.
(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.
(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.
(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.
(5)An amendment for this rule must be effected under rules 382 and 384.
(6)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

Part 4 Persons under a legal incapacity

93Litigation guardian of person under a legal incapacity

(1)A person under a legal incapacity may start or defend a proceeding only by the person’s litigation guardian.
(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.
(3)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

94Who may be a litigation guardian

(1)A person may be a litigation guardian of a person under a legal incapacity if the person—
(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.
(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.
(3)A corporation, other than the public trustee or a trustee company under the Trustee Companies Act 1968, may not be a litigation guardian.

95Appointment of litigation guardian

(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.
(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.

r 95 amd 2000 SL No. 127 s 13

96No 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.

97Disclosure

(1)Chapter 7, parts 2 and 3 apply to a party who is a person under a legal incapacity as if the person were not a person under a legal incapacity.
(2)An act required to comply with an order under chapter 7, part 2 or 3 may be performed by—
(a)if the party is capable of performing it—the party; or
(b)otherwise—the litigation guardian of the party.

r 97 amd 2018 SL No. 127 s 50

98Settlements and compromises

(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.
(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—
(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.
(3)The documents mentioned in subrule (2) are not to be served on another party unless the court orders otherwise.

99Proceedings by and against prisoners

(1)This rule applies if a prisoner is incapable of bringing or defending a proceeding without the public trustee’s consent.

Note—

See the Public Trustee Act 1978, section 95 (Restrictions on property dealings or proceedings).
(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.

r 99 amd 2009 SL No. 162 s 2 sch

Chapter 4 Service

Part 1 Preliminary

100Definitions 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.

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.

def convention country ins 2001 SL No. 281 s 3

amd 2009 SL No. 162 s 3 (2)

101Service not allowed on certain days

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

102Approved document exchanges

(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.
(2)The Chief Justice may approve, by practice direction, a document exchange for part 4.

103Service 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.

Part 2 Personal service generally

104Application of pt 2

This part applies subject to these rules or an order made under these rules.

Note—

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

105Personal service for originating process

(1)A person serving an originating process must serve it personally on the person intended to be served.
(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.

106How personal service is performed

(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.
(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.
(3)It is not necessary to show to the person served the original of the document.

Part 3 Service in particular cases

pt hdg amd 2000 SL No. 127 s 15

107Personal 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.

Note—

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

108Personal service—young people

(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.
(2)If the young person does not have a litigation guardian for the proceeding the document must be served instead on—
(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.

109Personal 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—
(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.

110Personal service—prisoners

A document required to be served personally on a prisoner must be served on—
(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.

111Personal service in Magistrates Courts proceedings

(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.
(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).
(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.

r 111 amd 2000 SL No. 127 s 16

Part 4 Ordinary service

112How ordinary service is performed

(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—
(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;
(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;
(g)an electronic means prescribed by practice direction.
(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.
(3)In this rule—
relevant address, of a person to be served, means—
(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
(c)for a corporation that does not have an address for service—its head office or its principal or registered office.

113Service in relation to a business

(1)This rule applies if—
(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.
(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.

r 113 amd 2012 SL No. 60 s 8

114Service in relation to a partnership

(1)An originating process against a partnership must be served—
(a)on 1 or more of the partners; or
(b)on a person at the principal place of business of the partnership in Queensland who appears to have control or management of the business there; or
(c)for a partnership registered under the Partnership Act 1891—at the registered office of the partnership.
(2)If the originating process is served under subrule (1), each of the partners who were partners in the partnership when the originating process was issued, including a partner who was outside Queensland at the time, is taken to have been served.
(3)The originating process must also be served on any person the plaintiff seeks to make liable as a partner but who was not a partner when the originating process was issued.

r 114 amd 2007 SL No. 96 s 5

Part 5 Other service

115Acceptance of service

(1)Despite parts 2, 3 and 4, a solicitor may accept service of a document for a party.
(2)The solicitor must make a note on a copy of the document to the effect that the solicitor accepts service for the party.
(3)The document is taken to have been served on the party, unless the party proves the solicitor did not have authority to accept service for the party.
(4)This rule applies whether or not personal service of the document is required under these rules.

116Substituted service

(1)If, for any reason, it is impracticable to serve a document in a way required under this chapter, the court may make an order substituting another way of serving the document.
(2)The court may, in the order, specify the steps to be taken, instead of service, for bringing the document to the attention of the person to be served.
(3)The court may, in the order, specify that the document is to be taken to have been served on the happening of a specified event or at the end of a specified time.
(4)The court may make an order under this rule even though the person to be served is not in Queensland or was not in Queensland when the proceeding started.

117Informal service

If—
(a)for any reason, a document is not served as required by this chapter but the document or a copy of it came into the possession of the person to be served; and
(b)the court is satisfied on evidence before it that the document came into the person’s possession on or before a particular day;

the court may, by order, decide that the possession of the document is service for these rules on the day it came into the person’s possession or another day stated in the order.

118Service on agent

(1)If a person living or carrying on business outside Queensland (the principal) enters into a contract in Queensland through an agent living or carrying on business in Queensland, the court may, without deciding the agent’s authority or business relationship with the principal, give leave for an originating process relating to a proceeding arising out of the contract to be served on the agent.
(2)The court must, in an order giving leave under subrule (1), state the time within which the principal must file a notice of intention to defend.
(3)The party serving the originating process on the agent must immediately send to the principal a copy of each of the order and originating process.
(4)The documents required to be sent under subrule (3) must be sent to the principal’s address outside Queensland by prepaid post.

119Service under contract

(1)This rule applies if—
(a)before a proceeding starts, the parties to the proceeding agree that a document relating to the proceeding may be served on a party, or someone else for the party, in a way or at a place, in Queensland or elsewhere, specified in the agreement; or
(b)after a proceeding starts, the parties to the proceeding agree that a document relating to the proceeding may be served on a party, or someone else for the party, in a way or at a place, in Queensland or elsewhere, specified in the agreement.
(2)The document may be served in accordance with the agreement.

120Affidavit of service

(1)If an affidavit of service of a document is required under these rules or an Act or law, the affidavit—
(a)for an affidavit of personal service—must be made by the person who served the document and include the following—
(i)the person’s full name;
(ii)the time, day and date the document was served;
(iii)the place of service;
(iv)the name of the person served and how the person was identified; or
(b)otherwise—
(i)must state the relevant dates and the facts showing service; and
(ii)may be made on information given to, or the belief of, the person causing the service; and
(iii)if made on information given to the person—must state the source of the information.
(2)An affidavit of service must—
(a)have the document filed with it as an exhibit or be written on the document; or
(b)if the document has been filed—mention the document in a way sufficient to enable the document to be identified.

121Identity of person served

For proving service, a statement by a person of his or her identity or that he or she holds a particular office or position is evidence of the identity or that the person holds the office or position.

122Special requirements for service by fax

(1)A document served by fax must include a cover page stating the following—
(a)the sender’s name and address;
(b)the name of the person to be served;
(c)the date and time of transmission;
(d)the total number of pages, including the cover page, transmitted;
(e)the telephone number from which the document is transmitted;
(f)the name and telephone number of a person to contact if there is a problem with the transmission;
(g)that the transmission is for service under a stated rule.
(2)An affidavit of service of a document by fax must include, as an exhibit, the transmission advice, generated by the sender’s fax machine, indicating the transmission was successful.

Part 6 Service outside Queensland

123Service outside Queensland

(1)This rule applies only to service of an originating process outside Queensland but within Australia.
(2)The originating process must be served in accordance with the Service and Execution of Process Act 1992 (Cwlth).

Part 7 Service outside, or emanating from outside, Australia

pt hdg amd 2011 SL No. 296 s 3

Division 1 Ordinary service outside Australia

Note—

The Trans-Tasman Proceedings Act 2010 (Cwlth) provides for service in New Zealand of initiating documents for certain civil proceedings started in Australian courts. See the Trans-Tasman Proceedings Act 2010 (Cwlth) part 2, division 2 which provides for service of initiating documents. See also the Trans-Tasman Proceedings Act 2010 (Cwlth), section 4 for the definitions initiating document and Australian court.

div hdg ins 2001 SL No. 281 s 4

div 1 note ins 2013 SL No. 100 s 3

124When service outside Australia permitted

(1)An originating process for any of the following may be served on a person outside Australia without the court’s leave—
(a)a proceeding based on a cause of action arising in Queensland;
(b)a proceeding about—
(i)property situated in Queensland; or
(ii)obtaining evidence for a future claim relating to property in Queensland;
(c)a proceeding in which an Act, deed, will, contract, obligation or liability affecting property in Queensland is sought to be interpreted, rectified, set aside or enforced;
(d)a proceeding for relief against a person domiciled or ordinarily resident in Queensland;
(e)a proceeding for—
(i)the administration of the estate of a person who died domiciled in Queensland; or
(ii)relief that might be obtained in a proceeding for the administration of the estate of a person who died domiciled in Queensland;
(f)a proceeding for the execution of a trust if—
(i)the trust is created or declared by an instrument; and
(ii)the person is a trustee; and
(iii)the execution relates to trust property in Queensland; and
(iv)the trust ought to be executed under the law of Queensland;
(g)a proceeding relating to a contract—
(i)made in Queensland; or
(ii)made by 1 or more parties carrying on business or residing in Queensland; or
(iii)made by or through an agent carrying on business or residing in Queensland on behalf of a principal carrying on business or residing outside Queensland; or
(iv)governed by the law of Queensland;
(h)a proceeding based on a breach of contract committed in Queensland, regardless of where the contract was made and whether or not the breach was preceded or accompanied by a breach (wherever occurring), rendering impossible the performance of a part of the contract that ought to be performed in Queensland;
(i)a proceeding based on a contract containing a condition by which the parties agree to submit to the jurisdiction of the court;
(j)a proceeding for the recovery of an amount payable under an Act to an entity in Queensland;

Note—

Entity includes a person and an unincorporated body—Acts Interpretation Act 1954, schedule 1.
(k)a proceeding based on a tort committed in Queensland;
(l)a proceeding for damage—
(i)all or part of which was suffered in Queensland; and
(ii)caused by a tortious act or omission (wherever happening);
(m)a proceeding affecting a person in relation to the person’s membership of—
(i)a corporation incorporated in Queensland; or
(ii)a partnership, association or other entity formed, or carrying on any part of its affairs, in Queensland;
(n)a proceeding for a contribution or indemnity for a liability enforceable in the court;
(o)a proceeding for an injunction ordering a defendant or respondent to do, or refrain from doing, anything in Queensland (whether or not damages are also claimed);
(p)a proceeding properly brought in Queensland against a person in which another person outside Queensland is a necessary or proper party to the proceeding;
(q)a proceeding brought under the Civil Aviation (Carriers’ Liability) Act 1959 (Cwlth)—
(i)by a resident of Queensland; or
(ii)in relation to damage that happened in Queensland;
(r)a proceeding in which a person has submitted to the jurisdiction of the court;
(s)a proceeding in which the subject matter of the proceeding, so far as it concerns the person, is property in Queensland;
(t)a proceeding concerning the interpretation, effect or enforcement of—
(i)an Act; or
(ii)an Imperial or Commonwealth Act affecting property in Queensland;
(u)a proceeding concerning the effect or enforcement of an executive, ministerial or administrative act done, or purported to have been done, under an Act;
(v)a proceeding relating to an arbitration held in Queensland;
(w)a proceeding about a person under a legal incapacity who is domiciled or present in, or a resident of, Queensland;
(x)a proceeding, so far as it concerns the person, falling partly within 1 or more of paragraphs (a) to (w).
(2)Each paragraph of subrule (1) is a separate ground for deciding whether an originating process may be served outside Australia under this rule.
(3)Also, this rule does not limit or extend the jurisdiction a court has apart from this rule.

r 124 amd 2001 SL No. 281 s 5; 2009 SL No. 162 s 2 sch; 2014 SL No. 320 s 5

125Service of counterclaim or third party notice

(1)This rule applies—
(a)to a counterclaim against a plaintiff and another person if the person against whom the counterclaim is made is not already a party to the proceeding; and
(b)to a third party notice.
(2)A counterclaim or third party notice may be served outside Australia without the court’s leave if the claim made by the defendant in the counterclaim or third party notice is of a kind that, if the claim were made by claim or other originating process, the originating process could be served outside Australia under rule 124.
(3)If subrule (2) does not apply, the court may, by leave, allow service outside Australia of a counterclaim or third party notice.

r 125 prev r 125 om 2001 SL No. 107 s 3

pres r 125 (prev r 128) reloc and renum 2001 SL No. 107 s 5

126Setting aside service

The court must, on application by a defendant or respondent, set aside service of an originating process under this part if service of it is not authorised under rule 124.

127Service of other process by leave

The court may, by leave, allow service outside Australia of the following—
(a)an originating process for a proceeding under an Act if service is not authorised under rule 124;
(b)an application, order, notice or document in a pending proceeding.

r 127 amd 2001 SL No. 107 s 4

128Order for service outside Australia

(1)On making an order for service outside Australia, the court may give directions as to the time for filing a notice of intention to defend or for attendance before the court or otherwise.
(2)If a document is served outside Australia under an order of the court, a copy of each of the following must be served with the document—
(a)the order;
(b)each affidavit made in support of the application for the order;
(c)unless the court otherwise orders, an exhibit mentioned in the affidavit.

r 128 (prev r 129) renum 2001 SL No. 107 s 6

129How service outside Australia to be performed

(1)If service outside Australia of an originating process, a counterclaim or a third party notice is authorised under this part, then parts 1 to 5 apply to the service.
(2)However, nothing in these rules, or in any order of the court made under these rules, authorises or requires the doing of anything in a country in which service is to be effected that is contrary to the law of the country.

r 129 ins 2001 SL No. 107 s 7

Division 2 Service in convention countries

div hdg ins 2001 SL No. 281 s 6

130Service in convention countries

(1)This rule applies if a person—
(a)is required by a convention to serve a document in a convention country in accordance with the convention; or
(b)otherwise wants to serve a document in a convention country in accordance with a convention.
(2)A person serving a document in a convention country must lodge with the registrar—
(a)the document to be served; and
(b)if a particular way of service is required, a request for service in that way; and
(c)if English is not an official language of the convention country, a translation in an official language of the country, certified by the person making it to be a correct translation, of the documents mentioned in paragraphs (a) and (b); and
(d)the further copies of each of the documents mentioned in paragraphs (a) to (c) the registrar directs; and
(e)a request and undertaking under subrule (4).
(3)A certificate given in a translation of a document filed under subrule (2) must state the person’s full name and address and qualifications for making the translation.
(4)A request and undertaking lodged under subrule (2) must—
(a)request the registrar to send a sealed copy of the document to be served to the convention country for service on a specified person; and
(b)refer to the relevant convention; and
(c)include an undertaking by the person or the person’s solicitor to pay to the registrar the expenses incurred by the registrar in complying with the request.
(5)The registrar must give to the Attorney-General for transmission for service—
(a)the documents, stamped with the seal of the court; and
(b)if the judicial authority of the country requires a letter of request—the request.
(6)If, after the registrar sends documents to the Attorney-General under subrule (5), a certificate of service, attempted service or non-service is filed purporting to be a certificate from—
(a)a judicial authority or other responsible person in the convention country; or
(b)an Australian consular authority in the convention country;

the certificate is evidence of the matters stated in the certificate.

(7)If a person gives an undertaking under subrule (2) and does not, within 7 days after being given an account of the registrar’s expenses in complying with the request for service, pay to the registrar the expenses, the court may, on application by the registrar—
(a)order the person to pay the expenses to the registrar; and
(b)stay the proceeding until the unpaid amount is paid.
(8)Despite subrule (2)(e), the registrar may—
(a)require the person to provide security in a form satisfactory to the registrar for the anticipated expenses of complying with the request; and
(b)decline to proceed under subrule (5) until security is provided.

r 130 prev r 130 om 2001 SL No. 281 s 7

pres r 130 (prev r 129A) ins 2001 SL No. 281 s 6

renum 2001 SL No. 281 s 8

Division 3 Service under the Hague Convention

div hdg ins 2009 SL No. 162 s 4

Subdivision 1 Preliminary

Notes—

1This division was developed by the Council of Chief Justices’ Rules Harmonisation Committee and forms part of a scheme to implement Australia’s obligations under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Under the convention, the Attorney-General’s Department of the Commonwealth is designated as the Central Authority (under article 2 of the Hague Convention) and certain courts and government departments are, for certain purposes, designated as ‘other’ or ‘additional’ authorities (under article 18 of the Hague Convention).
2This division provides (in subdivision 2) for service in overseas Hague Convention countries of local judicial documents (documents relating to a proceeding in the Supreme Court, the District Court or a Magistrates Court) and (in subdivision 3) for default judgment in a proceeding in the court after service overseas of such a document. Subdivision 4, on the other hand, deals with service by the Supreme Court or arranged by the court in its role as an other or additional authority, of judicial documents emanating from overseas convention countries.
3The Attorney-General’s Department of the Commonwealth maintains a copy of the Hague Convention, a list of all Hague Convention countries, details of declarations and objections made under the Hague Convention by each of those countries and the names and addresses of the central and other authorities of each of those countries. A copy of the Hague Convention can be found at http://www.hcch.net.

sdiv hdg ins 2009 SL No. 162 s 4

sdiv 1 note amd 2011 SL No. 296 s 4

130ADefinitions for div 3

In this division—
additional authority, for a Hague Convention country, means an authority that is—
(a)for the time being designated by that country, under article 18 of the Hague Convention, to be an authority (other than the central authority) for that country; and
(b)competent to receive requests for service abroad emanating from Australia.
applicant, for a request for service abroad or for a request for service in Queensland, means the person on whose behalf service is requested.

Note—

The term applicant may have a different meaning in other provisions of these rules.

def applicant amd 2011 SL No. 296 s 5 (2)

central authority, for a Hague Convention country, means an authority that is for the time being designated by that country, under article 2 of the Hague Convention, to be the Central Authority for that country.
certificate of service means a certificate of service that has been completed for article 6 of the Hague Convention.
certifying authority, for a Hague Convention country, means the central authority for the country or some other authority that is for the time being designated by the country, under article 6 of the Hague Convention, to complete certificates of service in the form annexed to the Hague Convention.
civil proceeding means any judicial proceeding in relation to a civil or commercial matter.
defendant, for a request for service abroad of an initiating process, means the person on whom the initiating process is requested to be served.
foreign judicial document means a judicial document that originates in a Hague Convention country and relates to civil proceedings in a court of that country.

def foreign judicial document ins 2011 SL No. 296 s 5 (1)

forwarding authority means—
(a)for a request for service of a foreign judicial document in Queensland—the authority or judicial officer of the Hague Convention country in which the document originates that forwards the request (being an authority or judicial officer that is competent under the law of that country to forward a request for service under article 3 of the Hague Convention); or
(b)for a request for service of a local judicial document in a Hague Convention country—the registrar.

def forwarding authority ins 2011 SL No. 296 s 5 (1)

Hague Convention means the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965.
Hague Convention country means a country, other than Australia, that is a party to the Hague Convention.
initiating process means any document, including a counterclaim and a third party notice, by which a proceeding is commenced.
local judicial document means a judicial document relating to a civil proceeding in the Supreme Court, the District Court or a Magistrates Court.
registrar means the registrar of the Supreme Court.
request for service abroad means a request for service in a Hague Convention country of a local judicial document mentioned in rule 130D.
request for service in Queensland means a request for service in Queensland of a foreign judicial document mentioned in rule 130M(1).

def request for service in Queensland ins 2011 SL No. 296 s 5 (1)

r 130A ins 2009 SL No. 162 s 4

130BProvisions of this division to prevail

If the provisions of this division are inconsistent with any other provisions of these rules, the provisions of this division prevail to the extent of the inconsistency.

r 130B ins 2009 SL No. 162 s 4

amd 2013 SL No. 289 s 9

Subdivision 2 Service abroad of local judicial documents

sdiv hdg ins 2009 SL No. 162 s 4

130CApplication of sdiv 2

(1)Subject to subrule (2), this subdivision applies to service in a Hague Convention country of a local judicial document.
(2)This subdivision does not apply if service of the document is effected, without application of any compulsion, by an Australian diplomatic or consular agent mentioned in article 8 of the Hague Convention.

r 130C ins 2009 SL No. 162 s 4

130DApplication for request for service abroad

(1)A person may apply to the registrar, in the registrar’s capacity as a forwarding authority, for a request for service in a Hague Convention country of a local judicial document.
(2)The application must be accompanied by 3 copies of each of the following documents—
(a)a draft request for service abroad, which must be in the approved form;
(b)the document to be served;
(c)a summary of the document to be served, which must be in the approved form;
(d)if, under article 5 of the Hague Convention, the central authority or any additional authority of the country to which the request is addressed requires the document to be served to be written in, or translated into, the official language or 1 of the official languages of that country, a translation into that language of both the document to be served and the summary of the document to be served.
(3)The application must contain a written undertaking to the Supreme Court, signed by the lawyer on the record for the applicant in the proceeding to which the local judicial document relates or, if there is no lawyer on the record for the applicant in the proceeding, by the applicant—
(a)to be personally liable for all costs incurred—
(i)by the employment of a person to serve the documents to be served, being a person who is qualified to do so under the law of the Hague Convention country in which the documents are to be served; or
(ii)by the use of any particular method of service that has been requested by the applicant for the service of the documents to be served; and
(b)to pay the amount of those costs to the registrar within 28 days after receipt from the registrar of a notice specifying the amount of those costs under rule 130F(3); and
(c)to give such security for those costs as the registrar may require.
(4)The draft request for service abroad—
(a)must be completed (except for signature) by the applicant; and
(b)must state whether (if the time fixed for entering an appearance in the proceeding to which the local judicial document relates expires before service is effected) the applicant wants service to be attempted after the expiry of that time; and
(c)must be addressed to the central authority, or to an additional authority, for the Hague Convention country in which the person is to be served; and
(d)may state that the applicant requires a certificate of service that is completed by an additional authority to be countersigned by the central authority.
(5)A translation required under subrule (2)(d) must bear a certificate (in both English and the language used in the translation) signed by the translator stating—
(a)that the translation is an accurate translation of the documents to be served; and
(b)the translator’s full name and address and his or her qualifications for making the translation.

r 130D ins 2009 SL No. 162 s 4

amd 2011 SL No. 296 s 6

130EHow application to be dealt with

(1)If satisfied that the application and its accompanying documents comply with rule 130D, the registrar—
(a)must sign the request for service abroad; and
(b)must forward 2 copies of the relevant documents—
(i)if the applicant has asked for the request to be forwarded to a nominated additional authority for the Hague Convention country in which service of the document is to be effected—to the nominated additional authority; or
(ii)in any other case—to the central authority for the Hague Convention country in which service of the document is to be effected.
(2)The relevant documents mentioned in subrule (1)(b) are the following—
(a)the request for service abroad (duly signed);
(b)the document to be served;
(c)the summary of the document to be served;
(d)if required under rule 130D(2)(d), a translation into the relevant language of each of the documents mentioned in paragraphs (b) and (c).
(3)If not satisfied that the application or any of its accompanying documents complies with rule 130D, the registrar must inform the applicant of the respects in which the application or document fails to comply.

r 130E ins 2009 SL No. 162 s 4

130FProcedure on receipt of certificate of service

(1)Subject to subrule (5), on receipt of a certificate of service in due form in relation to a local judicial document to which a request for service abroad relates, the registrar—
(a)must arrange for the original certificate to be filed in the proceeding to which the document relates; and
(b)must send a copy of the certificate to—
(i)the lawyer on the record for the applicant in the proceeding; or
(ii)if there is no lawyer on the record for the applicant in the proceeding—the applicant.
(2)For subrule (1), a certificate of service is in due form if—
(a)it is in the approved form; and
(b)it has been completed by a certifying authority for the Hague Convention country in which service was requested; and
(c)if the applicant requires a certificate of service that is completed by an additional authority to be countersigned by the central authority, it has been so countersigned.
(3)On receipt of a statement of costs in due form in relation to the service of a local judicial document mentioned in subrule (1), the registrar must send to the lawyer or applicant who gave the undertaking mentioned in rule 130D(3) a notice specifying the amount of those costs.
(4)For subrule (3), a statement of costs is in due form if—
(a)it relates only to costs of a kind mentioned in rule 130D(3)(a); and
(b)it has been completed by a certifying authority for the Hague Convention country in which service was requested.
(5)Subrule (1) does not apply unless—
(a)adequate security to cover the costs mentioned in subrule (3) has been given under rule 130D(3)(c); or
(b)to the extent to which the security so given is inadequate to cover those costs, an amount equal to the amount by which those costs exceed the security so given has been paid to the registrar.

r 130F ins 2009 SL No. 162 s 4

130GPayment of costs

(1)On receipt of a notice under rule 130F(3) in relation to the costs of service, the lawyer or applicant, as the case may be, must pay to the registrar the amount specified in the notice as the amount of those costs.
(2)If the lawyer or applicant fails to pay that amount within 28 days after receiving the notice—
(a)except by leave of the court, the applicant may not take any further step in the proceeding to which the local judicial document relates until those costs are paid to the registrar; and
(b)the registrar may take such steps as are appropriate to enforce the undertaking for payment of those costs.

r 130G ins 2009 SL No. 162 s 4

130HEvidence of service

A certificate of service in relation to a local judicial document (being a certificate in due form within the meaning of rule 130F(2)) certifying that service of the document was effected on a specified date is, in the absence of any evidence to the contrary, sufficient proof that—
(a)service of the document was effected by the method specified in the certificate on that date; and
(b)if that method of service was requested by the applicant, that method is compatible with the law in force in the Hague Convention country in which service was effected.

r 130H ins 2009 SL No. 162 s 4

Subdivision 3 Default judgment following service abroad of initiating process

sdiv 3 (rr 130I–130L) ins 2009 SL No. 162 s 4

130IApplication of sdiv 3

This subdivision applies to a civil proceeding for which an initiating process has been forwarded following a request for service abroad to the central authority (or to an additional authority) for a Hague Convention country.

sdiv 3 (rr 130I–130L) ins 2009 SL No. 162 s 4

130JRestriction on power to enter default judgment if certificate of service filed

(1)This rule applies if—
(a)a certificate of service of initiating process has been filed in the proceeding (being a certificate in due form within the meaning of rule 130F(2)) stating that service has been duly effected; and
(b)the defendant has not appeared or filed a notice of address for service.
(2)In circumstances to which this rule applies, default judgment may not be given against the defendant unless the court is satisfied that—
(a)the initiating process was served on the defendant—
(i)by a method of service prescribed by the internal law of the Hague Convention country for the service of documents in a domestic proceeding on persons who are within its territory; or
(ii)if the applicant requested a particular method of service (being a method under which the document was actually delivered to the defendant or to his or her residence) and that method is compatible with the law in force in that country, by that method; or
(iii)if the applicant did not request a particular method of service, in circumstances where the defendant accepted the document voluntarily; and
(b)the initiating process was served in sufficient time to enable the defendant to enter an appearance in the proceeding.
(3)For subrule (2)(b)—
sufficient time means—
(a)42 days from the date specified in the certificate of service in relation to the initiating process as the date on which service of the process was effected; or
(b)such lesser time as the court considers, in the circumstances, to be a sufficient time to enable the defendant to enter an appearance in the proceeding.

sdiv 3 (rr 130I–130L) ins 2009 SL No. 162 s 4

130KRestriction on power to enter default judgment if certificate of service not filed

(1)This rule applies if—
(a)a certificate of service of initiating process has not been filed in the proceeding; or
(b)a certificate of service of initiating process has been filed in the proceeding (being a certificate in due form within the meaning of rule 130F(2)) stating that service has not been effected;

and the defendant has not appeared or filed a notice of address for service.

(2)If this rule applies, default judgment may not be given against the defendant unless the court is satisfied that—
(a)the initiating process was forwarded to the central authority, or to an additional authority, for the Hague Convention country in which service of the initiating process was requested; and
(b)a period that is adequate in the circumstances (being a period of not less than 6 months) has elapsed since the date on which initiating process was so forwarded; and
(c)every reasonable effort has been made—
(i)to obtain a certificate of service from the relevant certifying authority; or
(ii)to effect service of the initiating process;

as the case requires.

sdiv 3 (rr 130I–130L) ins 2009 SL No. 162 s 4

130LSetting aside judgment in default of appearance

(1)This rule applies if default judgment has been entered against the defendant in a proceeding to which this subdivision applies.
(2)If this rule applies, the court may set aside the judgment on the application of the defendant if it is satisfied that the defendant—
(a)without any fault on the defendant’s part, did not have knowledge of the initiating process in sufficient time to defend the proceeding; and
(b)has a prima facie defence to the proceeding on the merits.
(3)An application to have a judgment set aside under this rule may be filed—
(a)at any time within 1 year after the date on which the judgment was given; or
(b)after the expiry of that 1 year period, within such time after the defendant acquires knowledge of the judgment as the court considers reasonable in the circumstances.
(4)Nothing in this rule affects any other power of the court to set aside or vary a judgment.

sdiv 3 (rr 130I–130L) ins 2009 SL No. 162 s 4

Subdivision 4 Local service of foreign judicial documents

sdiv 4 (rr 130M–130P) ins 2011 SL No. 296 s 7

130MApplication of sdiv 4

(1)This subdivision applies to service in Queensland of a foreign judicial document in relation to which a due form of request for service has been forwarded to the court—
(a)by the Attorney-General’s Department of the Commonwealth, whether in the first instance or following referral under rule 130N; or
(b)by a forwarding authority.
(2)Subject to subrule (3), a request for service in Queensland is in due form if it is in the approved form and is accompanied by the following documents—
(a)the document to be served;
(b)a summary of the document to be served, which must be in the approved form;
(c)a copy of the request and of each of the documents mentioned in paragraphs (a) and (b);
(d)if either of the documents mentioned in paragraphs (a) and (b) is not in the English language, an English translation of the document.
(3)Any translation required under subrule (2)(d) must bear a certificate (in English) signed by the translator stating—
(a)that the translation is an accurate translation of the document; and
(b)the translator’s full name and address and his or her qualifications for making the translation.

sdiv 4 (rr 130M–130P) ins 2011 SL No. 296 s 7

130NCertain documents to be referred back to the Attorney-General’s Department of the Commonwealth

If, after receiving a request for service in Queensland, the registrar is of the opinion—
(a)that the request does not comply with rule 130M; or
(b)that the document to which the request relates is not a foreign judicial document; or
(c)that compliance with the request may infringe Australia’s sovereignty or security; or
(d)that the request seeks service of a document in some other State or Territory of the Commonwealth;

the registrar must refer the request to the Attorney-General’s Department of the Commonwealth together with a statement of his or her opinion.

Note—

The Attorney-General’s Department of the Commonwealth will deal with misdirected and non-compliant requests, make arrangements for the service of extrajudicial documents and assess and decide questions concerning Australia’s sovereignty and security.

sdiv 4 (rr 130M–130P) ins 2011 SL No. 296 s 7

130OService

(1)Subject to rule 130N, on receipt of a request for service in Queensland, the court must arrange for the service of the relevant documents in accordance with the request.
(2)The relevant documents mentioned in subrule (1) are the following—
(a)the document to be served;
(b)a summary of the document to be served;
(c)a copy of the request for service in Queensland;
(d)if either of the documents mentioned in paragraphs (a) and (b) is not in the English language, an English translation of the document.
(3)Service of the relevant documents may be effected by any of the following methods of service—
(a)by a method of service prescribed by the law in force in Queensland—
(i)for the service of a document of a kind corresponding to the document to be served; or
(ii)if there is no such corresponding kind of document, for the service of initiating process in proceedings in the Supreme Court;
(b)if the applicant has requested a particular method of service and that method is compatible with the law in force in Queensland, by that method;
(c)if the applicant has not requested a particular method of service and the person requested to be served accepts the document voluntarily, by delivery of the document to the person requested to be served.

sdiv 4 (rr 130M–130P) ins 2011 SL No. 296 s 7

130PAffidavit as to service

(1)If service of a document has been effected pursuant to a request for service in Queensland, the person by whom service has been effected must lodge with the court an affidavit specifying—
(a)the time, day of the week and date on which the document was served; and
(b)the place where the document was served; and
(c)the method of service; and
(d)the person on whom the document was served; and
(e)the way in which that person was identified.
(2)If attempts to serve a document pursuant to a request for service in Queensland have failed, the person by whom service has been attempted must lodge with the court an affidavit specifying—
(a)details of the attempts made to serve the document; and
(b)the reasons that have prevented service.
(3)When an affidavit as to service of a document has been lodged in accordance with this rule, the registrar—
(a)must complete a certificate of service, sealed with the seal of the court, on the reverse side of, or attached to, the request for service in Queensland; and
(b)must forward the certificate of service, together with a statement as to the costs incurred in relation to the service or attempted service of the document, directly to the forwarding authority from which the request was received.
(4)A certificate of service must be—
(a)in the approved form; or
(b)if a form of certificate of service that substantially corresponds to the approved form mentioned in paragraph (a) accompanies the request for service, in that accompanying form.

sdiv 4 (rr 130M–130P) ins 2011 SL No. 296 s 7

Division 4 Service of foreign legal process in Queensland other than under the Hague Convention

div hdg (prev pt 8 hdg) amd 2011 SL No. 296 s 8 (1)

reloc and renum 2011 SL No. 296 s 8 (2)

130QApplication of div 4

This division applies to a request for the service in Queensland of process of a court or tribunal of a foreign country that is not a Hague Convention country.

r 130Q ins 2011 SL No. 296 s 9

131Letter of request from foreign tribunal—procedure

(1)This rule applies if, in a civil or commercial matter before a court or tribunal of a foreign country (the foreign court)—
(a)the foreign court, by letter of request, requests service on a person in Queensland of any process or citation (the process) in the matter; and
(b)the Attorney-General, or a person authorised by the Attorney-General, sends the request to the Supreme Court indicating that effect should be given to the process.
(2)The following procedures apply—
(a)the letter of request must be accompanied by the following—
(i)if the letter is not in English—a translation of the letter in English;
(ii)2 copies of the process to be served;
(iii)either—
(A)2 copies of the process in English; or
(B)2 copies of the process each having a notation on it in English stating as precisely as possible the name and address of the person on whom the document is to be served, the nature of the document, and the names of the parties;
(b)if paragraph (a)(iii)(B) is complied with, it is not necessary to give the person served a translated copy of the process;
(c)the sheriff, or an agent of the sheriff, must serve the process personally under these rules;
(d)after serving the process, the person serving it must return to the registrar of the Supreme Court 1 copy of the process, affidavit evidence by the person serving the process of service of the process, and particulars of charges for the cost of serving it;
(e)the registrar must certify the correctness of the charges, or another amount properly payable for the cost of serving the process;
(f)the registrar must send the following to the person mentioned in subrule (1)(b) who sent the request to the Supreme Court—
(i)the letter of request for service received from the foreign court;
(ii)evidence of service of the process, with a certificate on it in the approved form stamped with the seal of the Supreme Court;
(iii)a certificate establishing the fact and the date of service or indicating why it has not been possible to serve the process;
(iv)a certificate stating the amount of the charges properly payable for the cost of serving it.

r 131 amd 2011 SL No. 296 s 8 (3)–(4)

reloc 2011 SL No. 296 s 8 (5)

132Orders for substituted service

On the application of the Crown solicitor, with the consent of the Attorney-General, the Supreme Court may, in relation to the service of process of a court or tribunal of a foreign country, make an order for substituted service or otherwise as may be necessary to give effect to these rules.

r 132 amd 2001 SL No. 281 s 9

133Noncompliance with rules

The Supreme Court may direct that effect is to be given to a letter of request for the service of process of a court or tribunal of a foreign country, even though rules 131 and 132 have not been complied with.

r 133 amd 2001 SL No. 281 s 10

Chapter 5 Notice of intention to defend

134Application of ch 5

This chapter applies only to a proceeding started by claim.

135No step without notice of intention to defend

(1)Except with the court’s leave, a defendant may take a step in a proceeding only if the defendant has first filed a notice of intention to defend.
(2)In this rule—
notice of intention to defend includes a conditional notice of intention to defend.

136Defendant may act by solicitor or in person

(1)A defendant may defend a proceeding by a solicitor or in person.
(2)However, if a defendant is a person under a legal incapacity, the defendant may defend the proceeding only by the person’s litigation guardian.

Note—

See rule 93 (Litigation guardian of person under a legal incapacity).
(3)In this rule—
defend includes file a notice of intention to defend.

r 136 amd 2000 SL No. 127 s 17; 2009 SL No. 162 s 2 sch; 2009 SL No. 265 s 73

137Time for notice of intention to defend

(1)In a proceeding started by a claim, a notice of intention to defend must be filed within 28 days after the day the claim is served.
(2)However, if the Service and Execution of Process Act 1992 (Cwlth) applies, a notice of intention to defend must be filed within the time limited by that Act.

138Late filing of notice of intention to defend

A defendant may file and serve a notice of intention to defend at any time before judgment, even if the defendant is in default of rule 137.

Note—

However, see chapter 9 (Ending proceedings early), part 1 (Default), division 2 (Proceedings started by claim) for the possible consequences of not filing within the time limited for filing.

r 138 amd 2000 SL No. 127 s 18; 2009 SL No. 162 s 2 sch

139Requirements for notice of intention to defend

(1)A notice of intention to defend must—
(a)be in the approved form; and
(b)have the defendant’s defence attached to it.
(2)A notice of intention to defend must be signed and dated.

140Contact details and address for service

(1)Rule 17 applies in relation to a notice of intention to defend as if the notice were a claim and the defendant were a plaintiff.
(2)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 defendant.

r 140 amd 2010 SL No. 129 s 5

141Filing notice of intention to defend

A notice of intention to defend must be filed in the registry from which the claim was issued.

142Service of notice of intention to defend

A sealed copy of the notice of intention to defend must be served at the plaintiff’s address for service—
(a)on the day on which it is filed; or
(b)as soon as practicable after it is filed.

143Possession of land

(1)A person who is not named in a claim as a defendant in a proceeding for the possession of land may file a notice of intention to defend if the person files an affidavit showing the person is in possession of the land either directly or by a tenant.
(2)Subject to rule 69, a person who files a notice of intention to defend under subrule (1) becomes a defendant by virtue of the notice and must—
(a)when filing the notice, file an application to the court for directions; and
(b)serve a copy of the notice, the affidavit mentioned in subrule (1) and the application mentioned in paragraph (a) on every other party to the proceeding.
(3)A notice of intention to defend under this rule may be confined to a specified part of the land.

144Conditional notice of intention to defend

(1)This rule does not apply to a defendant objecting to the starting of a proceeding in a district of a court other than in accordance with rule 35.

Note—

See rule 38 for objections to the starting of a proceeding other than in the correct district.
(2)A defendant who proposes to challenge the jurisdiction of the court or to assert an irregularity must file a conditional notice of intention to defend.
(3)Rule 139(1)(b) does not apply to a conditional notice of intention to defend.
(4)If a defendant files a conditional notice of intention to defend, the defendant must apply for an order under rule 16 within 14 days after filing the notice.
(5)The conditional notice of intention to defend becomes an unconditional notice of intention to defend if—

(a)the defendant does not apply for an order under rule 16 within the 14 days; or
(b)for a defendant who applies for an order under rule 16 within the 14 days—the application is determined and the order is not made.

(6)Within 7 days after a conditional notice of defence becomes an unconditional notice of intention to defend, the defendant must file a defence.
(7)A defendant who files an unconditional notice of intention to defend is taken to have submitted to the jurisdiction of the court and waived any irregularity in the proceeding.

r 144 amd 2000 SL No. 127 s 19; 2012 SL No. 150 s 11; 2014 SL No. 320 s 6

Chapter 6 Pleadings

Part 1 Introduction

145Application of pt 1

This part applies only to the following proceedings—
(a)a proceeding started by claim;
(b)a proceeding started by application if the court orders that pleadings must be served.

146Formal requirements

(1)A pleading must—
(a)state the number of the proceeding; and
(b)state the description of the pleading; and
(c)be filed and state the date on which it is filed; and
(d)be signed by the solicitor for the party filing it or, if the party appears or defends in person, the party; and
(e)be consecutively numbered on each page; and
(f)be divided into consecutively numbered paragraphs and, if necessary, subparagraphs, each containing, as far as practicable, a separate allegation; and
(g)if it is settled by counsel—state the counsel’s name.
(2)In addition, a pleading (other than a reply) must have on it a notice to the party on whom the pleading is served under rule 164 informing the party about the time for serving pleadings in response under rule 164.

r 146 amd 2000 SL No. 127 s 20

147[Repealed]

r 147 om 2000 SL No. 127 s 21

148Judgment pleaded

(1)Subrule (2) applies if a party pleads a judgment.
(2)The party pleading the judgment must, within 10 days after another party requests a copy of the judgment, deliver to the other party a copy of the judgment.
(3)If the party does not comply with subrule (2), the court may order the pleading to be struck out or amended.

r 148 amd 2000 SL No. 127 s 22

Part 2 Rules of pleading

149Statements in pleadings

(1)Each pleading must—
(a)be as brief as the nature of the case permits; and
(b)contain a statement of all the material facts on which the party relies but not the evidence by which the facts are to be proved; and
(c)state specifically any matter that if not stated specifically may take another party by surprise; and
(d)subject to rule 156, state specifically any relief the party claims; and
(e)if a claim or defence under an Act is relied on—identify the specific provision under the Act.
(2)In a pleading, a party may plead a conclusion of law or raise a point of law if the party also pleads the material facts in support of the conclusion or point.

150Matters to be specifically pleaded

(1)Without limiting rule 149, the following matters must be specifically pleaded—
(a)breach of contract or trust;
(b)every type of damage claimed including, but not limited to, special and exemplary damages;

Note—

See also rule 155 (Damages).
(c)defence under the Limitation of Actions Act 1974;
(d)duress;
(e)estoppel;
(f)fraud;
(g)illegality;
(h)interest (including the rate of interest and method of calculation) claimed;
(i)malice or ill will;
(j)misrepresentation;
(k)motive, intention or other condition of mind, including knowledge or notice;
(l)negligence or contributory negligence;
(m)payment;
(n)performance;
(o)part performance;
(p)release;
(q)undue influence;
(r)voluntary assumption of risk;
(s)waiver;
(t)want of capacity, including disorder or disability of mind;
(u)that a testator did not know and approve of the contents of a will;
(v)that a will was not properly made;
(w)wilful default;
(x)anything else required by an approved form or practice direction to be specifically pleaded.
(2)Also, any fact from which any of the matters mentioned in subrule (1) is claimed to be an inference must be specifically pleaded.
(3)If the plaintiff’s claim is for a debt or liquidated demand only (with or without a claim for interest), the plaintiff must state the following details in the statement of claim—
(a)particulars of the debt or liquidated demand;
(b)if interest is claimed—particulars as required by rule 159;
(c)the amount claimed for the costs of issuing the claim and attached statement of claim;
(d)a statement that the proceeding ends if the defendant pays the debt or liquidated demand and interest and costs claimed before the time for filing notice of intention to defend ends;
(e)a statement of the additional costs of obtaining judgment in default of notice of intention to defend.
(4)In a defence or a pleading after a defence, a party must specifically plead a matter that—
(a)the party alleges makes a claim or defence of the opposite party not maintainable; or
(b)shows a transaction is void or voidable; or
(c)if not specifically pleaded might take the opposite parties by surprise; or
(d)raises a question of fact not arising out of a previous pleading.
(5)If the plaintiff’s claim starts a wrongful death proceeding, the plaintiff must state in the statement of claim the person or persons for whose benefit the claim is brought.

r 150 amd 2009 SL No. 162 s 2 sch; 2012 SL No. 150 s 12

151Presumed facts

(1)A party is not required to plead a fact if—
(a)the law presumes the fact in the party’s favour; or
(b)the burden of proving the fact does not lie with the party.
(2)Subrule (1) does not apply if it is necessary to plead the fact—
(a)to comply with rule 149; or
(b)to meet a denial pleaded by another party.

152Spoken words and documents

Unless precise words are material, a pleading may state the effect of spoken words or a document as briefly as possible without setting out all of the spoken words or document.

153Condition precedent

(1)An allegation of the performance or occurrence of a condition precedent necessary for the case of a party is implied in the party’s pleading.
(2)A party who denies the performance or occurrence of a condition precedent must specifically plead the denial.

154Inconsistent allegations or claims in pleadings

(1)A party may make inconsistent allegations or claims in a pleading only if they are pleaded as alternatives.
(2)However, a party must not make an allegation or new claim that is inconsistent with an allegation or claim made in another pleading of the party without amending the pleading.

155Damages

(1)If damages are claimed in a pleading, the pleading must state the nature and amount of the damages claimed.
(2)Without limiting rule 150(1)(b), a party claiming general damages must include the following particulars in the party’s pleading—
(a)the nature of the loss or damage suffered;
(b)the exact circumstances in which the loss or damage was suffered;
(c)the basis on which the amount claimed has been worked out or estimated.
(3)If practicable, the party must also plead each type of general damages and state the nature of the damages claimed for each type.
(4)In addition, a party claiming damages must specifically plead any matter relating to the assessment of damages that, if not pleaded, may take an opposing party by surprise.

156General relief

The court may grant general relief or relief other than that specified in the pleadings irrespective of whether general or other relief is expressly claimed in the pleadings.

Part 3 Particulars

157Particulars in pleading

A party must include in a pleading particulars necessary to—
(a)define the issues for, and prevent surprise at, the trial; and
(b)enable the opposite party to plead; and
(c)support a matter specifically pleaded under rule 150.

158Particulars of damages

(1)If a party claims damages including money the party has paid or is liable to pay, the pleading must contain particulars of the payment or liability.
(2)If a party claims exemplary or aggravated damages, the party’s pleading must contain particulars of all matters relied on in support of the claim.

159Interest

(1)This rule applies if a party intends to apply to the court for an award of interest, whether under the Civil Proceedings Act 2011, part 8 or otherwise.
(2)This rule does not apply to a proceeding for damages for personal injury or death.
(3)The party must allege in the party’s pleading particulars of—
(a)the amount or amounts on which the interest is claimed; and
(b)the interest rate or rates claimed; and
(c)the day or days from which interest is claimed; and
(d)the method of calculation.
(4)However, the rate or rates of interest need not be separately specified if the party is claiming at the rate or rates specified in a practice direction.

r 159 amd 2012 SL No. 150 s 13

160Way to give particulars

(1)If rules 157 to 159 require particulars to be given, the particulars must be stated in the pleading or, if that is inconvenient, in a separate document mentioned in, and filed and served with, the pleading.
(2)Further particulars may be given by correspondence.
(3)A party giving further particulars must file a copy of the particulars.

161Application for order for particulars

(1)A party may apply to the court for an order for further and better particulars of the opposite party’s pleading.

Note—

Chapter 11 (Evidence), part 8 (Exchange of correspondence instead of affidavit evidence) applies to an application under this part. Note, particularly, rule 447 (Application to court).
(2)The court may, on an application under subrule (1), make the consequential orders and give the directions for the conduct of the proceeding the court considers appropriate.
(3)The making of an application under this rule does not extend the time for pleading.
(4)Particulars required under an order under this rule must repeat the relevant part of the order so the particulars are self-explanatory.

r 161 amd 2009 SL No. 162 s 2 sch

162Striking out particulars

(1)This rule applies if a particular—
(a)has a tendency to prejudice or delay the fair trial of the proceeding; or
(b)is unnecessary or scandalous; or
(c)is frivolous or vexatious; or
(d)is otherwise an abuse of the process of the court.
(2)The court, at any stage of the proceeding, may strike out the particular and order the costs of the application to be paid on the indemnity basis.
(3)On the hearing of an application under subrule (2), the court is not limited to receiving evidence about the particular.

163Failure to give particulars

If a party does not comply with an order made under rule 161, the court may make the order, including a judgment, it considers appropriate.

Part 4 Progress of pleading

164Time for serving answer to counterclaim and reply

(1)Unless the court orders otherwise, any answer to counterclaim must be filed and served within—
(a)14 days after the day the counterclaim is served; or
(b)if the defendant to the counterclaim is not a party to the original proceeding, 28 days after the day the counterclaim is served.
(2)Unless the court orders otherwise, any reply must be filed and served within 14 days after the day of the service of the defence or answer to counterclaim.

Note—

See chapter 9 (Ending proceedings early), part 1 (Default) for the consequence of default.

r 164 amd 2009 SL No. 162 s 2 sch

165Answering pleadings

(1)A party may, in response to a pleading, plead a denial, a non-admission, an admission or another matter.
(2)A party who pleads a non-admission may not give or call evidence in relation to a fact not admitted, unless the evidence relates to another part of the party’s pleading.

166Denials and non-admissions

(1)An allegation of fact made by a party in a pleading is taken to be admitted by an opposite party required to plead to the pleading unless—
(a)the allegation is denied or stated to be not admitted by the opposite party in a pleading; or
(b)rule 168 applies.
(2)However, there is no admission under subrule (1) because of a failure to plead by a party who is, or was at the time of the failure to plead, a person under a legal incapacity.
(3)A party may plead a non-admission only if—
(a)the party has made inquiries to find out whether the allegation is true or untrue; and
(b)the inquiries for an allegation are reasonable having regard to the time limited for filing and serving the defence or other pleading in which the denial or non-admission of the allegation is contained; and
(c)the party remains uncertain as to the truth or falsity of the allegation.
(4)A party’s denial or non-admission of an allegation of fact must be accompanied by a direct explanation for the party’s belief that the allegation is untrue or can not be admitted.
(5)If a party’s denial or non-admission of an allegation does not comply with subrule (4), the party is taken to have admitted the allegation.
(6)A party making a non-admission remains obliged to make any further inquiries that may become reasonable and, if the results of the inquiries make possible the admission or denial of an allegation, to amend the pleading appropriately.
(7)A denial contained in the same paragraph as other denials is sufficient if it is a specific denial of the allegation in response to which it is pleaded.

167Unreasonable denials and non-admissions

If the court considers an allegation of fact denied or not admitted should have been admitted, the court may order the party who denied or did not admit the allegation to pay additional costs caused by the denial or non-admission.

168Implied non-admission

(1)Every allegation of fact made in the last pleading filed and served before the pleadings close is taken to be the subject of a non-admission and rule 165(2) then applies.
(2)However, nothing in these rules prevents a party at any time admitting an allegation contained in a pleading.

r 168 amd 2000 SL No. 127 s 23; 2004 SL No. 115 s 5

169Close of pleadings

The pleadings in a proceeding close—
(a)if a pleading is served after the defence or answer to a counterclaim—on service of the pleading; or
(b)otherwise—14 days after service of the defence.

170Confession of defence

(1)If the defendant alleges a defence that arose after the proceeding was started, the plaintiff may file and serve a confession of defence.
(2)The plaintiff may, on filing a confession of defence, obtain a judgment for costs to be assessed up to the day the defence was served, unless the court otherwise orders.
(3)In this rule—
defendant includes a defendant to a counterclaim.

171Striking out pleadings

(1)This rule applies if a pleading or part of a pleading—
(a)discloses no reasonable cause of action or defence; or
(b)has a tendency to prejudice or delay the fair trial of the proceeding; or
(c)is unnecessary or scandalous; or
(d)is frivolous or vexatious; or
(e)is otherwise an abuse of the process of the court.
(2)The court, at any stage of the proceeding, may strike out all or part of the pleading and order the costs of the application to be paid by a party calculated on the indemnity basis.
(3)On the hearing of an application under subrule (2), the court is not limited to receiving evidence about the pleading.

Part 5 Particular pleadings

Division 1 Various

172Defence of tender

If a defendant pleads the defence of tender before the proceeding was started, the court may order the defendant to pay the amount tendered into court.

173Set-off

(1)A defendant may rely on set-off (whether or not of an ascertained amount) as a defence to all or part of a claim made by the plaintiff whether or not it is also included as a counterclaim.
(2)If the amount of a set-off is more than the amount of the claim against which it is set off, then, regardless of whether the set-off is pleaded as a counterclaim—
(a)the set-off may be treated as a counterclaim; and
(b)the court may give judgment for the amount of the difference or grant the defendant other relief to which the court considers the defendant is entitled.

Examples of other relief under subrule (2)(b)—

injunction, or stay, if within the court’s jurisdiction
(3)Despite subrules (1) and (2)—
(a)if the court considers a set-off can not be conveniently dealt with in a proceeding, the court may set aside a defence or counterclaim in the proceeding by way of set-off and may order that the set-off be dealt with in a separate proceeding; or
(b)if the court considers a set-off should not be allowed, the court may set aside a defence or counterclaim by way of set-off.

174Defamation pleadings

If in a proceeding for defamation the plaintiff intends to allege that the defendant was actuated by ill will to the plaintiff or by another improper motive, the plaintiff must allege in a reply the facts from which the ill will or improper motive is to be inferred.

Division 2 Counterclaims

175Application of div 2

This division applies to a counterclaim and an answer to a counterclaim with necessary changes and, in particular, as if the plaintiff in the original proceeding were a defendant and the defendant a plaintiff.

176Counterclaim after issue of claim

A counterclaim may be made in relation to a cause of action arising after the issue of the claim.

177Counterclaim against plaintiff

In a proceeding, the defendant may make a counterclaim against a plaintiff, instead of bringing a separate proceeding.

178Counterclaim against additional party

(1)A defendant may make a counterclaim against a person other than the plaintiff (whether or not already a party to the proceeding) if—
(a)the plaintiff is also made a party to the counterclaim; and
(b)either—
(i)the defendant alleges that the other person is liable with the plaintiff for the subject matter of the counterclaim; or
(ii)the defendant claims against the other person relief relating to or connected with the original subject matter of the proceeding.
(2)If a defendant counterclaims against a person who is not a party to the original proceeding, the defendant must—
(a)make the counterclaim; and
(b)serve the defence and counterclaim and the plaintiff’s statement of claim on the person within the time allowed for service on a plaintiff.
(3)A person not a party to the original proceeding who is included as a defendant to a counterclaim becomes a party to the proceeding on being served with the defence and counterclaim.
(4)If a defendant makes a counterclaim against a person not a party to the original proceeding, chapters 2, 4 and 5 and chapter 9, part 1 apply as if—
(a)the counterclaim were a proceeding started by a claim; and
(b)the party making the counterclaim were a plaintiff; and
(c)the party against whom the counterclaim is made were a defendant.

179Pleading and serving counterclaim

A counterclaim must be in the approved form and must be included in the same document and served within the same time as the defence.

180Answer to counterclaim

A defendant to a counterclaim may plead to the counterclaim by serving an answer to the counterclaim under these rules.

181Conduct of counterclaim

(1)These rules apply to the conduct of a counterclaim with necessary changes as if—
(a)the plaintiff on the counterclaim were the plaintiff in an original proceeding; and
(b)the defendant to the counterclaim were the defendant to an original proceeding.
(2)Chapter 4 does not apply to a defendant to a counterclaim who is a party to the original proceeding.
(3)Subject to rule 182, a counterclaim must be tried at the trial of the plaintiff’s claim.

182Exclusion of counterclaim

The court may, at any time, exclude a counterclaim from the proceeding in which the counterclaim is made and give the directions the court considers appropriate about the conduct of the counterclaim.

183Counterclaim after judgment, stay etc. of original proceeding

A counterclaim may proceed after judgment is given in the original proceeding or after the original proceeding is stayed, dismissed or discontinued.

184Judgment for balance

If a defendant establishes a counterclaim against the plaintiff and there is a balance in favour of 1 of the parties, the court may give judgment for the balance.

185Stay of claim

If the defendant does not plead a defence but makes a counterclaim, the court may stay the enforcement of a judgment given against the defendant until the counterclaim is decided.

Division 3 Admissions

186Application of div 3

This division applies only to proceedings started by claim.

187Voluntary admission

A party to a proceeding may, in addition to an admission in a pleading, by notice served on another party, admit, in favour of the other party, for the proceeding only, the facts specified in the pleading or notice.

188Withdrawal of admission

A party may withdraw an admission made in a pleading or under rule 187 only with the court’s leave.

189Notice to admit facts or documents

(1)A party to a proceeding (the first party) may, by notice served on another party ask the other party to admit, for the proceeding only, the facts or documents specified in the notice.
(2)If the other party does not, within 14 days, serve a notice on the first party disputing the fact or the authenticity of the document, the other party is taken to admit, for the proceeding only, the fact or the authenticity of the document specified in the notice.
(3)The other party may, with the court’s leave, withdraw an admission taken to have been made by the party under subrule (2).
(4)If the other party serves a notice under subrule (2) disputing a fact or the authenticity of a document and afterwards the fact or the authenticity of the document is proved in the proceeding, the party must pay the costs of proof, unless the court otherwise orders.

190Admissions

(1)If an admission is made by a party, whether in a pleading or otherwise after the start of the proceeding, the court may, on the application of another party, make an order to which the party applying is entitled on the admission.
(2)The court may give judgment or make another order even though other questions in the proceeding have not been decided.
(3)The court may, instead of assessing the amount claimed, make a judgment conditional on the assessment of damages under chapter 13, part 8.
(4)If the court gives judgment under subrule (3), the court must specify in the order the court to perform the assessment under rule 507.

Part 6 Third party and similar proceedings

191Explanation of pt 6

(1)This part provides for a third party procedure in a proceeding started by claim.
(2)A third party proceeding starts when the third party notice is issued.
(3)In addition to the provisions of this part, rules 16 to 18, 20 and 23 apply in relation to a third party notice as if the notice were a claim and the defendant making the claim were a plaintiff and the third party were a defendant.

192Reason for third party procedure

A defendant may file a third party notice if the defendant wants to—
(a)claim against a person who is not already a party to the proceeding a contribution or indemnity; or
(b)claim against a person who is not already a party to the proceeding relief—
(i)relating to or connected with the original subject matter of the proceeding; and
(ii)substantially the same as some relief claimed by the plaintiff; or
(c)require a question or issue relating to or connected with the original subject matter of the proceeding to be decided not only as between the plaintiff and the defendant but also as between either of them and a person not already a party to the proceeding.

193Content of third party notice

(1)A third party notice must be in the approved form.
(2)In a third party notice, a defendant must—
(a)state briefly the nature of the claim made or relief sought against the third party; and
(b)attach a statement of claim to the notice, unless the court otherwise orders.

194Filing third party notice

(1)Unless the court gives leave—
(a)a third party notice may not be filed by a defendant until the defendant has filed a defence; and
(b)a third party notice must be filed within 28 days after the end of whichever of the following periods ends last—
(i)the time limited for the filing of the defence of the defendant who makes the third party claim (the prescribed period);
(ii)if the plaintiff agrees to an extension of the prescribed period—the period agreed to.
(2)An application for leave to file a third party notice must be served on the plaintiff.
(3)However, the court may order the application to be served on another party who has filed a notice of intention to defend.
(4)If the court gives leave to the defendant to file a third party notice, it may give directions about filing and serving the notice.

195Serving third party notice

(1)A defendant who files a third party notice must serve it on the third party—
(a)as soon as practicable after it is issued; and
(b)in the same way as an originating process is served on a defendant.
(2)A copy of the following documents must be served with the third party notice—
(a)any order giving leave to file or serve the notice;
(b)the claim;
(c)all pleadings filed in the proceeding.
(3)As soon as practicable after serving the third party notice on the third party, the defendant must also serve a copy of the notice on the plaintiff and all parties who have filed a notice of intention to defend.

196Effect of service on third party

On being served with a third party notice, the third party becomes a party to the proceeding with the same rights in relation to the third party’s defence to a claim made against the third party in the notice as the third party would have if sued in the ordinary way by the defendant.

197Notice of intention to defend by third party

Chapter 5 applies, with necessary changes, to a proceeding started by a third party notice as if the notice were a third party claim, the defendant making the claim were a plaintiff and the third party were a defendant.

198Third party defence

(1)The third party may file and serve a defence within 28 days after the day the third party is served with the statement of claim on the third party.
(2)The third party may, in the defence to the third party notice, deny a plaintiff’s allegations against a defendant and allege a matter showing a plaintiff’s claim against a defendant is not maintainable.

199Pleadings

A party who files a pleading after the filing of a third party notice must serve the pleading on all other parties who have an address for service.

200Counterclaim by third party

(1)A third party who has a claim against the defendant who makes the third party claim may counterclaim against the defendant.
(2)The third party may include the plaintiff or another person as a defendant to the counterclaim if the person could be included as a defendant if the third party brought a separate proceeding.
(3)The counterclaim starts when it is issued.
(4)Rule 178 applies to a counterclaim by a third party with necessary changes.

201Default

(1)This rule applies if—
(a)a default judgment is given for the plaintiff against the defendant by whom a third party was included; and
(b)the third party has not filed a notice of intention to defend or a defence.
(2)When the time for filing a notice of intention to defend or a defence ends—
(a)the third party—
(i)is taken to admit a claim stated in the third party notice or statement of claim; and
(ii)is bound by the default judgment between the plaintiff and the defendant so far as it is relevant to a claim, question or issue stated in the notice or statement of claim; and
(b)the defendant—
(i)at any time after satisfaction of the default judgment, or, with the court’s leave, before satisfaction, may obtain a judgment against the third party for a contribution or indemnity claimed in the notice or statement of claim; and
(ii)with the court’s leave, may obtain a judgment against the third party for other relief or remedy claimed in the notice or statement of claim.
(3)The court may set aside or vary the judgment against the third party.
(4)Chapter 9, part 1, division 2, applies for a third party procedure as if the third party notice were a claim, the defendant making the claim were a plaintiff and the third party were a defendant.

202Disclosure

(1)A duty of disclosure arises between a third party and the defendant who included the third party only if the third party files a defence.
(2)A duty of disclosure arises between a third party and a plaintiff only if the third party denies the plaintiff’s allegations against the defendant or alleges another matter showing the plaintiff’s claim against the defendant is not maintainable.

Note—

See rule 211 (Duty of disclosure).
(3)However, a duty of disclosure may arise between a third party and another party if the court so orders.

r 202 amd 2009 SL No. 162 s 2 sch

203Trial

(1)A third party may appear at, and take part in, the trial of the proceeding as the court directs.
(2)At the trial, the issues between the defendant who included the third party and the third party must be tried concurrently with the issues between the plaintiff and the defendant, unless the court otherwise orders.

204Extent third party bound by judgment between plaintiff and defendant

In a proceeding, the court may make an order or give a direction about the extent to which a third party is bound by a judgment between a plaintiff and a defendant.

205Judgment between defendant and third party

(1)In a proceeding, the court may give judgment in favour of—
(a)a defendant by whom a third party was included against the third party; or
(b)the third party against the defendant.
(2)If—
(a)judgment is given in favour of the plaintiff against a defendant; and
(b)judgment is given in favour of the defendant against a third party;

the judgment against the third party may be enforced only if—

(c)the judgment against the defendant has been satisfied; or
(d)the court orders otherwise.

206Claim against another party

(1)A party may claim against another party to the proceeding relief of the kind mentioned in rule 192 by filing and serving a third party notice under this rule.
(2)Subrule (1) does not apply if the claim could be made by counterclaim in the proceeding.
(3)If a party files and serves a third party notice under this rule—
(a)the party on whom it is served is not required to file a notice of intention to defend if the party has filed a notice of intention to defend in the proceeding or is a plaintiff; and
(b)this part otherwise applies with necessary changes as if—
(i)the party filing and serving the notice were a defendant filing and serving a third party notice; and
(ii)the party on whom the notice is served were a third party.

r 206 amd 2001 SL No. 107 s 8

207Subsequent parties

(1)If a third party has filed a notice of intention to defend, this part applies, with necessary changes, as if the third party were a defendant.
(2)If a person joined as a party (a fourth party) by a third party has filed a notice of intention to defend, this part as applied by this rule must have effect as regards the fourth party and any other further person or persons included and so on successively.

208Contribution under Law Reform Act 1995

If the only relief claimed by a defendant is a contribution under the Law Reform Act 1995, section 6 against another defendant, the defendant may file and serve a notice claiming contribution without further pleading.

Chapter 7 Disclosure

Part 1 Preliminary

pt hdg (prev pt 1AA hdg) ins 2018 SL No. 127 s 52

renum 2018 SL No. 127 s 54

209Application of chapter

(1)This chapter applies to the following types of proceeding—
(a)a proceeding started by claim;
(b)a proceeding in which the court has made an order under rule 14 ordering the proceeding to continue as if started by claim;
(c)if the court directs—a proceeding started by application.
(2)This chapter applies to all parties, including a party who is a young person and a litigation guardian of a young person.
(3)This chapter does not affect—
(a)the right of a party to inspect a document if the party has a common interest in the document with the party who has possession or control of the document; or
(b)another right of access to the document other than under this chapter.

r 209 om 2018 SL No. 127 s 51

ins 2018 SL No. 127 s 52

Part 2 Disclosure by parties

pt hdg (prev pt 1 hdg) renum 2018 SL No. 127 s 54

Division 1 Disclosure and inspection of documents

210Nature of disclosure

In a proceeding, disclosure is the delivery or production of documents in accordance with this part.

211Duty of disclosure

(1)A party to a proceeding has a duty to disclose to each other party each document—
(a)in the possession or under the control of the first party; and
(b)directly relevant to an allegation in issue in the pleadings; and
(c)if there are no pleadings—directly relevant to a matter in issue in the proceeding.

Note—

Under the Acts Interpretation Act 1954, schedule 1

document includes—

(a)any paper or other material on which there is writing; and
(b)any paper or other material on which there are marks, figures, symbols or perforations having a meaning for a person qualified to interpret them; and
(c)any disc, tape or other article or any material from which sounds, images, writings or messages are capable of being produced or reproduced (with or without the aid of another article or device).

(2)The duty of disclosure continues until the proceeding is decided.
(3)An allegation remains in issue until it is admitted, withdrawn, struck out or otherwise disposed of.

r 211 amd 2009 SL No. 162 s 2 sch; 2014 SL No. 320 s 5

212Documents to which disclosure does not apply

(1)The duty of disclosure does not apply to the following documents—
(a)a document in relation to which there is a valid claim to privilege from disclosure;
(b)a document relevant only to credit;
(c)an additional copy of a document already disclosed, if it is reasonable to suppose the additional copy contains no change, obliteration or other mark or feature likely to affect the outcome of the proceeding.
(2)A document consisting of a statement or report of an expert is not privileged from disclosure.

213Privilege claim

(1)This rule applies if—
(a)a party claims privilege from disclosure of a document; and
(b)another party challenges the claim.
(2)The party making the claim must, within 7 days after the challenge, file and serve on the other party an affidavit stating the claim.
(3)The affidavit must be made by an individual who knows the facts giving rise to the claim.

214Disclosure by delivery of list of documents and copies

(1)Subject to rules 216 and 223, a party to a proceeding performs the duty of disclosure by—
(a)delivering to the other parties in accordance with this part a list of the documents to which the duty relates and the documents in relation to which privilege from disclosure is claimed (the list of documents); and
(b)at a party’s request, delivering to the party copies of the documents mentioned in the list of documents, other than the documents in relation to which privilege from disclosure is claimed.
(2)The times for the delivery of lists under subrule (1)(a) are as follows—
(a)if an order for disclosure is made before the close of pleadings—the times stated in the order;
(b)if an application for a summary decision is made within 28 days after the close of pleadings and the proceeding is not entirely disposed of when the application is decided—within 28 days after the decision;
(c)if, as a result of a further pleading or amended pleading, additional documents are subject to disclosure—within 28 days after the further pleading or amended pleading is delivered;
(d)if the first occasion on which a document comes into the possession or under the control of the party, or is located by the party, happens after a time mentioned in paragraph (a) to (c)—within 7 days after the occasion happens;
(e)otherwise—within 28 days after the close of pleadings.
(3)A copy of a document requested under subrule (1)(b) must be delivered within 14 days after the request.

r 214 amd 2011 SL No. 296 s 10

215Requirement to produce original documents

Despite rule 214, a party (the first party) may require another party to produce for inspection of the first party specified original documents of which copies are, or are to be, disclosed.

216Disclosure by inspection of documents

(1)This rule applies if—
(a)it is not convenient for a party to deliver documents under rule 214 because of the number, size, quantity or volume of the documents or some of the documents; or
(b)a requirement for production of documents is made of a party under rule 215.
(2)If this rule applies, the party must effect disclosure by—
(a)producing the documents for inspection at the time specified in rule 214(2) or (3); and
(b)notifying the other party in writing of a convenient place and time at which the documents may be inspected.

r 216 amd 2011 SL No. 296 s 11

217Procedure for disclosure by producing documents

(1)This rule applies if a party discloses documents by producing them.
(2)The documents must be—
(a)contained together and arranged in a way making the documents easily accessible to, and capable of convenient inspection by, the party to whom the documents are produced; and
(b)identified in a way enabling particular documents to be retrieved easily on later occasions.
(3)The party producing the documents must—
(a)provide facilities (including mechanical and computerised facilities) for the inspection and copying of the documents; and
(b)make available a person who is able to explain the way the documents are arranged and help locate and identify particular documents or classes of documents; and
(c)provide a list of the documents for which the party claims privilege.
(4)The arrangement of the documents when in use—
(a)must not be disturbed more than is necessary to achieve substantial compliance with subrule (2); and
(b)if the party to whom the documents are produced for inspection so requires—must not be disturbed at all.
(5)For subrule (2), the documents may—
(a)be contained by files, folders or in another way; and
(b)be arranged—
(i)according to topic, class, category or allegation in issue; or
(ii)by an order or sequence; or
(iii)in another way; and
(c)be identified by a number, description or another way.
(6)The person made available under subrule (3)(b) must, if required by the person inspecting the documents—
(a)explain to the person the way the documents are arranged; and
(b)help the person locate and identify particular documents or classes of documents.

r 217 amd 2000 SL No. 127 s 24

218[Repealed]

r 218 om 2000 SL No. 127 s 25

219Costs

Subject to rule 220, a party who does not make use of the opportunity to inspect documents under a notice under rule 216 may not inspect the documents unless the party tenders an amount for the reasonable costs of providing another opportunity for inspection or the court otherwise orders.

220Deferral of disclosure

(1)A party (the first party) may give to another party a written notice stating documents relating to a specified question or of a specified class are not to be disclosed to the first party until asked by the first party at a time that is reasonable having regard to the stage of the proceeding.
(2)The other party may disclose to the first party a document to which the notice relates only if the first party asks for its disclosure.

221Disclosure of document relating only to damages

A party may disclose to another party a document relating only to damages only if the other party asks for its disclosure.

222Inspection of documents referred to in pleadings or affidavits

A party may, by written notice, require another party in whose pleadings, particulars or affidavits mention is made of a document—
(a)to produce the document for the inspection of the party making the requirement or the solicitor for the party; and
(b)to permit copies of the document to be made.

223Court orders relating to disclosure

(1)The court may order a party to a proceeding to disclose to another party a document or class of documents by—
(a)delivering to the other party in accordance with this part a copy of the document, or of each document in the class; or
(b)producing for the inspection of the other party in accordance with this part the document, or each document in the class.
(2)The court may order a party to a proceeding (the first party) to file and serve on another party an affidavit stating—
(a)that a specified document or class of documents does not exist or has never existed; or
(b)the circumstances in which a specified document or class of documents ceased to exist or passed out of the possession or control of the first party.
(3)The court may order that delivery, production or inspection of a document or class of documents for disclosure—
(a)be provided; or
(b)not be provided; or
(c)be deferred.
(4)An order mentioned in subrule (1) or (2) may be made only if—
(a)there are special circumstances and the interests of justice require it; or
(b)it appears there is an objective likelihood—
(i)the duty to disclose has not been complied with; or
(ii)a specified document or class of documents exists or existed and has passed out of the possession or control of a party.
(5)If, on an application for an order under this rule, objection is made to the disclosure of a document (whether on the ground of privilege or another ground), the court may inspect the document to decide the objection.

224Relief from duty to disclose

(1)The court may order a party be relieved, or relieved to a specified extent, of the duty of disclosure.
(2)Without limiting subrule (1), the court may, in deciding whether to make the order, have regard to the following—
(a)the likely time, cost and inconvenience involved in disclosing the documents or classes of documents compared with the amount involved in the proceeding;
(b)the relative importance of the question to which the documents or classes of documents relate;
(c)the probable effect on the outcome of the proceeding of disclosing or not disclosing the documents or classes of documents;
(d)other relevant considerations.

225Consequences of nondisclosure

(1)If a party does not disclose a document under this part, the party—
(a)must not tender the document, or adduce evidence of its contents, at the trial without the court’s leave; and
(b)is liable to contempt for not disclosing the document; and
(c)may be ordered to pay the costs or a part of the costs of the proceeding.
(2)If a document is not disclosed to a party under this part, the party may apply on notice to the court for—
(a)an order staying or dismissing all or part of the proceeding; or
(b)a judgment or other order against the party required to disclose the document; or
(c)an order that the document be disclosed in the way and within the time stated in the order.
(3)The court may, in an order under subrule (2)(c), specify consequences for failing to comply with the order.

226Certificate by solicitor

(1)The solicitor having conduct of a proceeding for a party must give to the court at the trial, a certificate addressed to the court and signed by the solicitor—
(a)stating the duty of disclosure has been explained fully to the party; and
(b)if the party is a corporation—identifying the individual to whom the duty was explained.
(2)The certificate must be prepared and signed at or immediately before the trial.

227Production of documents at trial

(1)Documents disclosed under this division must be produced at the trial if—
(a)notice to produce them has been given with reasonable particularity; and
(b)their production is asked for at the trial.
(2)A document disclosed under this division that is tendered at the trial is admissible in evidence against the disclosing party as relevant and as being what it purports to be.

Division 2 Interrogatories

228Entitlement to deliver interrogatories

A party may deliver an interrogatory only under this part.

229Delivery of interrogatories

(1)With the court’s leave, a person may, at any time, deliver interrogatories—
(a)to a party to a proceeding, including a third party under chapter 6, part 6; or
(b)to help decide whether a person is an appropriate party to the proceeding or would be an appropriate party to a proposed proceeding—to a person who is not a party.
(2)The number of interrogatories may be more than 30 only if the court directs a greater number may be delivered.
(3)For this rule, each distinct question is 1 interrogatory.

230Granting of leave to deliver interrogatories

(1)Subject to an order of the court, the court may give leave to deliver interrogatories—
(a)on application without notice to another person; and
(b)only if the court is satisfied there is not likely to be available to the applicant at the trial another reasonably simple and inexpensive way of proving the matter sought to be elicited by interrogatory.
(2)The application must be accompanied by a draft of the interrogatories intended to be delivered, unless the court otherwise directs.
(3)However, a Magistrates Court may not give leave for this division unless the amount sued for is more than $7,500.

231Answering interrogatories

(1)Subject to this part, a person to whom interrogatories are delivered is required to answer them.
(2)The person must answer the interrogatories—
(a)within the time ordered by the court; and
(b)by delivering to the interrogating party a statement in answer to the interrogatories and an affidavit verifying the statement.
(3)If a party—
(a)claims relief against 2 or more other parties; and
(b)delivers interrogatories to 1 or more of them;

the statement and affidavit must also be delivered to each party who has filed a notice of intention to defend.

232Statement in answer to interrogatories

(1)A statement in answer to interrogatories must comply with this rule, unless the court otherwise orders.
(2)The statement must specifically—
(a)answer the substance of each interrogatory; or
(b)object to answering each interrogatory.
(3)An answer must be given directly and without evasion or resort to technicality.
(4)An objection must—
(a)specify the grounds of the objection; and
(b)briefly state the facts on which the objection is made.
(5)This rule does not apply to an interrogatory to which an order under rule 234(a) applies.
(6)However, if rule 234(b) applies to an interrogatory, the statement must deal with the interrogatory to the extent the person is required to answer it.

233Grounds for objection to answering interrogatories

(1)The following are the only grounds on which a person may object to answering an interrogatory—
(a)the interrogatory does not relate to a matter in question, or likely to be in question, between the person and the interrogating party;
(b)the interrogatory is not reasonably necessary to enable the court to decide the matters in question between the parties;
(c)there is likely to be available to the interrogating party at the trial another reasonably simple and inexpensive way of proving the matter sought to be elicited by interrogatory;
(d)the interrogatory is vexatious or oppressive;
(e)privilege.
(2)The court may—
(a)require the grounds of objection specified in a statement in answer to interrogatories to be specified in more detail; and
(b)decide the objection.
(3)If the court decides the objection is sufficient, the interrogatory is not required to be answered.

234Unnecessary interrogatories

The court may, on application—
(a)order that a person is not required to answer an interrogatory; or
(b)by order, limit the extent to which the person is required to answer an interrogatory.

235Identity of individual by whom verifying affidavit to be made

(1)An affidavit verifying the statement of a person in answer to interrogatories must be made by—
(a)the person; or
(b)if the person is a person under a legal incapacity—the person’s litigation guardian; or
(c)if the person is a corporation or organisation—
(i)a member or officer of the corporation or organisation; or
(ii)another individual involved in the management of its affairs; or
(d)if the person is a body of persons lawfully suing or being sued in the name of the body or the name of an officer of the body or another person—a member or officer of the body; or
(e)if the person is a State or the Commonwealth or an officer of a State or the Commonwealth suing or being sued in an official capacity—an officer of the State or the Commonwealth.
(2)If subrule (1)(c), (d) or (e) applies—
(a)the court may, in relation to all or any of the interrogatories—
(i)specify, by name or otherwise, the individual to make the affidavit; or
(ii)specify, by description or otherwise, the individuals from whom the interrogating party may choose the individual to make the affidavit; and
(b)the affidavit must be made in relation to the interrogatories, or the relevant interrogatories, by the individual specified or the individual chosen by the interrogating party.

236Failure to answer interrogatory

(1)This rule applies if a person does not give an answer, or gives an insufficient answer, to an interrogatory.
(2)The court may—
(a)order an answer or further answer be given under rule 231; or
(b)order the person to attend to be orally examined; or
(c)if the person is not qualified to make the affidavit verifying the statement in answer to the interrogatories—order a qualified individual to attend to be orally examined.
(3)This rule does not limit the powers of the court under rule 237.

237Failure to comply with court order

(1)If a person does not comply with an order under rule 236(2)(a), the interrogating party or another party may apply on notice to the court for—
(a)an order that all or part of the proceedings be stayed or dismissed; or
(b)a judgment or other order against the person; or
(c)an order requiring the relevant statement in answer to interrogatories or the affidavit verifying the statement to be filed or served within a stated time.
(2)The court may make an order under subrule (1), or another order, specifying consequences for failing to comply with the order, the court considers appropriate.
(3)This rule does not limit the powers of the court to punish for contempt of court.

r 237 amd 2000 SL No. 127 s 26

238Tendering answers

(1)A party may tender as evidence—
(a)an answer of another party to an interrogatory without tendering other answers; or
(b)part of an answer of another party to an interrogatory without tendering all of the answer.
(2)If all or part of an answer to an interrogatory is tendered as evidence, the court may consider all of the answers and reject the tender unless another answer or part of an answer is also tendered.
(3)However, the court may reject the tender under subrule (2) only if the court considers the other answer or part of an answer is so connected with the answer tendered that the answer should not be used without the other answer or part.

Division 3 General

239Public interest considerations

This part does not affect a rule of law authorising or requiring the withholding of a matter on the ground its disclosure would be injurious to the public interest.

240Service on solicitors of disclosure orders

(1)If an order relating to interrogatories or the delivery, production or inspection of documents is served on the solicitor for the party against whom the order is made, the service is sufficient for making an application for contempt of court for disobedience to the order.
(2)If—
(a)an application of a kind mentioned in subrule (1) is made; and
(b)the order to which the application relates was served in the way mentioned in the subrule;

the party against whom the order is made may show, in answer to the application, the party has no notice or knowledge of the order.

(3)A solicitor is liable to a proceeding for contempt of court if—
(a)an order relating to interrogatories or the delivery, production or inspection of documents is served on the solicitor for the party against whom the order is made; and
(b)the solicitor fails, without reasonable excuse, to give notice of the order to the party.

241Costs

If, in any case, the cost of complying with this part would be oppressive to a party, the court may order another party to pay or contribute to the cost of compliance or provide security for the cost.

Part 3 Non-party disclosure

pt hdg (prev pt 2 hdg) renum 2018 SL No. 127 s 54

242Notice requiring non-party disclosure

(1)A party (the applicant) to a proceeding may by notice of non-party disclosure require a person who is not party to the proceeding (the respondent) to produce to the applicant, within 14 days after service of the notice on the respondent, a document—
(a)directly relevant to an allegation in issue in the proceeding; and
(b)in the possession or under the control of the respondent; and
(c)that is a document the respondent could be required to produce at the trial of the matter.
(2)The applicant may not require production of a document if there is available to the applicant another reasonably simple and inexpensive way of proving the matter sought to be proved by the document.
(3)The respondent must comply with the notice but not before the end of 7 days after service of the notice on the respondent.
(4)Disclosure under this part is not an ongoing duty.

r 242 amd 2018 SL No. 127 s 53

243Form and service of notice

(1)A notice of non-party disclosure must—
(a)be issued in the same way as a claim; and
(b)state the allegation in issue in the proceeding about which the document sought is directly relevant; and
(c)include a certificate signed by the applicant’s solicitor, or if the applicant acts personally, by the applicant, stating that there is not available to the applicant another reasonably simple and inexpensive way of proving the matter sought to be proved by the document; and
(d)be in the approved form; and
(e)be served in the same way as a claim and within 3 months after its issue.
(2)However, the applicant may serve the respondent only after the applicant has served all other persons who are required to be served under rule 244.

r 243 amd 2018 SL No. 127 s 53

244Others affected by notice

(1)The applicant must, within 3 months after the issue of a notice of non-party disclosure, serve a copy of the notice on—
(a)a person, other than a party, about whom information is sought by the notice; and
(b)if the applicant knows the respondent does not own a document required to be produced—the owner of the document.
(2)Subrule (1) does not apply if the applicant’s solicitor—
(a)believes, on reasonable grounds, that a person who would otherwise be required to be served under subrule (1) is likely to fabricate evidence or perpetrate fraud if the person becomes aware of the notice; and
(b)has completed a certificate in the approved form stating that the solicitor has that belief and that the interests of justice are likely to be jeopardised if the person were served with the notice.
(3)A certificate by the applicant’s solicitor under subrule (2) must be tendered to the court after the close of the applicant’s case.
(4)Further, subrule (1)(b) does not apply if, after reasonable inquiries, the applicant can not identify the owner of the document.
(5)The applicant must write the name and address of anyone who must be served under this rule on the notice and on all copies of the notice.

245Objection to disclosure

(1)The respondent, or a person who has been served with a notice of non-party disclosure under rule 244, may object to the production of some or all of the documents mentioned in the notice within 7 days after its service or, with the court’s leave, a later time.
(2)Also, another person who would be affected by the notice and who has not been served may object to the production of some or all of the documents mentioned in the notice at any time with the court’s leave.
(3)The objection must—
(a)be written; and
(b)be served on the applicant; and
(c)if the person objecting (the objector) is not the respondent—be served on the respondent; and
(d)clearly state the reasons for the objection.
(4)The reasons may include, but are not limited to, the following—
(a)if the objector is the respondent—the expense and inconvenience likely to be incurred by the respondent in complying with the notice;
(b)the lack of relevance to the proceeding of the documents mentioned in the notice;
(c)the lack of particularity with which the documents are described;
(d)a claim of privilege;
(e)the confidential nature of the documents or their contents;
(f)the effect disclosure would have on any person;
(g)if the objector was not served with the notice—the fact that the objector should have been served.

246Objection stays notice

Service of an objection under rule 245 operates as a stay of a notice of non-party disclosure.

247Court’s decision about objection

(1)Within 7 days after service of an objection under rule 245, the applicant may apply to the court for a decision about the objection.
(2)The court may make any order it considers appropriate including, but not limited to an order—
(a)lifting the stay; or
(b)varying the notice of non-party disclosure; or
(c)setting aside the notice.
(3)Unless the court otherwise orders, each party to an application to decide an objection must bear the party’s own costs of the application.
(4)The court may make an order for subrule (3) if, having regard to the following, the court considers that the circumstances justify it—
(a)the merit of the objector’s objections;
(b)the public interest in the efficient and informed conduct of litigation;
(c)the public interest in not discouraging objections in good faith by those not a party to the litigation.

248Production and copying of documents

(1)Unless the operation of a notice of non-party disclosure is stayed, and subject to any order under rule 247(2), the respondent must produce the document specified in the notice for inspection by the applicant at the place of business of the respondent, or the respondent’s solicitor, within ordinary business hours or at another place or time agreed by the applicant and respondent.
(2)If the respondent does not comply with subrule (1), the applicant may apply to the court who may order compliance and make another order the court considers appropriate.
(3)The applicant may copy a document produced under this part.

249Costs of production

(1)Subject to rule 247(3), the applicant must pay the respondent’s reasonable costs and expenses of producing a document.
(2)Within 1 month after producing a document, the respondent must give to the applicant written notice of the respondent’s reasonable costs and expenses of producing it.
(3)Unless the court otherwise orders, the applicant may apply to the registrar within 1 month after receiving written notice under subrule (2) for assessment of the costs and expenses.

r 249 amd 2007 SL No. 315 s 4; 2012 SL No. 150 s 14

Chapter 8 Preservation of rights and property

Part 1 Inspection, detention and preservation of property

250Inspection, detention, custody and preservation of property

(1)The court may make an order for the inspection, detention, custody or preservation of property if—
(a)the property is the subject of a proceeding or is property about which a question may arise in a proceeding; or
(b)inspection of the property is necessary for deciding an issue in a proceeding.

Note—

Under the Acts Interpretation Act 1954, schedule 1

property means any legal or equitable estate or interest (whether present or future, vested or contingent, or tangible or intangible) in real or personal property of any description (including money), and includes things in action.

(2)Subrule (1) applies whether or not the property is in the possession, custody or power of a party.
(3)The order may authorise a person to do any of the following—
(a)enter a place or do another thing to obtain access to the property;
(b)take samples of the property;
(c)make observations and take photographs of the property;
(d)conduct an experiment on or with the property;
(e)observe a process;
(f)observe or read images or information contained in the property including, for example, by playing or screening a tape, film or disk;
(g)photograph or otherwise copy the property or information contained in the property.
(4)In the order, the court may impose the conditions it considers appropriate, including, for example, a condition about—
(a)payment of the costs of a person who is not a party and who must comply with the order; or
(b)giving security for the costs of a person or party who must comply with the order.
(5)The court may set aside or vary the order.

r 250 amd 2009 SL No. 162 s 2 sch; 2014 SL No. 320 s 5

251Perishable property

(1)The court may order the sale or other disposal of all or part of perishable property the subject of a proceeding.
(2)The order may include conditions about the proceeds of the sale or disposal.
(3)In this rule—
perishable property means property, other than land, that is perishable or likely to deteriorate or decrease in value.

252Order affecting non-party

The court may make an order under rule 250 or 251 binding on, or otherwise affecting, someone who is not a party to the proceeding.

253Service of application

(1)The applicant for an order for the inspection, detention, custody or preservation of property must make all reasonable inquiries to find out who has, or claims to have, an interest in the property.
(2)Unless the court otherwise orders, an order may not be made under rule 250 or 251 unless each person who has an interest in the property is served with the application and all supporting affidavits.

254Order before proceeding starts

(1)In urgent circumstances, the court may, before a proceeding starts, make an order under rule 250 or 251 as if the proceeding had started.
(2)The order may include conditions about starting the proceeding.

255Jurisdiction of court not affected

This part does not affect the jurisdiction of the court to make orders for the inspection, detention, custody or preservation of property that is exercisable apart from these rules.

r 255 amd 2012 SL No. 150 s 15

Part 2 Injunctions and similar orders

Division 1 Preliminary

div hdg ins 2007 SL No. 96 s 6

255ADefinition for pt 2

In this part—
part 2 order means an injunction or order of the type mentioned in rule 260A or 261A.

r 255A ins 2007 SL No. 96 s 6

256Application of pt 2

This part does not apply to a Magistrates Court.

257Relationship with other law

This part is not intended to impede the development of the law relating to injunctions and similar orders including orders of the type mentioned in rules 260A and 261A.

r 257 amd 2007 SL No. 96 s 7

258Procedure

(1)An application for a part 2 order should comply with chapter 2, part 4 unless this part otherwise provides.
(2)Subrule (1) applies irrespective of whether the application is made—
(a)before a proceeding starts; or
(b)in a pending proceeding.

r 258 amd 2007 SL No. 96 s 8

259Part 2 order without notice

(1)An application for a part 2 order should be served, but if the court is satisfied there is adequate reason for doing so, the court may grant the order without notice to the other party.
(2)Without limiting the discretion of the court in the exercise of its equitable jurisdiction, on an application for a part 2 order, the court may, with or without conditions—
(a)grant the order for a limited period specified in the order; or
(b)grant the order until the trial of the proceeding; or
(c)grant an order for a limited time restraining a person from leaving Australia; or
(d)make another order.

Example of an injunction under subrule (2)(c)—

This injunction may be used if the departure of the person would render a proceeding useless, for example, because the person’s departure would make it impossible to have an enforcement hearing in relation to a judgment against the person and so ascertain the location of the person’s assets. Conditions imposed may, for example, relate to payment of moneys, or surrendering a passport, to the registry.

Division 2 Freezing orders

div hdg ins 2007 SL No. 96 s 9

260Definitions for div 2

In this division—
ancillary order has the meaning given by rule 260B.
another court means a court outside Australia or a court in Australia other than the court.
applicant means a person who applies for a freezing order or an ancillary order.
freezing order has the meaning given by rule 260A.
judgment includes an order.
respondent means a person against whom a freezing order or an ancillary order is sought or made.

r 260 sub 2007 SL No. 96 s 9

260AFreezing order

(1)The court may make an order (a freezing order) for the purpose of preventing the frustration or inhibition of the court’s process by seeking to meet a danger that a judgment or prospective judgment of the court will be wholly or partly unsatisfied.
(2)A freezing order may be an order restraining a respondent from removing any assets located in or outside Australia or from disposing of, dealing with, or diminishing the value of, those assets.

r 260A ins 2007 SL No. 96 s 9

260BAncillary order

(1)The court may make any order (an ancillary order) ancillary to a freezing order or prospective freezing order it considers appropriate.
(2)Without limiting subrule (1), an ancillary order may be made for either or both of the following purposes—
(a)obtaining information about assets relevant to the freezing order or prospective freezing order;
(b)deciding whether the freezing order should be made.

r 260B ins 2007 SL No. 96 s 9

260CRespondent need not be party to proceeding

A freezing order or an ancillary order may be granted whether or not the respondent is a party to an existing proceeding.

r 260C ins 2007 SL No. 96 s 9

260DOrder against judgment debtor or prospective judgment debtor or third party

(1)This rule applies if judgment has been given in favour of an applicant by the court or another court and there is sufficient prospect that the judgment of the other court will be registered in or enforced by the court.
(2)This rule also applies if an applicant has a good arguable case on an accrued or prospective cause of action that is justiciable in—
(a)the court; or
(b)another court and—
(i)there is a sufficient prospect that the other court will give judgment in favour of the applicant; and
(ii)there is a sufficient prospect that the judgment of the other court will be registered in or enforced by the court.
(3)The court may make a freezing order or an ancillary order or both against a judgment debtor or prospective judgment debtor if the court is satisfied, having regard to all the circumstances, that there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because—
(a)the judgment debtor, prospective judgment debtor or another person might abscond; or
(b)the assets of the judgment debtor, prospective judgment debtor or another person might be—
(i)removed from Australia or from a place inside or outside Australia; or
(ii)disposed of, dealt with or diminished in value.
(4)The court may make a freezing order or an ancillary order or both against a person other than a judgment debtor or prospective judgment debtor (a third party) if the court is satisfied, having regard to all the circumstances, that—
(a)there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because—
(i)the third party holds or is using, or has exercised or is exercising, a power of disposition over assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor; or
(ii)the third party is in possession of, or in a position of control or influence concerning, assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor; or
(b)a process in the court is or may ultimately be available to the applicant as a result of a judgment or prospective judgment, under which process the third party may be obliged to disgorge assets or contribute toward satisfying the judgment or prospective judgment.
(5)This rule does not affect the power of the court to make a freezing order or ancillary order if the court considers it is in the interests of justice to do so.

r 260D ins 2007 SL No. 96 s 9

260EJurisdiction

This division does not diminish the inherent, implied or statutory jurisdiction of the court to make a freezing order or ancillary order.

r 260E ins 2007 SL No. 96 s 9

260FService outside Australia of application for freezing order or ancillary order

An application for a freezing order or an ancillary order may be served on a person outside Australia without the court’s leave if any of the assets to which the order relates are within the jurisdiction of the court.

r 260F ins 2007 SL No. 96 s 9

260GCosts

(1)The court may make any order as to costs it considers appropriate in relation to an order made under this division.
(2)Without limiting subrule (1), an order as to costs includes an order as to the costs of any person affected by a freezing order or ancillary order.

r 260G ins 2007 SL No. 96 s 9

Division 3 Search orders

div hdg ins 2007 SL No. 96 s 9

261Definitions for div 3

In this division—
applicant means a person who applies for a search order.
described includes described generally whether by reference to a class or otherwise.
premises includes a vehicle or vessel of any kind.
respondent means a person against whom a search order is sought or made.
search order has the meaning given by rule 261A.

r 261 sub 2007 SL No. 96 s 9

261ASearch order

The court may make an order (a search order), in any proceeding or in anticipation of any proceeding in the court, for the purpose of securing or preserving evidence and requiring a respondent to permit persons to enter premises for the purpose of securing the preservation of evidence which is, or may be, relevant to an issue in the proceeding or anticipated proceeding.

r 261A ins 2007 SL No. 96 s 9

261BRequirements for grant of search order

The court may make a search order if the court is satisfied that—
(a)the applicant has a strong prima facie case on an accrued cause of action; and
(b)the potential or actual loss or damage to the applicant will be serious if the search order is not made; and
(c)there is sufficient evidence in relation to a respondent that—
(i)the respondent possesses important evidentiary material; and
(ii)there is a real possibility that the respondent might destroy the material or cause it to be unavailable for use in evidence in a proceeding or anticipated proceeding before the court.

r 261B ins 2007 SL No. 96 s 9

261CJurisdiction

This division does not diminish the inherent, implied or statutory jurisdiction of the court to make a search order.

r 261C ins 2007 SL No. 96 s 9

261DTerms of search order

(1)A search order may direct each person who is named or described in the order—
(a)to permit, or arrange to permit, the other persons named or described in the order—
(i)to enter premises specified in the order; and
(ii)to take any steps that are in accordance with the terms of the order; and
(b)to provide, or arrange to provide, the other persons named or described in the order with any information, thing or service described in the order; and
(c)to allow the other persons named or described in the order to take and retain in their custody any thing described in the order; and
(d)not to disclose any information about the order, for up to 3 days after the date on which the order was served, except for the purposes of obtaining legal advice or legal representation; and
(e)to do or refrain from doing any act as the court considers appropriate.
(2)Without limiting subrule (1)(a)(ii), the steps that may be taken in relation to a thing specified in a search order include—
(a)searching for, inspecting or removing the thing; and
(b)making or obtaining a record of the thing or any information it may contain.
(3)A search order may contain any other provisions the court considers appropriate.
(4)In this rule—
record includes a copy, photograph, film or sample.

r 261D ins 2007 SL No. 96 s 9

261EIndependent solicitors

(1)If the court makes a search order, the court must appoint 1 or more solicitors, each of whom is independent of the applicant’s solicitors (the independent solicitors), to supervise the enforcement of the order, and to do the other things in relation to the order the court considers appropriate.
(2)The court may appoint an independent solicitor to supervise enforcement of the order at any 1 or more premises, and a different independent solicitor or solicitors to supervise enforcement of the order at other premises, with each independent solicitor having power to do the other things in relation to the order the court considers appropriate.

r 261E ins 2007 SL No. 96 s 9

261FCosts

(1)The court may make any order as to costs it considers appropriate in relation to an order made under this division.
(2)Without limiting subrule (1), an order as to costs includes an order as to the costs of any person affected by a search order.

r 261F ins 2007 SL No. 96 s 9

Division 4 Miscellaneous

div hdg ins 2007 SL No. 96 s 9

262Part 2 order without trial

(1)A plaintiff claiming relief by way of a part 2 order, with or without a declaration or other relief, may apply to the court for a judgment.
(2)The plaintiff may make the application at any time after—
(a)the plaintiff is served with a notice of intention to defend; or
(b)the end of the time set by rule 137 for filing a notice of intention to defend.
(3)On the hearing of an application under subrule (1) the court may do one or more of the following—
(a)give judgment in relation to the part 2 order and declaration and, if other relief is claimed, give the directions it considers appropriate about how to dispose of the rest of the proceeding;
(b)grant a part 2 order until the trial or hearing or until a stated day;
(c)order the parties to file and serve pleadings;
(d)direct a trial of the proceeding.

263Expedited trial

On an application for a part 2 order, the court may order an expedited trial under rule 468.

264Damages and undertaking as to damages

(1)Unless there is a good reason, the court must not grant a part 2 order until the trial or hearing or until a stated day without the usual undertaking as to damages having been given.
(2)The usual undertaking as to damages for a part 2 order applies during an extension of the period of the order.
(3)If the usual undertaking as to damages is contravened, the person in whose favour the undertaking is given may apply to the court for an order conditional on the assessment of damages.

Note—

See rule 507 (Conditional order).
(4)If the court finds damages are sustained because of a part 2 order, the court may assess damages or give the directions it considers necessary for the assessment of damages.
(5)In this rule or an order—
usual undertaking as to damages, for a part 2 order, means an undertaking to pay to a person (whether or not a party to the proceeding) who is affected by the order an amount the court decides should be paid for damages the person may sustain because of the order.

r 264 amd 2009 SL No. 162 s 2 sch

265Other undertakings and security to perform undertaking

(1)The court may require an undertaking from a person approved by the court other than the applicant.
(2)The court may require a person who gives an undertaking as to damages under rule 264 to make a payment into court or to give other security, including to the satisfaction of the registrar, for the performance of the undertaking.
(3)In deciding whether to make a requirement under this rule, the court may consider the matters it could consider in deciding whether to order security for costs and whether it is otherwise reasonable in all the circumstances of the matter to impose the requirement.

Part 3 Receivers

Division 1 Application

266Application of pt 3

This part does not apply to—
(a)Magistrates Courts; or
(b)situations controlled or regulated by the Corporations Act.

r 266 amd 2004 SL No. 115 s 6

Division 2 Receivership generally

267Consent to act as receiver

(1)A person must not be appointed as a receiver unless the person’s written consent to act as receiver is filed in the court.
(2)The court may set aside the appointment of a receiver at any time for an appropriate reason and make the orders it considers appropriate about the receivership and the receiver’s remuneration.

268Security

(1)Unless the court otherwise orders, the appointment of a receiver by the court does not start until the receiver files security acceptable to the court for the performance of the receiver’s duties.
(2)The court may vary or vacate an order for a security filed under subrule (1) at any time.

269Remuneration

(1)A receiver is allowed the remuneration, if any, the court sets.
(2)The court may order that the receiver be remunerated under a scale the court specifies in the order.

270Accounts

(1)Unless the court otherwise orders, a receiver must submit accounts under this rule.
(2)A receiver must submit accounts to the parties and at the intervals or on the dates the court directs.
(3)A party to whom a receiver is required to submit accounts may, on giving reasonable written notice to the receiver, inspect, either personally or by an agent, the documents and things on which the accounts are based.
(4)A party who objects to the accounts may serve written notice on the receiver—
(a)specifying the items to which objection is taken; and
(b)requiring the receiver to file the receiver’s accounts with the court within a stated period of not less than 14 days after the notice is served.
(5)The party must file a copy of the notice served with the court.
(6)The court may examine the items to which objection is taken.
(7)The court must by order declare the result of an examination under subrule (6) and may make an order for the costs and expenses of a party or the receiver.

271Default

(1)If a receiver contravenes rule 270, the court may—
(a)set aside the receiver’s appointment; or
(b)appoint another receiver; or
(c)order the receiver to pay the costs of an application under this rule; or
(d)deprive the receiver of remuneration and order the repayment of remuneration already paid to the receiver; or
(e)if the receiver did not pay money into court as required by the court—charge the receiver with interest at the rate currently payable on order debts in the court for a period the court considers appropriate.
(2)This rule does not limit the powers of the court about the enforcement of orders or the power of the court to punish for contempt.
(3)In this rule—
order debt see rule 793.

272Powers

(1)The court may appoint a receiver and manager on conditions specified in the order.
(2)The court may authorise a receiver to do (either in the receiver’s name or in the name of a party and either generally or in a particular case) anything the party might do if without legal incapacity.
(3)The court may, on application by an interested person, give the directions it considers appropriate.
(4)Subrule (2) has effect even if the relevant party is under a legal incapacity.
(5)Subrule (2) does not limit the power of the court apart from this subrule.

273Death of receiver

If a receiver dies, the court may, but only on the application of a party, make orders for—
(a)the filing and passing of accounts by the deceased receiver’s representative; and
(b)the payment into court of an amount shown to be owing.

Division 3 Enforcement of judgment by appointment of receiver

274Enforcement of judgment

The court may appoint a receiver to receive an amount payable under a judgment or other order if it is impracticable to enforce payment in another way.

Note—

See chapter 19 (Enforcement of money orders), part 10 (Enforcement warrants for appointment of a receiver).

r 274 amd 2009 SL No. 162 s 2 sch

Part 4 Sales by court order

275Definition for pt 4

In this part—
land includes an interest in land.

276Application of pt 4

This part applies only for a proceeding in the Supreme Court or the District Court.

277Order for sale

In a proceeding relating to land, the court may, if it is necessary or expedient, order the land be sold before the proceeding is decided.

278Conduct of sale

(1)The court may appoint a party or another person to have the conduct of the sale if the court—
(a)makes an order for sale under rule 277; or
(b)by a judgment, orders the sale of land or personal property.
(2)The court may direct a party to join in the sale or transfer or in another matter relating to the sale.
(3)The court may permit the party or person having the conduct of the sale to sell the land in a way the party or person considers appropriate or give directions about conducting the sale.
(4)Directions given under subrule (3) may include the following—
(a)specifying the type of sale, whether by contract conditional on approval of the court, private treaty, tender or otherwise;
(b)setting a minimum or reserve price;
(c)requiring payment of the purchase price into court or to a trustee or other person;
(d)settling the particulars and conditions of sale;
(e)obtaining evidence of value;
(f)specifying the remuneration to be allowed to an auctioneer, estate agent or another person.

r 278 amd 2012 SL No. 60 s 9

279Certificate of result of sale

(1)If the court directs, or if the court has directed the payment of the purchase money into court, the result of a sale by order of the court must be certified—
(a)for a public auction—by the auctioneer who conducted the sale; or
(b)otherwise—by the party or person who conducted the sale or by the solicitor who acted for the party.
(2)Within 7 days after the day of settlement of the sale, the person required to give the certificate under subrule (1) must file the certificate in the court.

Chapter 9 Ending proceedings early

Part 1 Default

Division 1 Default by plaintiff or applicant

280Default by plaintiff or applicant

(1)If—
(a)the plaintiff or applicant is required to take a step required by these rules or comply with an order of the court within a stated time; and
(b)the plaintiff or applicant does not do what is required within the time stated for doing the act;

a defendant or respondent in the proceeding may apply to the court for an order dismissing the proceeding for want of prosecution.

(2)The court may dismiss the proceeding or make another order it considers appropriate.
(3)An order dismissing the proceeding for want of prosecution may be set aside only on appeal or if the parties agree to it being set aside.
(4)Despite subrule (3), the court may vary or set aside an order dismissing the proceeding for want of prosecution made in the absence of the plaintiff or applicant, on terms the court considers appropriate, and without the need for an appeal.

Division 2 Proceedings started by claim

281Application of div 2

(1)This division applies if a defendant in a proceeding started by claim has not filed a notice of intention to defend and the time allowed under rule 137 to file the notice has ended.
(2)This division also applies if a defendant in a proceeding started by claim files a conditional notice of intention to defend that becomes an unconditional notice of intention to defend and the defendant does not file a defence within the time required under rule 144(6).

r 281 sub 2000 SL No. 127 s 27

amd 2006 SL No. 194 s 4; 2012 SL No. 150 s 16

282Service must be proved

A plaintiff must prove service of a claim on a defendant in default before judgment may be given under this division against the defendant.

283Judgment by default—debt or liquidated demand

(1)This rule applies if the plaintiff’s claim against the defendant in default is for a debt or liquidated demand, with or without interest.
(2)The plaintiff may file a request for judgment for an amount not more than the amount claimed, together with—
(a)if interest is claimed—interest calculated, to the date of judgment, at the rate specified in the claim or in a practice direction for the Civil Proceedings Act 2011, section 58; and
(b)the following costs—
(i)costs for issuing the claim;
(ii)costs for obtaining judgment;
(iii)any other fees and payments, to the extent they have been reasonably incurred and paid.
(3)If the plaintiff files a request for judgment under subrule (2), the court, as constituted by a registrar, may give judgment.
(4)For this rule, a debt or liquidated demand includes interest if the rate of interest is—
(a)limited to the rate specified in, and calculated in accordance with, an agreement; or
(b)not higher than the rate specified in a practice direction for the Civil Proceedings Act 2011, section 58.
(5)Subrules (6) to (8) apply if interest is claimed under the Civil Proceedings Act 2011, section 58.
(6)If the plaintiff elects to abandon the claim for the interest, the claim is taken to be a claim for the debt or liquidated demand without interest.
(7)If the plaintiff elects to accept interest at a rate not higher than that specified in a practice direction for any period mentioned in the direction, the registrar may award interest under the direction, whether or not the defendant has paid the debt or liquidated demand after the proceeding is started.
(8)If the plaintiff seeks to recover a higher rate of interest than that specified in a practice direction for any period mentioned in the direction, the court may—
(a)decide the interest, if any, that is recoverable; and
(b)direct that judgment be given for the interest, whether or not the defendant has paid the debt or liquidated demand after the proceeding is started; and
(c)direct that judgment be given against the defendant under this rule.
(9)If the period for which interest is to be awarded is not specified in the statement of claim, interest is recoverable only from the date of the issue of the claim.
(10)If the court as constituted by a registrar is considering whether to give judgment, the registrar is not required to consider the merits of the plaintiff’s claim against the defendant.

Note—

Under rule 982, the matter could be referred to a judge or magistrate for disposal, or for consideration and referral back, if the circumstances set out in that rule apply.

r 283 amd 2005 SL No. 64 s 3; 2010 Act No. 26 s 139; 2012 SL No. 150 s 17

284Judgment by default—unliquidated damages

(1)This rule applies if the plaintiff’s claim against the defendant in default is for unliquidated damages, with or without another claim.
(2)The plaintiff may file a request for a judgment conditional on the assessment of damages by the court under chapter 13, part 8, and for costs.
(3)If the plaintiff files a request for judgment under subrule (2), the court, as constituted by a registrar, may give judgment.
(4)The court, as constituted by a registrar, must nominate under rule 507 the court that is to do the assessment.

r 284 amd 2000 SL No. 127 s 28

285Judgment by default—detention of goods

(1)This rule applies if the plaintiff’s claim for relief against a defendant in default is for the detention of goods only.
(2)The plaintiff may file a request for judgment against the defendant, within the limits of the plaintiff’s claim for relief, either—
(a)for the return of the goods or the value of the goods conditional on assessment under chapter 13, part 8 and for costs; or
(b)for the value of the goods conditional on assessment under chapter 13, part 8 and for costs.
(3)If the plaintiff files a request for judgment under subrule (2), the court, as constituted by a registrar, may give judgment in accordance with the request.
(4)The court, as constituted by a registrar, must nominate under rule 507 the court that is to do the assessment.
(5)If the plaintiff seeks an order for the return of specified goods, the plaintiff must apply to the court for the order.

r 285 amd 2000 SL No. 127 s 29

286Judgment by default—recovery of possession of land

(1)This rule applies if the plaintiff’s claim for relief against a defendant in default is for the recovery of possession of land only.
(2)The plaintiff may file a request for a judgment for—
(a)recovery of possession of the land as against the defendant; and
(b)the following costs—
(i)costs for issuing the claim;
(ii)costs for obtaining judgment;
(iii)any other fees and payments, to the extent they have been reasonably incurred and paid.
(3)If the plaintiff files a request for judgment under subrule (2), the court, as constituted by a registrar, may give judgment.
(4)However, the plaintiff is not entitled to the judgment if the plaintiff’s claim is for delivery of possession under a mortgage.
(5)If the court as constituted by a registrar is considering whether to give judgment, the registrar is not required to consider the merits of the plaintiff’s claim against the defendant.

Note—

Under rule 982, the matter could be referred to a judge or magistrate for disposal, or for consideration and referral back, if the circumstances set out in that rule apply.

r 286 amd 2005 SL No. 64 s 4; 2010 Act No. 26 s 140

287Judgment by default—mixed claims

(1)This rule applies if the plaintiff’s claims for relief against a defendant in default include 2 or more of the claims for relief mentioned in rules 283 to 286, and no other claim.
(2)The plaintiff is entitled to a judgment against the defendant on all or any of the claims for relief the plaintiff could request under those rules if that were the plaintiff’s only claim for relief against the defendant.

288Judgment by default—other claims

(1)This rule applies if a defendant is in default and the plaintiff is not entitled to apply for judgment under rule 283, 284, 285 or 286.
(2)The plaintiff may apply to the court for a judgment.
(3)On the application, the court may give the judgment it considers is justified on the pleadings even if the judgment was not claimed.

r 288 amd 2000 SL No. 127 s 30

289Judgment by default—costs only

(1)This rule applies if, under this division, the plaintiff is entitled to judgment against a defendant in default and the defendant satisfies the plaintiff’s claim for relief.
(2)The plaintiff may file a request for a judgment against the defendant for costs alone.
(3)If the plaintiff files a request for judgment under subrule (2), the court, as constituted by a registrar, may give judgment.

290Setting aside judgment by default and enforcement

The court may set aside or amend a judgment by default under this division, and any enforcement of it, on terms, including terms about costs and the giving of security, the court considers appropriate.

Part 2 Summary judgment

Division 1 Application

291Application of pt 2

This part applies to any proceeding.

Division 2 Applying for summary judgment

div hdg sub 2001 SL No. 107 s 9

292Summary judgment for plaintiff

(1)A plaintiff may, at any time after a defendant files a notice of intention to defend, apply to the court under this part for judgment against the defendant.
(2)If the court is satisfied that—
(a)the defendant has no real prospect of successfully defending all or a part of the plaintiff’s claim; and
(b)there is no need for a trial of the claim or the part of the claim;

the court may give judgment for the plaintiff against the defendant for all or the part of the plaintiff’s claim and may make any other order the court considers appropriate.

r 292 sub 2001 SL No. 107 s 9

293Summary judgment for defendant

(1)A defendant may, at any time after filing a notice of intention to defend, apply to the court under this part for judgment against a plaintiff.
(2)If the court is satisfied—
(a)the plaintiff has no real prospect of succeeding on all or a part of the plaintiff’s claim; and
(b)there is no need for a trial of the claim or the part of the claim;

the court may give judgment for the defendant against the plaintiff for all or the part of the plaintiff’s claim and may make any other order the court considers appropriate.

r 293 sub 2001 SL No. 107 s 9

294Claims not disposed of

(1)The making of orders under this part that does not dispose of all claims in issue in a proceeding does not prevent the continuation of any part of the proceeding not disposed of by the orders.
(2)A second or later application under this part may be made with the court’s leave.

r 294 sub 2001 SL No. 107 s 9

Division 3 Evidence

div hdg sub 2001 SL No. 107 s 9

295Evidence

(1)In a proceeding under this part, evidence must be given by affidavit unless the court gives leave.
(2)An affidavit may contain statements of information and belief if the person making the affidavit states the sources of the information and the reasons for the belief.
(3)A party to an application under this part who intends to rely on a document must—
(a)exhibit the document to an affidavit; or
(b)identify in an affidavit the provisions relied on to the extent the party is able to identify them.
(4)A person who makes an affidavit to be read in an application under this part may not be cross-examined without the leave of the court.

r 295 sub 2001 SL No. 107 s 9

296Service

(1)A party applying for judgment under this part must file and serve the respondent to the application with the following documents at least 8 business days before the date for hearing shown on the application—
(a)the application;
(b)a copy of each affidavit on which the applicant intends to rely.
(2)At least 4 business days before the date for hearing, the respondent must file and serve on the applicant a copy of any affidavit on which the respondent intends to rely.
(3)At least 2 business days before the date for hearing, the applicant must file and serve on the respondent a copy of any affidavit in reply to the respondent’s affidavit on which the applicant intends to rely.

r 296 sub 2001 SL No. 107 s 9

297[Repealed]

r 297 om 2001 SL No. 107 s 9

Division 4 Other procedural matters

298Directions

If—
(a)the court dismisses an application under this part for judgment; or
(b)a judgment under this part does not dispose of all claims in a proceeding;

the court may give directions or impose conditions about the future conduct of the proceeding.

299Costs

(1)If it appears to the court that a party who applied under this part for judgment was or ought reasonably to have been aware that an opposite party relied on a point that would entitle that party to have the application dismissed, the court may dismiss the application and order costs to be paid within a time specified by the court.
(2)Subrule (1) does not limit the court’s powers in relation to costs.

300Stay of enforcement

The court may order a stay of the enforcement of a judgment given under this part for the time and on the terms the court considers appropriate.

301Relief from forfeiture

A tenant has the same right to relief against forfeiture for nonpayment of rent after judgment for possession of land is given under this part as if the judgment had been given after a trial.

302Setting aside judgment

The court may set aside or vary a judgment given on an application under this part against a party who did not appear on the hearing of the application.

Part 3 Discontinuance and withdrawal

303Discontinuance by party representing another person

(1)A party who represents another person in a proceeding may discontinue or withdraw only with the court’s leave.
(2)A party who discontinues or withdraws, or the party’s solicitor, must certify in a notice of discontinuance or withdrawal that the party does not represent another person in the proceeding.

304Discontinuance by plaintiff or applicant

(1)A plaintiff or applicant may discontinue a proceeding or withdraw part of it before being served with—
(a)for a proceeding started by claim—the first defence of any defendant; or
(b)for a proceeding started by application—the first affidavit in reply from a respondent.
(2)However, after being served with the first defence or first affidavit in reply, a plaintiff or applicant may discontinue a proceeding or withdraw part of it only with the court’s leave or the consent of the other parties.
(3)Also, if there is more than 1 plaintiff or applicant, or a counterclaim against a plaintiff, a plaintiff or applicant may only discontinue with the court’s leave or the consent of the other parties.
(4)A plaintiff may discontinue against one or more defendants without discontinuing against other defendants.
(5)An applicant may discontinue against one or more respondents without discontinuing against other respondents.

305Discontinuance by defendant or respondent

A defendant may discontinue a counterclaim or withdraw part of it—
(a)before being served with the plaintiff’s answer to counterclaim; and
(b)only with the court’s leave or the consent of the other parties, after being served with the plaintiff’s answer to counterclaim.

306Withdrawal of notice of intention to defend

A party may withdraw the party’s notice of intention to defend at any time with the court’s leave or the consent of the other parties.

307Costs

(1)A party who discontinues or withdraws is liable to pay—
(a)the costs of the party to whom the discontinuance or withdrawal relates up to the discontinuance or withdrawal; and
(b)the costs of another party or parties caused by the discontinuance or withdrawal.
(2)If a party discontinues or withdraws with the court’s leave, the court may make the order for costs it considers appropriate.

308Withdrawal of defence or subsequent pleading

(1)A party may withdraw all or part of the answer to counterclaim.
(2)A defendant or respondent may withdraw all or part of the defence.
(3)A respondent may withdraw all or part of an affidavit.
(4)However, subrules (1), (2) and (3) do not enable a party to withdraw, without the other party’s consent or the court’s leave, an admission or another matter operating for the benefit of the other party.

308ADiscontinuance by parties when proceeding settled

(1)This rule applies if a proceeding is settled, whether or not a request for trial date has been filed.
(2)Each party must immediately give the registrar written notice that the proceeding has been settled.

r 308A ins 2010 SL No. 129 s 6

309Notice of discontinuance or withdrawal

(1)A discontinuance or withdrawal for which the court’s leave is not required may be effected by filing a notice in the approved form and serving it as soon as practicable on the other parties who have an address for service.
(2)A discontinuance or withdrawal for which the court’s leave is required is effected by the order giving leave and a notice of discontinuance or withdrawal is not required.

310Subsequent proceeding

(1)Subject to the conditions of a leave to discontinue or withdraw, a discontinuance or withdrawal under this part is not a defence to another proceeding on the same or substantially the same ground.
(2)A party who is served with another party’s notice of withdrawal may continue with the proceeding as if the other party’s notice of intention to defend had not been filed.

311Consolidated proceedings and counterclaims

The plaintiff’s discontinuance of a proceeding does not prejudice a proceeding consolidated with it or a counterclaim made by the defendant.

312Stay pending payment of costs

(1)This rule applies if, because of a discontinuance or withdrawal under this part, a party is liable to pay the costs of another party, and the party, before paying the costs, starts another proceeding on the same or substantially the same grounds.
(2)The court may order a stay of the subsequent proceeding until the costs are paid.

Part 4 Alternative dispute resolution processes

Division 1 Preliminary

313Definitions for pt 4

In this part—
ADR costs include—
(a)for a mediation—the extra cost mentioned in rule 328; and
(b)for a case appraisal—the extra cost mentioned in rule 337.
referred dispute means a dispute referred to a case appraiser under rule 334.
registrar means the registrar of the court that referred the proceeding to mediation or case appraisal.

def registrar amd 2001 SL No. 107 s 10; 2002 SL No. 223 s 31

sub 2012 SL No. 150 s 18 (2)

senior judicial officer ...

def senior judicial officer amd 2001 SL No. 107 s 10

om 2012 SL No. 150 s 18 (1)

314[Repealed]

r 314 amd 2001 SL No. 107 s 11

om 2010 SL No. 367 s 3

315[Repealed]

r 315 amd 2001 SL No. 107 s 12

om 2010 SL No. 367 s 3

316[Repealed]

r 316 om 2010 SL No. 367 s 3

317[Repealed]

r 317 om 2010 SL No. 367 s 3

318[Repealed]

r 318 amd 2007 SL No. 96 s 10; 2009 SL No. 162 s 2 sch

om 2012 SL No. 150 s 19

Division 2 Establishment of ADR processes

319Registrar to give notice of proposed reference to ADR process

(1)The court may direct the registrar to give written notice to the parties (the referral notice) that the parties’ dispute is to be referred, by order, to an ADR process to be conducted by a specified mediator or case appraiser.
(2)A party may object to the reference by filing an objection notice in the registry.
(3)The objection notice must—
(a)state the reasons why the party objects to the referral; and
(b)be filed within 7 days after the objecting party receives the referral notice.
(4)If an objection notice is filed, the court may require the parties or their representatives to attend before it (the hearing).
(5)The court may make an order at the hearing it considers appropriate in the circumstances.

320When referral may be made

The court may also refer a dispute in a proceeding for mediation or case appraisal—
(a)on application by a party; or
(b)if the proceeding is otherwise before the court.

321Proceedings referred to ADR process are stayed

Subject to an order of the court, if a dispute in a proceeding is referred to an ADR process, the dispute and all claims made in the dispute are stayed until 6 business days after the report of the ADR convenor certifying the finish of the ADR process is filed with the registrar.

322When does a party impede an ADR process

A party impedes an ADR process if the party fails to—
(a)attend at the process; or
(b)participate in the process; or
(c)pay an amount the party is required to pay under a referring order within the time stated in the order.

Division 3 Mediation

323Referral of dispute to appointed mediator

(1)A referring order for a mediation must—
(a)appoint as mediator—
(i)a specified mediator; or
(ii)a mediator to be selected by the parties; and
(b)include enough information about pleadings, statements of issues or other documents to inform the mediator of the dispute and the present stage of the proceeding between the parties; and
(c)set a period beyond which the mediation may extend only with the authorisation of the parties or estimate how long the mediation should take to finish; and
(d)state how the mediator is to be informed of the appointment; and
(e)require the parties, if the mediation is not completed within 3 months of the date of the referring order, to provide a report setting out the circumstances of the matter to the registrar who may refer the matter to the court for resolution.
(2)The order must also—
(a)set the ADR costs or estimate the costs to the extent possible; and
(b)state the percentage of ADR costs each party must pay; and
(c)provide to whom and by when the ADR costs must be paid.
(3)Instead of setting or estimating the appointed mediator’s fee, the order may direct the parties to negotiate a fee with the appointed mediator.
(4)The order must be made in the approved form.
(5)A mediator must have regard to an amended pleading, including amendments made after the referring order.

r 323 amd 2012 SL No. 150 s 20

324When mediation must start and finish

A mediator must start a mediation as soon as possible after the mediator’s appointment and try to finish the mediation within 28 days after the appointment.

325Parties must assist mediator

The parties must act reasonably and genuinely in the mediation and help the mediator to start and finish the mediation within the time estimated or set in the referring order.

326Mediator’s role

(1)The mediator may gather information about the nature and facts of the dispute in any way the mediator decides.
(2)The mediator may decide whether a party may be represented at the mediation and, if so, by whom.
(3)During the mediation, the mediator may see the parties, with or without their representatives, together or separately.

327Liberty to apply

The mediator or a party may apply to the court at any time for directions on any issue about the mediation.

328Mediator may seek independent advice

(1)The mediator may seek legal or other advice about the dispute from independent third parties.
(2)However, if the advice involves extra cost, the mediator must first obtain—
(a)the parties’ agreement to pay the extra cost; or
(b)the court’s leave.
(3)If the court gives leave, the court must also—
(a)order the parties to pay the extra cost; and
(b)state to whom and by when the payment must be made.
(4)The mediator must disclose the substance of the advice to the parties.

329Record of mediation resolution

(1)Unless the parties otherwise agree, the mediator must ensure that an agreement mentioned in the Civil Proceedings Act 2011, section 48 is—
(a)placed in a sealed container, for example, an envelope; and
(b)marked with the court file number; and
(c)marked ‘Not to be opened without an order of the court’; and
(d)filed in the court.

Note—

The Civil Proceedings Act 2011, section 48 provides for a written mediated resolution agreement signed by each party and the mediator.
(2)The container may be opened only if the court orders it to be opened.
(3)No fee is payable for filing the agreement.

r 329 amd 2007 SL No. 96 s 11; 2009 SL No. 162 s 2 sch; 2012 SL No. 150 s 21

330Abandonment of mediation

(1)The mediator may abandon the mediation if the mediator considers further efforts at mediation will not lead to the resolution of the dispute or an issue in the dispute.
(2)Before abandoning the mediation, the mediator must—
(a)inform the parties of the mediator’s intention; and
(b)give them an opportunity to reconsider their positions.

331Requirements for certificate about mediation

(1)This rule applies to a certificate mentioned in the Civil Proceedings Act 2011, section 49(1).

Note—

The Civil Proceedings Act 2011, section 49(1) requires a mediator to file a certificate about the mediation.
(2)The certificate must not contain comment about the extent to which a party participated or refused to participate in the mediation.
(3)However, the certificate may indicate that a party did not attend the mediation.
(4)No fee is payable for filing the certificate.

r 331 amd 2007 SL No. 96 s 12; 2009 SL No. 162 s 2 sch; 2012 SL No. 150 s 22

332Unsuccessful mediations

If a mediation is unsuccessful, the dispute may go to trial or be heard in the ordinary way without any inference being drawn against any party because of the failure to settle at the mediation.

333Replacement of mediator

(1)The court may, by further order, revoke the appointment of a mediator and appoint someone else as mediator if the court is satisfied it is desirable to do so.
(2)When appointing a substitute mediator, the court may decide the amount (if any) to be paid to the retiring mediator for work done.

Division 4 Case appraisal

334Referral of dispute to appointed case appraiser

(1)A referring order for a case appraisal must—
(a)appoint as case appraiser—
(i)a specified case appraiser; or
(ii)a case appraiser to be selected by the parties; and
(b)state what dispute is referred; and
(c)include enough information about pleadings, statements of issues or other documents to inform the case appraiser of the dispute and the present stage of the proceeding between the parties; and
(d)set a period beyond which the case appraisal may extend only with the authorisation of the parties or estimate how long the case appraisal should take to finish; and
(e)state how the case appraiser is to be informed of the appointment; and
(f)require the parties, if the case appraisal is not completed within 3 months of the date of the referring order, to provide a report setting out the circumstances of the matter to the registrar who may refer the matter to the court for resolution.
(2)The order must also—
(a)set the ADR costs or estimate the costs to the extent possible; and
(b)state the percentage of ADR costs each party must pay; and
(c)state to whom and by when the ADR costs must be paid.
(3)The order may be made even if the dispute has been referred previously for a mediation.
(4)Instead of setting or estimating the appointed case appraiser’s fee, the order may direct the parties to negotiate a fee with the appointed case appraiser.
(5)The order must, as far as practicable, be made in the approved form.
(6)A case appraiser must have regard to an amended pleading, including amendments made after the referring order.

335Jurisdiction of case appraiser

(1)The case appraiser for a referred dispute has the power of the court referring the dispute to decide the issues in dispute in the referred dispute.
(2)However, the case appraiser—
(a)may only give a decision that could have been given in the dispute if it had been decided by the court; and
(b)can not punish for contempt.
(3)Subrule (1) is subject to rules 341 and 343.

Note—

Rule 341 provides that, in the absence of an election under rule 343, the parties are taken to have consented to the case appraiser’s decision which then becomes final and binding. Rule 343 provides that a party dissatisfied with a case appraiser’s decision may elect to go to trial.

r 335 amd 2009 SL No. 162 s 2 sch

336Appearances

(1)A party appearing before a case appraiser has the same rights to appear by lawyer or otherwise the party would have if the appearance were before the court referring the dispute.
(2)For a proceeding in a Magistrates Court, this rule is subject to chapter 13, part 9, division 2.

r 336 amd 2009 SL No. 265 s 74

337Case appraiser may seek information

(1)A case appraiser may ask anyone for information and may obtain, and act on, information obtained from anyone on any aspect of the dispute.
(2)However, if obtaining the information involves extra cost, the case appraiser must first obtain—
(a)the parties’ agreement to pay the extra cost; or
(b)the court’s leave.
(3)If the court gives leave, the court must also—
(a)order the parties to pay the extra cost; and
(b)state to whom and by when the payment must be made.
(4)The case appraiser must disclose the substance of the information to the parties.

338Case appraisal proceeding may be recorded

(1)A case appraiser may have the case appraisal proceeding recorded if the case appraiser considers it appropriate, in the special circumstances of the proceeding.
(2)If the proceeding is to be recorded, the case appraiser must decide the extent to which, and the way in which, the recording may be done.

339Case appraiser’s decision

(1)A case appraiser’s decision must be in writing, but the case appraiser need not give reasons for the decision.
(2)However, a case appraiser may, at any stage of a case appraisal proceeding, decline to proceed further with the proceeding.

Example of subrule (2)—

The dispute proves to be unsuitable for case appraisal.
(3)A copy of the decision must be given to each party.

340Case appraiser’s decision on costs in the dispute

(1)In a referred dispute, a case appraiser has the same power to award costs in the dispute the court that referred the dispute would have had if it had heard and decided the dispute.
(2)A case appraiser’s decision under rule 339(1) must include a decision on costs in the dispute.

341Effect of case appraiser’s decision

(1)A case appraiser’s decision has effect only to the extent specified in this division.
(2)If an election under rule 343 is not made, the parties are taken to have consented to the case appraiser’s decision being binding on them and the decision then becomes final and binding.

342Requirements for case appraiser’s certificate and decision

(1)This rule applies to—
(a)a certificate mentioned in the Civil Proceedings Act 2011, section 49(2)(a); and
(b)a case appraiser’s decision mentioned in section 42(2)(b) of that Act.

Note—

The Civil Proceedings Act 2011, section 49(2) requires a case appraiser to file a certificate about the case appraisal and the case appraiser’s decision.

(2)If the case appraiser makes a decision about the dispute or any issue in the dispute, the case appraiser must—
(a)place the written decision in a sealed container, for example, an envelope; and
(b)mark the container with the court file number; and
(c)mark the container ‘Not to be opened without an order of the court’; and
(d)file the container in the court.
(3)The container may be opened only if the court orders it to be opened.
(4)No fee is payable for filing the certificate and decision.

r 342 amd 2007 SL No. 96 s 13; 2009 SL No. 162 s 2 sch; 2012 SL No. 150 s 23

343Dissatisfied party may elect to continue

(1)A party who is dissatisfied with a case appraiser’s decision may elect to have the dispute go to trial or be heard in the ordinary way by filing an election in the approved form with the registrar.
(2)The election must be filed within 28 days after the case appraiser’s certificate is filed in the registry.
(3)If an election is filed—
(a)the case appraiser’s decision has no effect other than as provided by rule 344; and
(b)the dispute must be decided in a court as if it had never been referred to the case appraiser.

344Court to have regard to case appraiser’s decision when awarding costs

(1)If the court’s decision in the dispute is not more favourable overall to a challenger than the case appraiser’s decision in the dispute was to the challenger, the costs of the proceeding and the case appraisal must be awarded against the challenger.
(2)However, the court may make another order about costs if the court considers there are special circumstances.
(3)If all parties are challengers, the case appraiser’s decision has no effect on the awarding of costs.
(4)In this rule—
challenger means a party who filed an election under rule 343.

345Replacement of case appraiser

(1)The court may, by further order, revoke the appointment of a case appraiser and appoint someone else as case appraiser if the court is satisfied it is desirable to do so.
(2)When appointing a substitute case appraiser, the court may decide the amount (if any) to be paid to the retiring case appraiser for work done.

Division 5 ADR costs

346Payment of ADR costs

Each party to an ADR process is severally liable for the party’s percentage of the ADR costs in the first instance.

347Party may pay another party’s ADR costs

(1)If a party to an ADR process does not pay the party’s percentage of ADR costs, another party may pay the amount.
(2)If another party pays the amount, the amount is the other party’s costs in any event.

348If ADR costs paid to registrar

If an amount is paid to the registrar for a convenor’s fee or a venue provider’s fee, the registrar must, if appropriate, pay the amount to the convenor or venue provider.

349When ADR convenor or venue provider may recover further costs

(1)If a referring order deals with ADR costs by setting a fee rate and period for which the rate is to be paid, an ADR convenor or venue provider may recover an amount for any additional period only if the parties authorise the ADR process to continue beyond the period set in the order.
(2)If a referring order deals with ADR costs in another way, an ADR convenor or venue provider may recover an amount that is more than the amount stated or estimated in the order or negotiated only if the parties agree in writing to the payment of a greater amount.
(3)The parties are severally liable for an amount recoverable under subrule (1) or (2).
(4)The amount may be recovered as a debt payable to the convenor or provider.

350Court may extend period within which costs are to be paid or grant relief

(1)A party may apply to the court for an order—
(a)extending the time for payment of ADR costs; or
(b)relieving the party from the effects of noncompliance with any requirement about costs.
(2)The court may make any order it considers appropriate.

351Costs of failed ADR process are costs in the dispute

Unless otherwise ordered by the court, each party’s costs of and incidental to an ADR process not resulting in the full settlement of the dispute between the parties are the party’s costs in the dispute.

Part 5 Offer to settle

352Definitions for pt 5

In this part—
offer means an offer to settle made under this part.

def offer sub 2014 SL No. 320 s 7 (1)

offer to settle ...

def offer to settle om 2014 SL No. 320 s 7 (1)

proceeding means a proceeding—
(a)started by claim; or
(b)in which the court has made an order under rule 14 ordering the proceeding to continue as if started by claim; or
(c)started by originating application if an order or direction has been made for pleadings, or other documents defining the issues, to be filed and served.

def proceeding ins 2014 SL No. 320 s 7 (2)

r 352 amd 2011 SL No. 296 s 12

353If offer available

(1)A party to a proceeding may serve on another party to the proceeding an offer to settle 1 or more of the claims in the proceeding on the conditions specified in the offer.
(2)A party may serve more than one offer.
(3)An offer must be in writing and must contain a statement that it is made under this part.

r 353 amd 2014 SL No. 320 s 8

354Time for making offer

(1)An offer may be served—
(a)for a jury trial of a proceeding started by claim—at any time before a verdict is returned; and
(b)otherwise—at any time before final relief is granted.
(2)However, if an account is claimed in the first instance or if a claim involves taking an account, an offer may be served at any time before the certificate under rule 540 becomes final and binding.
(3)Further, if there is a judgment conditional on the assessment of damages, an offer may be served at any time before the damages are assessed.

r 354 amd 2014 SL No. 320 s 8

355Withdrawal or end of offer

(1)A party must specify in an offer a period, ending not less than 14 days after the day of service of the offer, during which the offer is open for acceptance, and the offer may not be withdrawn during that period without the court’s leave.
(2)An offer expressed to be open for acceptance for a specified period lapses at the end of the period.
(3)The court may, at any time within which an offer is open for acceptance, give leave to a party to withdraw the offer, but the offer may be accepted at any time before the application for leave to withdraw it is decided.
(4)An application for leave to withdraw an offer may be made without notice to another party.
(5)Subrule (2) has effect even though, at the end of the period for accepting the offer, an application for leave to withdraw it has not been decided by the court.
(6)The court may not, despite another provision of these rules, extend the time for accepting an offer.

r 355 amd 2000 SL No. 127 s 31; 2014 SL No. 320 s 8

356Effect of offer

An offer made under this part is taken to be an offer made without prejudice.

r 356 amd 2014 SL No. 320 s 8

357Disclosure of offer

(1)Subject to rule 365, no statement of the fact that an offer has been made may be contained in a pleading or affidavit.
(2)An offer must not be filed.
(3)If an offer is not accepted, no communication about the offer may be made to the court at the trial or hearing of the proceeding until all questions of liability and the relief to be given, other than costs, have been decided.
(4)Subrule (1) does not apply to an affidavit in support of an application for leave to withdraw an offer.
(5)After an application for leave to withdraw an offer is decided, the court must—
(a)place the application and any affidavits that contain a statement of the fact that an offer has been made in a sealed container, for example, an envelope; and
(b)mark the container with the court file number; and
(c)mark the container ‘Not to be opened without an order of the court’; and
(d)file the container in the court.
(6)The container may be opened only if the court orders it to be opened.
(7)No fee is payable for filing the container.

r 357 amd 2014 SL No. 320 s 8

358Acceptance of offer

(1)An offer may be accepted only by serving a written notice of acceptance on the party making the offer.
(2)An offer does not lapse on the making of a counteroffer.
(3)If an offeree rejects an offer or makes a counteroffer that is not accepted under this part, the offeree may subsequently accept the original offer during the period it is open for acceptance.
(4)If an offer is accepted, the court may incorporate any of its conditions into an order.
(5)If an offer is accepted that expressly or impliedly includes an offer to pay assessed costs, then on the filing of a notice of acceptance in the approved form—
(a)an order of the court is taken to have been made for the payment of costs in accordance with the offer; and
(b)the costs may, if required, be assessed under these rules.

r 358 amd 2010 SL No. 129 s 7; 2014 SL No. 320 ss 8, 9

359Person under a legal incapacity

(1)A party who is a person under a legal incapacity may make or accept an offer under this part.
(2)However, the making or the acceptance of an offer is not binding on the party unless it is approved by the court under rule 98 or the public trustee acting under the Public Trustee Act 1978, section 59.

r 359 amd 2014 SL No. 320 s 8

360Costs if offer by plaintiff

(1)If—
(a)the plaintiff makes an offer that is not accepted by the defendant and the plaintiff obtains an order no less favourable than the offer; and
(b)the court is satisfied that the plaintiff was at all material times willing and able to carry out what was proposed in the offer;

the court must order the defendant to pay the plaintiff’s costs calculated on the indemnity basis unless the defendant shows another order for costs is appropriate in the circumstances.

(2)If the plaintiff makes more than 1 offer satisfying subrule (1), the first of those offers is taken to be the only offer for this rule.

r 360 amd 2000 SL No. 127 s 32; 2014 SL No. 320 ss 8, 10

361Costs if offer by defendant

(1)This rule applies if—
(a)the defendant makes an offer that is not accepted by the plaintiff and the plaintiff does not obtain an order that is more favourable to the plaintiff than the offer; and
(b)the court is satisfied that the defendant was at all material times willing and able to carry out what was proposed in the offer.
(2)Unless a party shows another order for costs is appropriate in the circumstances, the court must—
(a)order the defendant to pay the plaintiff’s costs, calculated on the standard basis, up to and including the day of service of the offer; and
(b)order the plaintiff to pay the defendant’s costs, calculated on the standard basis, after the day of service of the offer.
(3)However, if the defendant’s offer is served on the first day or a later day of the trial or hearing of the proceeding then, unless the court otherwise orders—
(a)the plaintiff is entitled to costs on the standard basis to the opening of the court on the next day of the trial; and
(b)the defendant is entitled to the defendant’s costs incurred after the opening of the court on that day on the indemnity basis.
(4)If the defendant makes more than 1 offer satisfying subrule (1), the first of those offers is taken to be the only offer for this rule.

r 361 amd 2000 SL No. 127 s 33; 2014 SL No. 320 ss 8, 11

362Interest after service of offer

(1)This rule applies if the court gives judgment for the plaintiff for the recovery of a debt or damages and—
(a)the judgment includes interest or damages in the nature of interest; or
(b)under an Act the court awards the plaintiff interest or damages in the nature of interest.
(2)For giving judgment for costs under rule 360 or 361, the court must disregard the interest or damages in the nature of interest relating to the period after the day of service of the offer.

r 362 amd 2014 SL No. 320 s 8

362AMultiple beneficiaries

(1)If a wrongful death proceeding is brought for the benefit of 2 or more persons (the beneficiaries), a party to the proceeding may make an offer to settle 1 or more claims in the proceeding by payment of 1 amount to all the beneficiaries without stating how the amount is to be apportioned among the beneficiaries.
(2)If the offer is accepted, none of the amount is to be paid or payable to the plaintiff until the way in which the amount is to be apportioned among the beneficiaries is decided by—
(a)order of the court; or
(b)an agreement that is binding on each of the beneficiaries.
(3)An agreement about apportionment is not binding on a beneficiary who is a person under a legal incapacity unless it is approved by the court under rule 98 or the public trustee acting under the Public Trustee Act 1978, section 59.

r 362A ins 2005 SL No. 65 s 3

amd 2012 SL No. 150 s 24; 2014 SL No. 320 s 8

363Multiple defendants

(1)If there are 2 or more defendants, the plaintiff may make an offer to settle with any defendant, and any defendant may offer to settle with the plaintiff.
(2)However, if defendants are alleged to be jointly or jointly and severally liable to the plaintiff and rights of contribution or indemnity may exist between the defendants, this rule applies to the offer only if—
(a)for an offer made by the plaintiff—the offer is made to all of the defendants and is an offer to settle the claim against all the defendants; or
(b)for an offer made to the plaintiff—
(i)the offer is an offer to settle the plaintiff’s claim against all the defendants; and
(ii)if the offer is made by 2 or more defendants, by the conditions of the offer the defendants who make the offer are jointly or jointly and severally liable to the plaintiff for the whole of the amount of the offer.

r 363 amd 2014 SL No. 320 s 8

364Offer to contribute

(1)This rule applies if a defendant makes a claim (a contribution claim) to recover contribution or indemnity against a person, whether a defendant to the proceeding or not, in relation to a claim for a debt or damages made by the plaintiff in the proceeding.
(2)A party to the contribution claim may serve on another party to the contribution claim an offer, subject to any conditions specified in the offer—

(a)to settle the contribution claim; or
(b)to contribute towards an offer to settle the claim made by the plaintiff.

(3)The court may take account of an offer under subrule (2) in deciding whether it should order that the party on whom the offer was served should pay all or part of—
(a)the costs of the party who made the offer; and
(b)any costs the party is liable to pay to the plaintiff.
(4)Rules 356 and 357 apply, with any changes necessary, to an offer to contribute as if it were an offer.

r 364 amd 2014 SL No. 320 ss 8, 12

365Failure to comply with offer

If a party does not comply with an accepted offer, the other party may elect to—
(a)apply to the court for an order on the conditions of the offer and the court may make the order; or
(b)continue with the proceeding as if an offer had not been accepted.

r 365 amd 2014 SL No. 320 ss 8, 13

Chapter 10 Court supervision

Part 1 Directions

366Application for directions

(1)This part also applies to the Court of Appeal.
(2)The court may give directions about the conduct of a proceeding at any time.

Note—

See also the Supreme Court of Queensland Act 1991, section 17, the District Court of Queensland Act 1967, section 125 and the Magistrates Act 1991, section 12(2)(b) which provide for practice directions to be made.
(3)A party may apply to the court for directions at any time.

Note—

Chapter 11 (Evidence), part 8 (Exchange of correspondence instead of affidavit evidence) applies to an application under this part. Note, particularly, rule 447 (Application to court).

For other provisions about directions in Magistrates Courts, see chapter 13 (Trials and other hearings), part 9 (Magistrates Courts).

(4)A party may apply for directions either on an application made for the purpose or on application for other relief.

r 366 amd 2009 SL No. 162 s 2 sch; 2012 SL No. 150 s 25

367Directions

(1)The court may make any order or direction about the conduct of a proceeding it considers appropriate, even though the order or direction may be inconsistent with another provision of these rules.
(2)In deciding whether to make an order or direction, the interests of justice are paramount.
(3)Without limiting subrule (1), the court may at any time do any of the following in relation to a trial or hearing of a proceeding—
(a)require copies of pleadings for use by the court before the trial or hearing;
(b)limit the time to be taken by the trial or hearing;
(c)limit the time to be taken by a party in presenting its case;
(d)require evidence to be given by affidavit, orally or in some other form;
(e)limit the number of witnesses (including expert witnesses) a party may call on a particular issue;
(f)limit the time to be taken in examining, cross-examining or re-examining a witness;
(g)require submissions to be made in the way the court directs, for example, in writing, orally, or by a combination of written and oral submission;
(h)limit the time to be taken in making an oral submission;
(i)limit the length of a written submission or affidavit;
(j)require the parties, before the trial or hearing, to provide statements of witnesses the parties intend to call.
(4)In addition to the principle mentioned in subrule (2), in deciding whether to make an order or direction of a type mentioned in subrule (3), the court may have regard to the following matters—
(a)that each party is entitled to a fair trial or hearing;
(b)that the time allowed for taking a step in the proceeding or for the trial or hearing must be reasonable;
(c)the complexity or simplicity of the case;
(d)the importance of the issues and the case as a whole;
(e)the volume and character of the evidence to be led;
(f)the time expected to be taken by the trial or hearing;
(g)the number of witnesses to be called by the parties;
(h)that each party must be given a reasonable opportunity to lead evidence and cross-examine witnesses;
(i)the state of the court lists;
(j)another relevant matter.
(5)If the court’s order or direction is inconsistent with another provision of these rules, the court’s order or direction prevails to the extent of the inconsistency.
(6)The court may at any time vary or revoke an order or direction made under this rule.

368Proceeding already being managed by the court

(1)A proceeding may be managed by the court as constituted by a particular judge or magistrate, in accordance with an order, direction, practice direction about case management, administrative procedure of the court or otherwise.
(2)If a proceeding is managed under subrule (1), the court may direct that all applications in relation to the proceeding, or the trial or hearing of the proceeding, be heard and decided by the court as constituted by the particular judge or magistrate.

369Decision in proceeding

If the parties agree, the court may hear and decide a proceeding on an application for directions.

370Failure to attend

(1)This rule applies if a party—
(a)after receiving notice of a hearing for directions, does not attend a hearing for directions; or
(b)fails to comply with a direction, including a practice direction.
(2)The court may do any of the following—
(a)give the further directions the court considers appropriate;
(b)dismiss the application or proceeding;
(c)make another order dealing with the proceeding the court considers appropriate.
(3)In deciding whether to dismiss the application or proceeding, the court must have regard to the principle that the interests of justice are paramount.

Part 2 Failure to comply with rules or order

371Effect of failure to comply with rules

(1)A failure to comply with these rules is an irregularity and does not render a proceeding, a document, step taken or order made in a proceeding, a nullity.
(2)Subject to rules 372 and 373, if there has been a failure to comply with these rules, the court may—
(a)set aside all or part of the proceeding; or
(b)set aside a step taken in the proceeding or order made in the proceeding; or
(c)declare a document or step taken to be ineffectual; or
(d)declare a document or step taken to be effectual; or
(e)make another order that could be made under these rules (including an order dealing with the proceeding generally as the court considers appropriate); or
(f)make such other order dealing with the proceeding generally as the court considers appropriate.

372Application because of failure to comply with rules

An application for an order under rule 371 must set out details of the failure to comply with these rules.

Note—

Chapter 11 (Evidence), part 8 (Exchange of correspondence instead of affidavit evidence) applies to an application under this part. Note, particularly, rule 447 (Application to court).

r 372 amd 2009 SL No. 162 s 2 sch

373Incorrect originating process

The court may not set aside a proceeding or an originating process on the ground the proceeding was started by the incorrect originating process.

374Failure to comply with order

(1)This rule applies if a party does not comply with an order to take a step in a proceeding.
(2)This rule does not limit the powers of the court to punish for contempt of court.
(3)A party who is entitled to the benefit of the order may, by application, require the party who has not complied to show cause why an order should not be made against it.
(4)The application—
(a)must allege the grounds on which it is based; and
(b)is evidence of the allegations specified in the application; and
(c)must, together with all affidavits to be relied on in support of the application, be filed and served at least 2 business days before the day set for hearing the application.

Note—

See also rule 447 (Application to court).
(5)On the hearing of the application, the court may—
(a)give judgment against the party served with the application; or
(b)extend time for compliance with the order; or
(c)give directions; or
(d)make another order.
(6)The party who makes the application may reply to any material filed by the party who was served with the application.
(7)The application may be withdrawn with the consent of all parties concerned in the application or with the court’s leave.
(8)A judgment given under subrule (5)(a) may be set aside—
(a)if the application is made without notice—on an application to set the judgment aside; or
(b)otherwise—only on appeal.
(9)Despite subrule (8), if the court is satisfied an order dismissing the proceeding was made because of an accidental slip or omission, the court may rectify the order.

r 374 amd 2009 SL No. 162 s 2 sch

Part 3 Amendment

Division 1 Amendment generally

375Power to amend

(1)At any stage of a proceeding, the court may allow or direct a party to amend a claim, anything written on a claim, a pleading, an application or any other document in a proceeding in the way and on the conditions the court considers appropriate.
(2)The court may give leave to make an amendment even if the effect of the amendment would be to include a cause of action arising after the proceeding was started.
(3)If there is misnomer of a party, the court must allow or direct the amendments necessary to correct the misnomer.
(4)This rule is subject to rule 376.

r 375 sub 2004 SL No. 276 s 5

376Amendment after limitation period

(1)This rule applies in relation to an application, in a proceeding, for leave to make an amendment mentioned in this rule if a relevant period of limitation, current at the date the proceeding was started, has ended.
(2)The court may give leave to make an amendment correcting the name of a party, even if the effect of the amendment is to substitute a new party, only if—
(a)the court considers it appropriate; and
(b)the court is satisfied that the mistake sought to be corrected—
(i)was a genuine mistake; and
(ii)was not misleading or likely to cause any reasonable doubt as to the identity of the person intending to sue or intended to be sued.
(3)The court may give leave to make an amendment changing the capacity in which a party sues, whether as plaintiff or counterclaiming defendant, only if—
(a)the court considers it appropriate; and
(b)the changed capacity in which the party would then sue is one in which, at the date the proceeding was started by the party, the party might have sued.
(4)The court may give leave to make an amendment to include a new cause of action only if—
(a)the court considers it appropriate; and
(b)the new cause of action arises out of the same facts or substantially the same facts as a cause of action for which relief has already been claimed in the proceeding by the party applying for leave to make the amendment.

r 376 sub 2004 SL No. 276 s 5

377Amendment of originating process

(1)An originating process may not be amended except—
(a)if the amendment is a technical matter—with the leave of the registrar or the court; or
(b)if the originating process has not been served and all sealed copies of the originating process, and other documents filed with the originating process, are returned to the court that issued the originating process—with the leave of the registrar or the court; or
(c)otherwise—with the leave of the court.
(2)Subrule (1) does not apply to a pleading or particular included in an originating process.

r 377 amd 2006 SL No. 194 s 5

378Amendment before request for trial date

Before the filing of the request for trial date, a party may, as often as necessary, make an amendment for which leave from the court is not required under these rules.

379Disallowance of amendment

(1)If a party makes an amendment without leave before the filing of the request for trial date, another party may, within 8 days after service on the party of the amendment, apply to the court to disallow all or part of the amendment.
(2)On the application, the court may make an order it considers appropriate.

380Amendment after request for trial date

An amendment after the filing of the request for trial date may only be made with the leave of the court.

381Failure to amend after order

An order giving a party leave to amend a document ceases to have effect if the party has not amended the document in accordance with the order at the end of the time specified by the order for making the amendment, or, if no time was specified, at the end of 14 days after the day on which the order was made.

Division 2 Procedural matters

382Procedure for amending

(1)All amendments must be distinguished so as to be identifiable from the remainder of the document.
(2)If an amendment is made, the document amended must have a notation on it showing—
(a)the date of the amendment; and
(b)either—
(i)if the amendment was made by leave of the court, the date of the order giving leave; or
(ii)if the amendment was made other than by leave of the court, the number of the rule under which it was made.
(3)An amendment may be made in writing on the document being amended.
(4)However, if writing an amendment on the document is inconvenient or makes the document difficult to read, the party making the amendment must file a revised document incorporating and distinguishing the amendment.
(5)Subject to rule 74, if an originating process is amended and the amendment is made on the originating process, the appropriate officer of the court must stamp near the amendment with the seal of the court.
(6)If a revised originating process is filed under subrule (4), the appropriate officer of the court must stamp the revised originating process with the seal of the court.
(7)The court may direct how an amendment is to be made.

r 382 amd 2000 SL No. 127 s 34

383Who is required to make amendment

If the court orders an amendment be made to a document, the court may order a party, a registrar, judge’s associate or other appropriate person to make the amendment.

384Serving amendments

(1)All amendments under this part must be served on all parties as soon as practicable after being made.
(2)However, the court may dispense with the service of an amendment or it may give directions about service.

Division 3 Consequences of amendment

385Pleading to amendment

(1)If a party amends a pleading, another party may plead to the amended pleading or amend the opposite party’s own pleading.
(2)The pleading or amendment must be served within the time the opposite party then has to plead, or within 8 days after the day of being served with the amendment, whichever is the later.
(3)If an opposite party has pleaded before being served with an amendment to a pleading and does not plead again within the time specified in subrule (2), the opposite party is taken to rely on the original pleading as an answer to the amended pleading.

386Costs

The costs thrown away as a result of an amendment made under rule 378 are to be paid by the party making the amendment unless the court orders otherwise.

r 386 amd 2013 SL No. 289 s 10

387When amendment takes effect

(1)If a document is being amended under this part, the amendment takes effect on and from the date of the document being amended.
(2)However, an amendment including or substituting a cause of action arising after the proceeding started takes effect on and from the date of the order giving leave.
(3)Despite subrule (2), if an amendment mentioned in subrule (2) is made, then, for a limitation period, the proceeding as amended is taken to have started when the original proceeding started, unless the court orders otherwise.

r 387 amd 2004 SL No. 276 s 6

Division 4 Amending orders or certificates

388Mistakes in orders or certificates

(1)This rule applies if—
(a)there is a clerical mistake in an order or certificate of the court or an error in a record of an order or a certificate of the court; and
(b)the mistake or error resulted from an accidental slip or omission.
(2)The court, on application by a party or on its own initiative, may at any time correct the mistake or error.
(3)The other rules in this part do not apply to a correction made under this rule.

Part 4 Delay

389Continuation of proceeding after delay

(1)If no step has been taken in a proceeding for 1 year from the time the last step was taken, a party who wants to proceed must, before taking any step in the proceeding, give a month’s notice to every other party of the party’s intention to proceed.
(2)If no step has been taken in a proceeding for 2 years from the time the last step was taken, a new step may not be taken without the order of the court, which may be made either with or without notice.
(3)For this rule, an application in which no order has been made is not taken to be a step.

r 389 (4)–(5) exp 1 July 2000 (see r 389(5))

Part 5 Restricting particular applications

pt 5 (r 389A) ins 2005 SL No. 324 s 3

389ARestricting applications that are frivolous, vexatious or abuse of court’s process

(1)This rule applies if the court is satisfied that a party (the relevant party) to a proceeding (the existing proceeding) has made more than 1 application in relation to the existing proceeding that is frivolous, vexatious or an abuse of process.
(2)The court may make an order under this rule on application by a party to the existing proceeding or on its own initiative.
(3)The court may order that—
(a)the relevant party must not make a further application in relation to the existing proceeding without leave of the court; or
(b)the relevant party must not start a similar proceeding in the court against a party to the existing proceeding or against a party to the existing proceeding and any other person without leave of the court.
(4)The Supreme Court may also order that the relevant party must not start a similar proceeding in another court against a party to the existing proceeding or against a party to the existing proceeding and any other person without leave of that court.
(5)A court may dismiss an application made to the court in contravention of an order made under subrule (3) or (4) without hearing the applicant or another party to the application.
(6)A court may at any time vary or revoke an order made by it under this rule.
(7)If the Supreme Court makes an order under subrule (4) or varies or revokes an order made under subrule (4), the registrar of the Supreme Court must advise the registrars of the other courts.
(8)Practice directions may set out procedures in relation to an application or order made under this rule.
(9)This rule does not limit any inherent or other power of a court or judge.
(10)In this rule—
application in relation to the existing proceeding includes an appeal in relation to the existing proceeding.
similar proceeding, in relation to an existing proceeding, means a proceeding in which—
(a)the relief claimed is the same or substantially the same as the relief claimed in the existing proceeding; or
(b)the relief claimed arises out of, or concerns, the same or substantially the same matters as those alleged in the existing proceeding.

pt 5 (r 389A) ins 2005 SL No. 324 s 3

Chapter 11 Evidence

ch 11 pt 6 hdg om 2004 SL No. 115 s 7

Part 1 General

390Way evidence given

Subject to these rules or a direction by the court—
(a)evidence at the trial of a proceeding started by claim may only be given orally; and
(b)evidence in a proceeding started by application may only be given by affidavit.

Note—

See part 8 for exchange of correspondence instead of affidavit evidence for certain applications.

r 390 amd 2009 SL No. 162 s 2 sch

391Court may call evidence

(1)The court may, by order and on its own initiative, call a person before it as a witness in a proceeding.
(2)The court may give the directions about examination, cross-examination and re-examination of the person the court considers appropriate.
(3)The court may make the order it considers appropriate about 1 or more parties paying the witness’s attendance expenses.

392Evidence by telephone, video link or another form of communication

(1)The court may receive evidence or submissions by telephone, video link or another form of communication in a proceeding.
(2)The court may impose conditions for subrule (1).

393Plans, photographs, video or audio recordings and models

(1)This rule applies if a party intends to tender a plan, photograph, video or audio recording or model at a trial or hearing.
(2)Unless the court orders otherwise, at least 7 days before the trial or hearing starts, the party must give all other parties an opportunity to—
(a)inspect anything mentioned in subrule (1) the party intends to tender; and
(b)agree to its admission without proof.
(3)An application for an order under subrule (2) may be made without notice to another party and the court may direct that the application and any supporting evidence be placed in a sealed container, for example, an envelope.
(4)The container may be opened only if the court orders it to be opened.
(5)Noncompliance with subrule (2) does not affect the admissibility of a plan, photograph, video or audio recording or model.
(6)Compliance or noncompliance with subrule (2) may be taken into account on the question of costs.
(7)In this rule—
model includes a model or image generated by a computer.

r 393 amd 2009 SL No. 162 s 2 sch

394[Repealed]

r 394 om 2012 SL No. 150 s 26

395Evidence in other proceedings

A party may, with leave of the court, rely on evidence given or an affidavit filed in another proceeding or in an earlier stage of the same proceeding.

395AApplication to obtain evidence for civil proceedings in another jurisdiction

An application under the Evidence Act 1977, section 36 may be made without notice to any person.

r 395A ins 2005 SL No. 324 s 4

Part 2 Evidence given out of court

396Order for examination

(1)The court may, for obtaining evidence for use in a proceeding, order the examination on oath of a person before a judge, magistrate or another person appointed by the court as an examiner at a place inside or outside Queensland (an examination order).
(2)However, the court may not order the examination of a person before a judge of a higher court.

397Documents for examiner

The party who obtains an examination order must supply the examiner with copies of the documents in the proceeding necessary to inform the examiner of the relevant questions for the examination.

398Appointment for examination

(1)The examiner appoints a time and place for the examination.
(2)The time appointed must be as soon as practicable after the making of the examination order.
(3)The examiner must notify the party who obtained the examination order of the time and place fixed for the examination at least 7 days before the time appointed.
(4)The party who obtained the examination order must give notice of the time and place of the examination to the person to be examined and each other party at least 3 business days before the examination.
(5)Also, if the person to be examined is not a party to the proceeding, the party who obtained the examination order must serve the person with a subpoena under part 4 at least 3 business days before the examination unless the court directs otherwise.

Note—

See rule 419 (Conduct money) for the requirement as to conduct money.

r 398 amd 2009 SL No. 162 s 2 sch

399Conduct of examination

(1)Each party and each party’s counsel and solicitor may attend the examination.
(2)Unless the court orders otherwise, the person examined is examined, cross-examined and re-examined in accordance with the procedure of the court for taking evidence orally.
(3)The examiner may put any question to the person examined about the meaning of an answer given by the person or about any matter arising in the course of the examination.
(4)The examiner may adjourn the examination from time to time and from place to place.

400Examination of additional persons

(1)If the examiner is a judge or a magistrate, the examiner may, on the application of a party, examine a person who is not named or provided for in the examination order.
(2)If the examiner is not a judge or a magistrate, the examiner may, with the written consent of every other party to the proceeding, examine a person not named or provided for in the examination order.
(3)The examiner must attach the consent to the deposition under rule 402 of a person examined under subrule (2).

401Objections

(1)If a person being examined before an examiner objects to answering a question or producing a document or other thing, the question, the ground of the objection and, except if the objection is based on privilege, the answer, must be set out in the deposition or under rule 402 in a statement attached to the deposition.
(2)The court may, on the application of a party, decide the validity of the objection.
(3)If the court disallows the objection, it may—
(a)remit the examination back to the examiner with any necessary direction about the conduct of the examination; and
(b)make an order for the costs caused by the objection, including an order for costs against the person being examined.

402Recording evidence

(1)An examiner must ensure, if practicable, evidence given at an examination in Queensland is recorded under the Recording of Evidence Act 1962 or recorded in another way and authenticated by the examiner.
(2)The examiner must authenticate and sign any deposition or other recording.
(3)If evidence given at an examination is recorded in a deposition, it must—
(a)contain, in question and answer form, the evidence of the person examined; and
(b)be transcribed and read over by or to the witness in the examiner’s presence and in the presence of such of the parties as wish to attend; and
(c)be signed by the witness, or, if the witness refuses to sign the deposition, by the examiner for the witness.

403Authentication and filing

(1)This rule applies if a deposition under rule 402 is produced and the examiner is a person other than a judge or magistrate.
(2)The examiner must write on the deposition a statement signed by the examiner of the time occupied in taking the examination and the fees (if any) received for the examination.
(3)The examiner must send the deposition to the registrar, who must file it in the proceeding.
(4)The examiner must, unless the court orders otherwise, send exhibits at the examination to the registrar, who must deal with them as the court directs.

404Report of examiner

The examiner may report to the court on the examination or on the absence of a person from the examination.

405Default of person required to attend

(1)This rule applies if—
(a)a person has been required by subpoena to attend before an examiner other than a judge or magistrate; and
(b)the person does not attend or refuses to take an oath for the examination, answer a lawful question or produce a document or thing.
(2)The examiner must, if asked by a party, give the party a certificate signed by the examiner of the facts mentioned in subrule (1).
(3)On the filing of the certificate, the court may—
(a)order the person to attend before the examiner, be sworn, answer the question or produce the document or thing; and
(b)order the person to pay the costs caused by the person’s refusal.

r 405 amd 2011 SL No. 296 s 13

406Expenses etc. of person required to attend

A person required to attend before an examiner is entitled to payment for expenses and for loss of time to the same extent as a witness at trial.

r 406 amd 2011 SL No. 296 s 14

407Admissibility of deposition

(1)A deposition under rule 402 is admissible in evidence at the trial of a proceeding only if—
(a)the deposition is made under an examination order; or
(b)an Act provides for the deposition to be admissible.
(2)A deposition purporting to be signed by the person before whom it was taken is receivable in evidence without proof of the signature of the person.

408Letter of request

(1)This rule applies if the Supreme Court makes an order under the Evidence Act 1977, section 22 or otherwise for the sending of a letter of request for an examination.
(2)The party obtaining the order must, when the letter of request has been signed—
(a)file the following documents with the registrar—
(i)the letter of request;
(ii)any interrogatories to accompany the letter of request;
(iii)if English is not an official language of the country to whose judicial authorities the letter of request is to be sent—a translation of each of the documents mentioned in subparagraphs (i) and (ii) in an official language of the country appropriate to the place where the evidence is to be taken;
(iv)a copy of each of the documents mentioned in subparagraphs (i) to (iii);
(v)an undertaking under rule 409; and
(b)unless the court orders otherwise, serve a copy of each of the documents mentioned in paragraph (a)(i) to (iii) on each other party.
(3)A letter of request must be in the approved form.
(4)A translation filed under subrule (2) must be certified by the person making it to be a correct translation and the certificate must state the person’s full name and address and qualifications for making the translation.

409Undertaking

(1)An undertaking filed under rule 408 is an undertaking by the party obtaining the order or the party’s solicitor—
(a)to be responsible for all expenses incurred by the court or by any person at the request of the court in relation to the letter of request; and
(b)on being given notice of the amount of the expenses incurred—to pay the amount to the registrar.
(2)The registrar may require a security in support of the undertaking.

Part 3 Evidence for future right or claim

410Application

This part does not apply to Magistrates Courts.

411Proceeding to obtain evidence for future right or claim

(1)This rule applies if a person would, under the circumstances the person alleges to exist, become entitled to property or office on the happening of a future event, the right or claim to which can not be brought to trial before the happening of the event.
(2)The person may start a proceeding by application to obtain evidence that may be material for establishing the right or claim.
(3)The proceeding to obtain evidence for a future claim may only be started by application.
(4)The person against whom the right or claim is made is the respondent to the application.

412Order to obtain evidence for future claim

(1)In a proceeding to obtain evidence for a future right or claim, the court may make an order specifying the evidence that may be obtained and the way it may be obtained, including, for example, that there be a hearing.
(2)The court may only make an order under subrule (1) if it is satisfied that the applicant may, under the circumstances the applicant alleges to exist, become entitled to property or office on the happening of a future event, the right or claim to which can not be brought to trial before the happening of the event.

413Taking, use and admissibility of evidence obtained for future right or claim

The court may take the evidence in a proceeding to obtain evidence for a future right or claim or it may appoint an examiner under part 2.

Part 4 Subpoenas

Note—

See the Civil Proceedings Act 2011, part 7 which provides for matters relating to compliance with subpoenas.

pt 4 note ins 2012 SL No. 150 s 27

414Power to issue subpoena

(1)This rule applies to the following subpoenas—
(a)subpoenas for production;
(b)subpoenas to give evidence;
(c)subpoenas for production and to give evidence.
(2)The court may, on its own initiative or at the request of a party to a proceeding, issue a subpoena requiring the person specified in the subpoena to—
(a)attend to give evidence as directed by the subpoena; or
(b)produce a document or thing as directed by the subpoena; or
(c)do both of the things mentioned in paragraphs (a) and (b).
(3)The court may issue a subpoena electronically.
(4)A request for a subpoena—
(a)must specify the person to whom the subpoena is directed by name or description of office or position unless the registrar otherwise directs or the court otherwise orders; and
(b)must be filed.
(5)A party may file a single request under subrule (3) for the issuing of more than 1 subpoena.
(6)If a party files a request for a subpoena, the registrar may issue the subpoena.
(7)A subpoena must not be filed.
(8)A person to whom a subpoena is directed must comply with it.

r 414 amd 2018 SL No. 128 s 3

415Formal requirements

(1)A particular type of subpoena must be in the approved form for that type of subpoena.
(2)A subpoena must not be directed to more than 1 person.
(3)A subpoena must specify the person to whom it is directed by name or description of office or position.
(4)A subpoena to give evidence must state the date, time and place for attendance.
(5)A subpoena for production must—
(a)identify the document or thing to be produced; and
(b)state the date, time and place for production.
(6)Also, a subpoena for production must bear a notice, to be set out in the approved form advising the person required to comply with it that the person has the right to apply to the court to have the subpoena set aside on any sufficient grounds, including—
(a)want of relevance; or
(b)privilege; or
(c)oppressiveness, including oppressiveness because substantial expenses may not be reimbursed; or
(d)noncompliance with these rules.
(7)A subpoena for production and to give evidence must state the matters required to be stated in a subpoena under subrules (4), (5) and (6).
(8)Also, a subpoena must state the last date for service of the subpoena.
(9)If the person to whom a subpoena is directed is a corporation, the corporation must comply with the subpoena by its appropriate or proper officer.
(10)In this rule—
last date, for service of a subpoena, means—
(a)if the court has fixed a date by which the subpoena must be served—the date fixed by the court; or
(b)otherwise—the date that is 5 days before the earliest date the person to whom the subpoena is directed is required to comply with it.

r 415 amd 2018 SL No. 128 s 4

415A Change of date or time for attendance or production

(1)A party on whose behalf a subpoena was issued may give written notice to the person to whom the subpoena is directed of a date or time later than the date or time stated in the subpoena as the date or time to do either or both of the following—
(a)attend to give evidence;
(b)produce a document or thing.
(2)If notice is given under subrule (1), the subpoena has effect as if the date or time stated in the notice were the date or time stated in the subpoena.

r 415A ins 2018 SL No. 128 s 5

416Setting aside subpoena

The court may make an order setting aside all or part of a subpoena.

417Costs and expenses of complying with subpoena

(1)The court may order the party on whose behalf a subpoena was issued to pay the amount of any reasonable loss or expense incurred by the person to whom the subpoena is directed in complying with the subpoena.
(2)An order made under subrule (1) must fix the amount payable or direct that it be fixed by assessment.
(3)An amount fixed under this rule is in addition to—
(a)any amount payable under rule 419; and
(b)any amounts payable as normal witness expenses.

r 417 sub 2018 SL No. 128 s 6

418Cost of complying with subpoena if not a party

(1)This rule applies if—
(a)a subpoena for production is directed to a person who is not a party to the proceeding; and
(b)the court is satisfied that substantial loss or expense has been or would be incurred in complying with the subpoena.
(2)The court may order the party on whose behalf the subpoena was issued to pay all or part of the losses and expenses, including legal costs, incurred by the person to whom the subpoena is directed in responding properly to the subpoena.
(3)The court may fix the amount payable under subrule (2) or it may order the amount to be fixed by assessment.
(4)An amount payable under this rule is in addition to an amount payable under rule 419.
(5)An order under this rule may be made at the trial or hearing or at another time but in all cases before the order is made finally deciding the proceeding at first instance.
(6)If a party who is ordered to pay losses and expenses under subrule (2) obtains an order for the costs of the proceeding, the court may—
(a)allow the losses and expenses to be included in the costs recoverable by the party; or
(b)make another order it considers appropriate.

r 418 amd 2018 SL No. 128 s 7

419Conduct money

(1)Despite rule 414(8), the person to whom a subpoena to give evidence or a subpoena for production and to give evidence is directed need not comply with the requirements of the subpoena unless conduct money has been given or tendered to the person a reasonable period before the day the person is required to attend.
(2)Payment of conduct money is in addition to payment of amounts payable as normal witness expenses.

r 419 amd 2018 SL No. 128 s 8

420Production by non-party

(1)This rule applies in relation to the following subpoenas if the person to whom the subpoena is directed is not a party to the proceeding—
(a)a subpoena for production;
(b)a subpoena for production and to give evidence, to the extent the subpoena requires the production of a document or thing.
(2)The person must comply with the subpoena in a way mentioned in subrule (3) or (4).
(3)The person, or an agent of the person, may—
(a)attend at the date, time and place stated in the subpoena for production; and
(b)produce the subpoena, or a copy of it, and the document or thing required to be produced to the court or to any person authorised to take evidence in the proceeding.
(4)The person, or an agent of the person, may deliver or send the subpoena, or a copy of it, and the document or thing required to be produced to the registry from which the subpoena was issued, so they are received not less than 2 clear business days before the earliest date stated in the subpoena.
(5)If a document or thing is produced at the registry under subrule (4), the appropriate officer of the court must—
(a)issue a receipt to the person producing the document or thing; and
(b)produce the document or thing as the court directs.
(6)Also, if the person produces more than 1 document or thing under subrule (4), the person must, if requested by the registrar, give the officer a list of the documents or things produced.

r 420 amd 2011 SL No. 296 s 15; 2018 SL No. 128 s 9

420ACopy of document may be produced

(1)If a subpoena requires a person to produce a document, the person may comply with the subpoena by producing a copy of the document.
(2)Subrule (1) does not apply if the subpoena states the original document must be produced.
(3)For subrule (1), a copy of the document may be—
(a)a paper copy; or
(b)an electronic copy in an electronic file format approved by the registrar.

r 420A ins 2018 SL No. 128 s 10

421Service

(1)A subpoena may be served under chapter 4, parts 2, 3, 4 and 5 on the person to whom it is directed.
(2)Also, a subpoena may instead be served by—
(a)if the subpoena was issued electronically—the subpoena being emailed to the person; or
(b)if the subpoena was issued in any other way—an imaged copy of the subpoena being emailed to the person.
(3)However, compliance with a subpoena served under this rule may be enforced, and a proceeding may be taken for noncompliance with the subpoena, only if it is proved that—
(a)the subpoena, or an imaged copy of the subpoena, has been received by the person to whom it is directed; or
(b)the person to whom the subpoena is directed has actual knowledge of the subpoena.
(4)Despite rule 414(8), the person to whom a subpoena is directed need not comply with the requirements of the subpoena unless it is served on the person on or before the date stated in the subpoena as the last date for service of the subpoena.
(5)In this rule—
imaged copy, of a subpoena, means a copy of the subpoena in electronic form, created by scanning or otherwise imaging the subpoena in its paper form.
last date, for service of a subpoena, see rule 415(10).

r 421 sub 2018 SL No. 128 s 11

422 Court may give directions

The court may give directions about the removal from and return to the court, and the inspection, copying or disposal, of any document or thing that has been produced to the court in response to a subpoena.

r 422 prev r 422 amd 2009 SL No. 162 s 2 sch

om 2012 SL No. 150 s 28

pres r 422 ins 2018 SL No. 128 s 12

422A Inspecting particular documents and things produced

(1)This rule applies in relation to a document or thing produced under rule 420(4) for a proceeding.
(2)If requested in writing by a party to the proceeding, the registrar must—
(a)tell the party whether production in response to the subpoena has happened; and
(b)if a list has been given under rule 420(6)— give the party a copy of the list.
(3)The registrar may allow a party to the proceeding to inspect the document or thing unless 1 or more of the following persons objects to the inspection under rule 422B
(a)the person who produced the document or thing;
(b)another party to the proceeding;
(c)another person with a sufficient interest in the document or thing.
(4)A person other than a party may inspect the document or thing only if—
(a)the court gives leave for the inspection; and
(b)the inspection is in accordance with the leave.
(5)Subrule (4) applies subject to rule 422B.

r 422A ins 2018 SL No. 128 s 12

422B Objecting to inspection of particular documents and things produced

(1)This rule applies in relation to a document or thing produced under rule 420(4) for a proceeding.
(2)If the person producing the document or thing objects to it being inspected by a party to the proceeding, the person must, when producing the document or thing, give the registrar written notice of the objection and the grounds of the objection.
(3)If a party to the proceeding, or a person having a sufficient interest in the document or thing, objects to the document or thing being inspected by a party to the proceeding, the party or person may give the registrar written notice of the objection and the grounds of the objection.
(4)On receiving a notice of objection under subrule (2) or (3), the registrar—
(a)must give written notice of the objection to the party on whose behalf the subpoena was issued; and
(b)must not allow any person to inspect, or further inspect, the document or thing.
(5)The party on whose behalf the subpoena was issued may, on reasonable notice to the person who gave the notice of objection, apply to the court for a decision about the objection.

r 422B ins 2018 SL No. 128 s 12

422C Removal from registry of particular documents and things produced

(1)This rule applies in relation to a document or thing produced under rule 420(4) for a proceeding.
(2)The registrar may allow the document or thing to be removed from the registry only on an application in writing signed by the solicitor for a party to the proceeding.
(3)A solicitor who signs an application mentioned in subrule (2) and removes the document or thing from the registry is taken to undertake to the court that—
(a)the document or thing will be kept in the personal custody of the solicitor or of counsel briefed by the solicitor in the proceeding; and
(b)the document or thing will be returned to the court, as directed by the registrar, in the same condition, order and packaging in which it was removed.
(4)The registrar may grant an application under subrule (2), with or without conditions, or refuse the application.

r 422C ins 2018 SL No. 128 s 12

422D Production of documents and things in custody of court or another court

(1)A party to a proceeding may ask the registrar to produce a document or thing in the custody of the court or another court.
(2)The request must be made in writing and identify the document or thing.
(3)The registrar may, at any time after receiving the request, inform the party that the party should apply to the court, as constituted by a judge, for directions in relation to the request.

Note—

See rule 977(2)(a) for restrictions on taking particular documents out of the court.
(4)If the registrar acts under subrule (3), the registrar is not required to take any further action in relation to the request, other than to give effect to a direction made by the court.
(5)Subject to subrule (4), if the document or thing is in the custody of the court, the registrar must produce the document or thing—
(a)in court or to any person authorised to take evidence in the proceeding, as required by the party; or
(b)as the court directs.
(6)Subject to subrule (4), if the document or thing is in the custody of another court, the registrar must—
(a)ask the other court to send the document or thing to the registrar; and
(b)after receiving it, produce the document or thing—
(i)in court or to any person authorised to take evidence in the proceeding, as required by the party; or
(ii)as the court directs.

r 422D ins 2018 SL No. 128 s 12

Part 5 Expert evidence

pt hdg sub 2004 SL No. 115 s 7

Division 1 Preliminary

div hdg ins 2004 SL No. 115 s 7

423Purposes of pt 5

The main purposes of this part are to—
(a)declare the duty of an expert witness in relation to the court and the parties; and
(b)ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue in a proceeding by a single expert agreed to by the parties or appointed by the court; and
(c)avoid unnecessary costs associated with the parties retaining different experts; and
(d)allow, if necessary to ensure a fair trial of a proceeding, for more than 1 expert to give evidence on an issue in the proceeding.

r 423 sub 2004 SL No. 115 s 7

424Application of pt 5

(1)This part does not apply in relation to a witness giving evidence, whether orally or in writing, in a proceeding who is—
(a)a party to the proceeding; or
(b)a person whose conduct is in issue in the proceeding; or
(c)a doctor or another person who has given or is giving treatment or advice in relation to an injured person if the evidence is limited to 1 or more of the following matters in relation to the injured person—
(i)the results of any examination made;
(ii)a description of the treatment or advice;
(iii)the reason the treatment or advice was, or is being, given;
(iv)the results of giving the treatment or advice.
(2)This part also does not apply in relation to a proceeding for a minor claim in a Magistrates Court.

r 424 sub 2004 SL No. 115 s 7

425Definitions for pt 5

In this part—
appointed expert means an expert appointed under division 3 or 4, including a court appointed expert.
court appointed expert means an expert appointed by the court under division 3 or 4.
expert means a person who would, if called as a witness at the trial of a proceeding, be qualified to give opinion evidence as an expert witness in relation to an issue arising in the proceeding.
report, for a proceeding, means a document giving an expert’s opinion on an issue arising in the proceeding.

r 425 sub 2004 SL No. 115 s 7

Division 2 Evidence given by an expert

div hdg ins 2004 SL No. 115 s 7

426Duty of expert

(1)A witness giving evidence in a proceeding as an expert has a duty to assist the court.
(2)The duty overrides any obligation the witness may have to any party to the proceeding or to any person who is liable for the expert’s fee or expenses.

r 426 sub 2004 SL No. 115 s 7

427Expert evidence

(1)Subject to subrule (4), an expert may give evidence-in-chief in a proceeding only by a report.
(2)The report may be tendered as evidence only if—
(a)the report has been disclosed as required under rule 429; or
(b)the court gives leave.
(3)Any party to the proceeding may tender as evidence at the trial any expert’s report disclosed by any party, subject to producing the expert for cross-examination if required.
(4)Oral evidence-in-chief may be given by an expert only—
(a)in response to the report of another expert; or
(b)if directed to issues that first emerged in the course of the trial; or
(c)if the court gives leave.

r 427 sub 2004 SL No. 115 s 7; 2008 SL No. 112 s 4

428Requirements for report

(1)An expert’s report must be addressed to the court and signed by the expert.
(2)The report must include the following information—
(a)the expert’s qualifications;
(b)all material facts, whether written or oral, on which the report is based;
(c)references to any literature or other material relied on by the expert to prepare the report;
(d)for any inspection, examination or experiment conducted, initiated, or relied on by the expert to prepare the report—
(i)a description of what was done; and
(ii)whether the inspection, examination or experiment was done by the expert or under the expert’s supervision; and
(iii)the name and qualifications of any other person involved; and
(iv)the result;
(e)if there is a range of opinion on matters dealt with in the report, a summary of the range of opinion, and the reasons why the expert adopted a particular opinion;
(f)a summary of the conclusions reached by the expert;
(g)a statement about whether access to any readily ascertainable additional facts would assist the expert in reaching a more reliable conclusion.
(3)The expert must confirm, at the end of the report—
(a)the factual matters stated in the report are, as far as the expert knows, true; and
(b)the expert has made all enquiries considered appropriate; and
(c)the opinions stated in the report are genuinely held by the expert; and
(d)the report contains reference to all matters the expert considers significant; and
(e)the expert understands the expert’s duty to the court and has complied with the duty.

r 428 sub 2004 SL No. 115 s 7

429Disclosure of report

A party intending to rely on a report must, unless the court otherwise orders, disclose the report—
(a)if the party is a plaintiff—within 90 days after the close of pleading; or
(b)if the party is a defendant—within 120 days after the close of pleading; or
(c)if the party is not a plaintiff or defendant—within 90 days after the close of pleading for the party.

r 429 sub 2004 SL No. 115 s 7

429ASupplementary report

(1)If an expert changes in a material way an opinion in a report that has been disclosed, the expert must, as soon as practicable, provide a supplementary report stating the change and the reason for it.
(2)The supplementary report must comply with rule 428 and be disclosed as soon as practicable.

r 429A ins 2004 SL No. 115 s 7

429BCourt may direct experts to meet

(1)The court may, at any stage of a proceeding, direct experts to meet and—
(a)identify the matters on which they agree; and
(b)identify the matters on which they disagree and the reasons why; and
(c)attempt to resolve any disagreement.
(2)The court may, for the meeting—
(a)set the agenda; and
(b)specify the matters the experts must discuss; and
(c)direct whether or not legal representatives may be present; and
(d)give directions about the form of any report to be made to the court about the meeting; and
(e)give any other directions the court considers appropriate.
(3)Evidence of anything done or said, or an admission made, at the meeting is admissible at a trial of the proceeding only if all parties to the proceeding agree.
(4)However, subrule (3) does not apply to a report made to the court about the meeting identifying the matters mentioned in subrule (1)(a) or (1)(b).

r 429B ins 2004 SL No. 115 s 7

429CImmunity

An expert has the same protection and immunity for the contents of a report disclosed as required under these rules as the expert could claim if the contents of the report were given orally at a trial of the proceeding in which the report is disclosed.

r 429C ins 2004 SL No. 115 s 7

429DCosts

When deciding the order to make about the costs of a proceeding, the court may consider, in allowing, disallowing or limiting the costs for an expert’s report prepared for a party on an issue, the extent to which the proceedings may have been facilitated by the appointment of a person as the only expert in relation to the issue.

r 429D ins 2004 SL No. 115 s 7

Division 3 Experts appointed after proceeding started

div hdg ins 2004 SL No. 115 s 7

429EApplication of div 3

This division applies only in relation to proceedings in the Supreme Court.

r 429E ins 2004 SL No. 115 s 7

429FDefinition for div 3

In this division—
court means the Supreme Court.

r 429F ins 2004 SL No. 115 s 7

429GAppointment of experts

(1)If, after a proceeding has started, 2 or more parties agree that expert evidence may help in resolving a substantial issue in the proceeding, subject to rule 429H, those parties may in writing jointly appoint an expert to prepare a report on the issue.
(2)If parties to a proceeding are not able to agree on the appointment of an expert, subject to rules 429I and 429K, any party who considers that expert evidence may help in resolving a substantial issue in the proceeding may apply to the court for the appointment of an expert to prepare a report on the issue.
(3)Subject to rules 429J and 429K, the court may, on its own initiative and at any stage of a proceeding, if it considers that expert evidence may help in resolving a substantial issue in the proceeding, appoint an expert to prepare a report on the issue.

r 429G ins 2004 SL No. 115 s 7

429HExpert appointed by parties

(1)An expert may be appointed under rule 429G(1) only if—
(a)the parties appointing the expert agree in writing on the following matters—
(i)the issue in the proceeding the expert evidence may help resolve;
(ii)the identity of the expert;
(iii)when the report must be prepared by the expert and given to the parties to the agreement;
(iv)liability for fees and expenses payable to the expert; and
(b)the expert has been made aware of the content of this part and consents to the appointment.
(2)A copy of the agreement must be—
(a)signed by each party to the agreement; and
(b)filed in the court; and
(c)after being filed in the court, immediately served on any other party to the proceeding who is not a party to the agreement.
(3)The parties to the agreement must give the expert a statement of facts, agreed to by the parties to the agreement, on which to base the report.
(4)However, if the parties to the agreement do not agree on a statement of facts, then—
(a)unless the court directs otherwise, each of the parties to the agreement must give the expert a statement of facts on which to base the report; and
(b)the court may give directions about the form and content of the statement of facts to be given to the expert.
(5)The report is taken to be disclosed for this part if—
(a)a copy of the report is given to each party to the agreement; and
(b)within 14 days after the day by which all parties to the agreement have received a copy of the report, each party to the proceeding who is not a party to the agreement is given a copy of the report.
(6)Unless the court otherwise orders, the expert is the only expert who, in relation to the parties to the agreement, may give evidence in the proceeding on the issue.
(7)Unless the court otherwise orders, each party to the proceeding has the right to cross-examine the expert.

r 429H ins 2004 SL No. 115 s 7

429IExpert appointed by court on application

(1)A party applying to the court for appointment of an expert under rule 429G(2) must serve a copy of the application and the supporting material on each other party to the proceeding.
(2)The supporting material must—
(a)state the issue in the proceeding that expert evidence may help resolve; and
(b)name at least 3 experts who—
(i)are qualified to give expert evidence on the issue; and
(ii)have been made aware of the content of this part and consent to being appointed; and
(c)state any connection known to the applicant between an expert named and a party to the proceeding.
(3)When hearing the application, the court may receive other material and make other enquiries to help decide which expert to appoint.
(4)The court may appoint an expert other than an expert named in the supporting material.
(5)The court may appoint an expert only if the expert has been made aware of the content of this part and consents to the appointment.

r 429I ins 2004 SL No. 115 s 7

429JExpert appointed by court on court initiative

(1)In deciding whether to appoint an expert under rule 429G(3) in relation to an issue in a proceeding, the court may—
(a)ask each party to name at least 3 experts who—
(i)are qualified to give expert evidence on the issue; and
(ii)have been made aware of the content of this part and consent to being appointed; and
(b)require each party to state any connection between an expert named and a party to the proceeding; and
(c)receive other material and make other enquiries to help decide which expert to appoint.
(2)The court may appoint an expert other than an expert named by a party to the proceeding.
(3)The court may appoint an expert only if the expert has been made aware of the content of this part and consents to the appointment.

r 429J ins 2004 SL No. 115 s 7

429KConsiderations for court when appointing an expert

(1)In deciding whether to appoint an expert under rule 429G(2) or (3) in relation to an issue in a proceeding, the court may consider—
(a)the complexity of the issue; and
(b)the impact of the appointment on the costs of the proceeding; and
(c)the likelihood of the appointment expediting or delaying the trial of the proceeding; and
(d)the interests of justice; and
(e)any other relevant consideration.
(2)If the court considers an expert is the most appropriate expert to help resolve an issue in the proceeding, the court may appoint the expert even if the expert has already given a report to a party in the proceeding on the issue or on another issue in the proceeding.

r 429K ins 2004 SL No. 115 s 7

429LReport by court appointed expert given to registrar etc.

(1)Unless the court otherwise orders—
(a)a court appointed expert appointed in relation to an issue in a proceeding must—
(i)prepare a report on the issue; and
(ii)give the report to the registrar together with sufficient copies of the report for all parties to the proceeding; and
(b)the registrar must—
(i)file the report in a sealed envelope; and
(ii)within 7 days after receiving the report, forward a copy of it to each party to the proceeding.
(2)The report is taken to be disclosed for this part if the registrar forwards copies of the report to all parties as required.

r 429L ins 2004 SL No. 115 s 7

429MOrders and directions for court appointed experts

(1)The court may make the orders and give the directions it considers appropriate in relation to a court appointed expert, including, for example, 1 or more of the following orders or directions—
(a)an order or direction to facilitate the expert’s preparation of a report;
(b)a direction about any of the following matters—
(i)a party giving the expert written information relevant to the preparation of the report and forwarding a copy of the written information to each other party;
(ii)the extent a party may communicate with the expert;
(iii)an inspection, examination or experiment by the expert;
(iv)the expert obtaining a report from another expert in a discipline relevant to the issue in relation to which the expert was appointed;
(c)a direction about any of the following matters—
(i)when the expert must give the registrar the report;
(ii)liability for fees and expenses payable to the expert;
(iii)payment of any expenses incurred by the registrar;
(d)an order permitting cross-examination of the expert before an examiner under part 2 or before the trial starts.
(2)If the court directs that a report from another expert may be obtained by a court appointed expert, the other expert’s report must be attached to the court appointed expert’s report when it is given to the registrar.
(3)The court may receive in evidence the report of a court appointed expert on terms the court considers appropriate.

r 429M ins 2004 SL No. 115 s 7

429NConsequences of court appointment

(1)This rule applies if the court appoints an expert in relation to an issue in a proceeding.
(2)Unless the court otherwise orders, the expert is to be the only expert to give evidence in the proceeding on the issue.
(3)However, the court may, on its own initiative or on application by a party, appoint another expert (the other expert) to prepare a report in relation to the issue if—
(a)after receiving a report from the expert originally appointed (the first expert), the court is satisfied—
(i)there is expert opinion, different from the first expert’s opinion, that is or may be material to deciding the issue; or
(ii)the other expert knows of matters, not known by the first expert, that are or may be material to deciding the issue; or
(b)there are other special circumstances.

r 429N ins 2004 SL No. 115 s 7

429OCourt may direct access to information

(1)The court may direct a party to a proceeding who has access to information reasonably necessary for the preparation of a report by an appointed expert—
(a)to give the court or the expert a document stating the information; or
(b)to otherwise make the information reasonably available to the expert.
(2)Subrule (1) does not limit the directions a court may give under rule 429M.

r 429O ins 2004 SL No. 115 s 7

429PExpert may apply for directions

(1)An appointed expert may apply to the court for directions to facilitate the preparation of a report.
(2)The application must be served on the parties to the proceeding and on any other person directed by the court.
(3)The court may give the directions the court considers appropriate, including directions about an inspection, examination or experiment for the expert’s report.

r 429P ins 2004 SL No. 115 s 7

Division 4 Experts appointed before proceeding started

div hdg ins 2004 SL No. 115 s 7

429QDefinition for div 4

In this division—
court means the Supreme Court.

r 429Q ins 2004 SL No. 115 s 7

429RExpert appointed by disputants

(1)This rule applies if, before any proceeding is started, 2 or more persons (the disputants) agree in writing on the following matters—
(a)there is a dispute between them that will probably result in a proceeding and obtaining expert evidence immediately may help in resolving a substantial issue in the dispute;
(b)the identity of an expert from whom a report should be obtained;
(c)when the report must be prepared by the expert and given to the disputants;
(d)liability for fees and expenses payable to the expert.
(2)The disputants may in writing jointly appoint the agreed expert to prepare a report giving an opinion on the issue.
(3)The appointment must be expressed to be made under this rule.
(4)The disputants may appoint the expert only if the expert has been made aware of the content of this part and consents to the appointment.
(5)Rule 428(2) and (3) apply in relation to the report.
(6)Unless the court otherwise orders, in any proceeding started in the court between the disputants in which the issue is relevant, the expert is to be the only expert who, in relation to the disputants, may give evidence on the issue.

r 429R ins 2004 SL No. 115 s 7

429SExpert appointed by court on application

(1)This rule applies if, before any proceeding is started, a person (the first person) believes on reasonable grounds that—
(a)there is a dispute between the first person and 1 or more other persons that will probably result in a proceeding; and
(b)obtaining expert evidence immediately may help in resolving a substantial issue in the dispute.
(2)The first person may apply to the court for the appointment of an expert to prepare a report giving an opinion on the issue.
(3)The application and the supporting material must be served on the other person or persons.
(4)The supporting material must—
(a)describe the nature of the dispute; and
(b)state the issue in dispute that expert evidence may help resolve; and
(c)indicate why the report should be obtained immediately; and
(d)name at least 3 experts who—
(i)are qualified to give expert evidence on the issue; and
(ii)have been made aware of the content of this part and consent to being appointed; and
(e)state any previous connection between an expert named and the first person.
(5)The court, on being satisfied in relation to the matters mentioned in subrule (1)(a) and (b), may appoint an expert to give a report on the issue.
(6)The court may appoint an expert other than an expert named in the supporting material.
(7)In deciding whether to appoint an expert, the court may consider—
(a)the complexity of the issue; and
(b)the impact of the appointment on the costs of the contemplated proceeding; and
(c)the likelihood of the appointment expediting or delaying the contemplated proceeding; and
(d)the interests of justice; and
(e)any other relevant consideration.
(8)The court may give directions as to—
(a)the time in which the report is to be prepared and given to the first person; and
(b)any filing of the report.
(9)The court may make orders and give directions to facilitate the expert’s preparation of a report.
(10)Rule 428(2) and (3) apply in relation to the report.
(11)Unless the court otherwise orders, in any proceeding started in the court between the first person and 1 or more of the other persons in which the issue is relevant, the expert appointed under this rule is to be the only expert who, in relation to those persons, may give evidence on the issue.
(12)The fees and expenses of an expert appointed under this rule, and the costs of the application, are to be borne by the first person, unless and until the court otherwise orders either on the application or in any proceeding started between the first person and 1 or more of the other persons in which the issue is relevant.
(13)The court may give directions as to the right to cross-examine an expert appointed under this rule.

r 429S ins 2004 SL No. 115 s 7

Part 7 Affidavits

430Contents of affidavit

(1)Except if these rules provide otherwise, an affidavit must be confined to the evidence the person making it could give if giving evidence orally.
(2)However, an affidavit for use in an application because of default or otherwise for relief, other than final relief, may contain statements based on information and belief if the person making it states the sources of the information and the grounds for the belief.

Note—

For an application because of default, see chapter 9 (Ending proceedings early), part 1 (Default).
(3)On assessment, all or part of the costs of an affidavit not complying with these rules or unnecessarily including copies of or extracts from documents may be disallowed.

r 430 amd 2009 SL No. 162 s 2 sch

431Form of affidavit

(1)An affidavit must be in the approved form.
(2)A note must be written on an affidavit stating the name of the person making it and the name of the party on whose behalf it is filed.
(3)An affidavit must be made in the first person.
(4)An affidavit must describe the person making it and state the person’s residential or business address or place of employment.
(5)The body of an affidavit must be divided into paragraphs numbered consecutively, each paragraph being as far as possible confined to a distinct portion of the subject.
(6)Each page of an affidavit must be numbered.

432Swearing or affirming affidavit

(1)The person making an affidavit and the person taking the affidavit must sign each page of the affidavit.
(2)Subrule (3) applies if—
(a)the affidavit is made by 1 person; or
(b)although the affidavit is made by 2 or more persons, both or all of the persons are not swearing or affirming the affidavit at the same time before the same person.
(3)A statement (the jurat) must be placed at the end of the body of the affidavit and must—
(a)state the full name of the person making the affidavit before the person taking it; and
(b)state whether the affidavit was sworn or affirmed; and
(c)state the day and the place the person made the affidavit; and
(d)be signed by the person making it in the presence of the person authorised to take the affidavit; and
(e)then be signed by the person before whom the affidavit was taken, above a statement of the capacity of the person to take the affidavit; and

Note—

See the Oaths Act 1867, section 41
41Who may take affidavits
(1)A person’s affidavit may be taken by any of the following persons without a commission being issued for the purpose—
(a)a justice, commissioner for declarations or notary public under the law of the State, the Commonwealth or another State;
(b)a lawyer;
(c)a conveyancer, or another person authorised to administer an oath, under the law of the State, the Commonwealth or another State;
(d)if the affidavit is taken outside Australia—a person authorised to administer an oath under the law of the place in which the affidavit is taken.
(f)otherwise be as in the approved form.

Example of the capacity mentioned in paragraph (e)—

solicitor
(4)If the affidavit is made by 2 or more persons, 2 or more of whom are swearing or affirming the affidavit at the same time before the same person, then, in addition to any statement under subrule (3), a statement (the jurat) must be placed at the end of the body of the affidavit and must—
(a)state the full name of the persons making the affidavit before the person taking it; and
(b)state, for each of the persons making the affidavit, whether the affidavit was sworn or affirmed; and
(c)state the day and the place both or all the persons made the affidavit; and
(d)be signed by the persons making it in the presence of the person authorised to take the affidavit; and
(e)then be signed by the person before whom the affidavit was taken, above a statement of the capacity of the person to take the affidavit; and
(f)otherwise be as in the approved form.

r 432 amd 2009 SL No. 162 s 2 sch

433Certificate of reading or signature for person making affidavit

(1)If the person taking an affidavit considers that the person making it is incapable of reading the affidavit, the person taking the affidavit must certify in or below the jurat that—
(a)the affidavit was read or otherwise communicated in the person’s presence to the person making it; and
(b)the person seemed to understand the affidavit; and
(c)the person signified that the person made the affidavit.
(2)If the person taking an affidavit considers that the person making it is physically incapable of signing it, the person taking the affidavit must certify in or below the jurat that—
(a)the affidavit was read or otherwise communicated in the person’s presence to the person making it; and
(b)the person seemed to understand the affidavit; and
(c)the person signified that the person made the affidavit.
(3)If an affidavit is made by a person who is incapable of reading the affidavit or physically incapable of signing the affidavit and a certificate under subrule (1) or (2) does not appear on the affidavit, the affidavit may be used in a proceeding only if the court is satisfied that—
(a)the affidavit was read or otherwise communicated to the person making it; and
(b)the person seemed to understand it; and
(c)the person signified that the person made the affidavit.

r 433 amd 2009 SL No. 162 s 2 sch

434Alterations

(1)This rule applies if there is an interlineation, erasure or other alteration in any part of an affidavit.
(2)The affidavit may be filed but, unless the court orders otherwise, may only be used if the person who makes the affidavit and the person who takes the affidavit initials the alteration or erasure.

435Exhibits

(1)A document to be used with and mentioned in an affidavit is an exhibit.
(2)Another thing to be used with and mentioned in an affidavit may be an exhibit, if practicable.
(3)A group of different documents may form 1 exhibit.
(4)If it is impracticable to exhibit the document to be used with and mentioned in an affidavit, a copy of the document may be an exhibit to the affidavit.
(5)An exhibit to an affidavit must have—
(a)a letter, number or other identifying mark on it; and
(b)a certificate in the approved form on it or bound with it.
(6)The certificate must be signed by the person who made the affidavit and the person who took the affidavit.
(7)However, if an affidavit is taken under rule 433, only the person who took the affidavit must sign the certificate.
(8)An exhibit to an affidavit must be filed at the same time as the affidavit.
(9)Subrules (10) and (11) apply if—
(a)an exhibit to an affidavit is comprised of a group of documents; or
(b)there is more than one documentary exhibit to an affidavit.
(10)The documents are to be presented in a way that will facilitate the court’s efficient and expeditious reference to them.
(11)As far as practicable—
(a)the documents are to be bound in 1 or more paginated books; and
(b)a certificate is to be bound—
(i)if there is 1 book—at the front of the book; or
(ii)if there is more than 1 book—at the front of each book dealing with the exhibits in the book; and
(c)an index to each book is to be bound immediately after the certificate.
(12)If a document or other thing has been filed in a proceeding, whether or not as an exhibit to an affidavit, in a subsequent affidavit filed in the proceeding—
(a)the document or thing must not be made an exhibit to the affidavit; and
(b)the document or thing may be referred to in the affidavit in a way sufficient to enable the document or thing to be identified.

r 435 amd 2000 SL No. 127 s 35; 2001 SL No. 281 s 11

436Irregularity

(1)An affidavit may, unless the court orders otherwise, be filed despite an irregularity in form, including a failure to use the approved form.
(2)An affidavit may, with the leave of the court, be used despite an irregularity in form and the affidavit must have on it a memorandum by the court or the appropriate associate or clerk that it was used by leave.
(3)An affidavit used under subrule (2) is afterwards taken as a regular affidavit.

437Filing

Unless the court gives leave, an affidavit may be used in a proceeding only if it has been filed.

438Service

The court may, at any time, give leave to a party to use an affidavit that has not been served or that was served later than the time specified in these rules.

439Examination of person making affidavit

(1)If an affidavit is to be relied on at a hearing, the court may order the person making it to be examined and cross-examined before the court and may order the person to attend the court for the purpose.
(2)If an affidavit to be relied on at a hearing is served on a party more than 1 business day before the hearing and the party wishes the person who made the affidavit to attend the court for cross-examination, the party must serve a notice to that effect on the party on whose behalf the affidavit is filed at least 1 business day before the date the person is required for examination.
(3)If an affidavit to be relied on at a hearing is served on a party less than 2 business days before the hearing, the person who made the affidavit must attend the court to be available for cross-examination unless the party otherwise agrees.
(4)If the person who made the affidavit does not attend the court in compliance with the notice or subrule (3), the court may refuse to receive the affidavit into evidence.
(5)However, the court may—
(a)dispense with the attendance for cross-examination of a person making an affidavit; and
(b)direct that an affidavit be used without the person making the affidavit being cross-examined in relation to the affidavit.
(6)Unless the court orders otherwise, a party who serves a notice under subrule (2) for the person who made an affidavit to attend the court is not liable to pay the expenses of the attendance.

440Scandal and oppression

If there is scandalous or oppressive matter in an affidavit, the court may order that—
(a)the affidavit be removed from the file; or
(b)the affidavit be removed from the file and destroyed; or
(c)the scandalous or oppressive matter in the affidavit be struck out.

441Affidavit taken before party

The court may not receive, and a party may not file, an affidavit taken by a party personally.

Part 8 Exchange of correspondence instead of affidavit evidence

442Definitions for pt 8

In this part—
applicant means a party seeking an order in relation to an application under this part.
respondent means a party who must be served with notice of an application under this part.

443Application of pt 8

This part applies to the following applications—
(a)an application for further and better particulars of the opposite party’s pleading under rule 161;
(b)an application under chapter 10, part 1;
(c)an application under chapter 10, part 2;
(d)any other application relating to a failure to comply with an order or direction of the court.

444Applicant’s letter to respondent

(1)Before making an application mentioned in rule 443, the applicant must write to the respondent specifying the following matters—
(a)the applicant’s complaint;
(b)a brief statement of the relevant facts;
(c)the relief sought by the applicant;
(d)why the applicant should have the relief;
(e)a time (at least 3 business days after the date of the letter) within which the respondent must reply to the letter (the nominated time);
(f)that the letter is written under this part.
(2)The applicant—
(a)need not serve the letter on the respondent under chapter 4; and
(b)may send the letter to the respondent by fax.
(3)The applicant must send a copy of the letter to every person the applicant would be required to serve or notify if the applicant was making an application to the court for the relief sought.
(4)The letter must list the persons to whom a copy of the letter is sent.
(5)The applicant need not comply with subrule (3) if complying would—
(a)cause the applicant undue delay, expense or inconvenience; or
(b)unduly prejudice the applicant if a person mentioned in subrule (3) saw the contents of the letter.

445Respondent’s reply

(1)If the respondent receives a letter from the applicant written under this part, the respondent must write to the applicant, specifying the following matters—
(a)that the letter is a reply to the applicant’s letter under this rule;
(b)what, if anything, the respondent proposes to do in response to the applicant’s complaint;
(c)if applicable, why the applicant should not have the relief to be sought.
(2)The respondent’s letter of reply must be sent to the applicant within the nominated time.
(3)The respondent must send a copy of the letter of reply to every person the respondent would be required to serve or notify if the applicant was making an application to the court for the relief sought.
(4)The letter must list the persons to whom a copy of the letter of reply is sent.
(5)The respondent need not comply with subrule (3) if complying would—
(a)cause the respondent undue delay, expense or inconvenience; or
(b)unduly prejudice the respondent if a person mentioned in subrule (3) saw the contents of the letter of reply.

446Additional correspondence

Rules 444 and 445 do not prevent the applicant and respondent from writing to each other in addition to the correspondence required under this part.

447Application to court

(1)The applicant may apply to the court only after—
(a)the applicant receives a reply from the respondent under rule 445; or
(b)the nominated time for replying has passed.
(2)The following documents must be filed with the application—
(a)the applicant’s letter to the respondent;
(b)the respondent’s reply (if any);
(c)other relevant correspondence between the applicant and the respondent exchanged after—
(i)the applicant receives the respondent’s reply; or
(ii)the nominated time for replying has passed;
(d)relevant responses from any other person notified under this part;
(e)a list of the affidavits (if any) on which the applicant wishes to rely.

448Hearing of application

(1)The court may hear an application that does not comply with this part if the court directs.
(2)The court may decide an application to which this part applies on the basis of, or partly on the basis of, the contents of the letters between the applicant and the respondent.
(3)The court may receive affidavit evidence in relation to the application only if the court directs.
(4)Subrule (3) applies despite rule 390.

Chapter 12 Jurisdiction of registrar

ch hdg amd 2012 SL No. 150 s 29

449Definition for ch 12

In this chapter—
relevant application means an application the registrar may hear and decide under rule 452.

def relevant application sub 2012 SL No. 150 s 30

r 449 amd 2011 SL No. 296 s 16

450Application of ch 12

This chapter applies only to the Trial Division of the Supreme Court and the District Court.

451[Repealed]

r 451 om 2012 SL No. 150 s 31

452Registrar’s powers to hear and decide applications

(1)A registrar of a central registry of the Supreme Court may constitute the court to hear and decide an unopposed application for an order under the Public Trustee Act 1978, part 3.
(2)A registrar of the Supreme Court or District Court may constitute the court to hear and decide—
(a)an application for an order to file any document or take any document off the file or admit informal affidavits to be filed; or
(b)an application of a type prescribed by practice direction.

r 452 amd 2012 SL No. 150 s 32

453Court may decide that matter can not be heard by registrar

The court, as constituted by a judge, may order or direct that a relevant application in a particular proceeding can not be heard by the court as constituted by a registrar.

Example—

The court may order or direct that a relevant application in a proceeding can not be heard by the court as constituted by a registrar because the court, as constituted by a particular judge, is managing the entire proceeding.

r 453 amd 2012 SL No. 150 s 33

454Relevant application must not be made to the court

If a registrar is available, a person may make a relevant application to the court as constituted by a judge only if the court gives leave.

r 454 amd 2012 SL No. 150 s 34

455Referring relevant application

(1)If a registrar considers it would be proper for a relevant application to be decided by the court as constituted by a judge, the registrar must refer the application to the court as constituted by a judge.
(2)The court, as constituted by a registrar, must also refer the application to the court as constituted by a judge if, before the hearing starts—
(a)a party asks the court to do so; and
(b)the registrar considers it is in the interests of justice to do so.
(3)On a reference, the court, as constituted by a judge, may give a direction about the conduct of the application.

r 455 amd 2012 SL No. 150 s 35

456Removing relevant applications

The court as constituted by a judge may, before the end of a hearing of a relevant application before the court as constituted by a registrar, order that the application or a part of it be removed to the court as constituted by a judge.

r 456 amd 2012 SL No. 150 s 36

457Involvement of court as constituted by a judge

(1)This rule applies if there is—
(a)a reference of a relevant application under rule 455(1) or (2); or
(b)a removal of a relevant application under rule 456.
(2)The court as constituted by a judge may—
(a)hear and decide the application; or
(b)decide a matter arising under the application or remit a matter to the court as constituted by a registrar with directions that the court considers appropriate; or
(c)remit the application to the court as constituted by a registrar with directions that the court considers appropriate.

r 457 amd 2012 SL No. 150 s 37

458General powers

(1)A person who contravenes a subpoena issued by a registrar is guilty of contempt of the court, unless the person has a reasonable excuse.
(2)The court as constituted by a registrar must refer a matter involving a person’s liability for contempt under this rule, including punishment for the contempt, to the court as constituted by a judge for decision.
(3)To prevent doubt, the court as constituted by a registrar may make an order about costs in relation to a relevant application that the registrar considers appropriate.

r 458 amd 2012 SL No. 150 s 38

459Decision

The court as constituted by a registrar must, if practicable, decide a relevant application within 14 days after starting to consider it.

r 459 amd 2012 SL No. 150 s 39

460Power to correct mistakes

Rule 388 applies to the registrar constituting the court under this chapter.

r 460 amd 2012 SL No. 150 s 40

Chapter 13 Trials and other hearings

Part 1 Listing applications for hearing

461Application of pt 1

This part applies to originating and other applications.

462List of applications

On the filing of an application, the registrar must record a return date for the matter to come before the court.

463Estimate of hearing time

(1)A party bringing an application must write on the application an estimate of the duration of the hearing of the application.
(2)However, if the matter to which the application relates is settled, the party bringing the application must, as soon as practicable after the matter settles, notify the registrar that the matter is settled.
(3)Also, any party who becomes aware of a change in the estimated duration of the hearing must, as soon as practicable after becoming aware of the change, notify the registrar of the changed estimate.

464Adjournments

(1)If an application is adjourned to a particular date, the registrar on a request for relisting must record it in the appropriate list for the adjourned date.
(2)If an application is adjourned to a date to be decided, a party may ask that it be relisted for a particular day, but the registrar is not bound by the request.
(3)If a party asks that an adjourned application be relisted and the estimate of the duration of the hearing of the application has changed and the revised estimate was not given to the judge or magistrate on the adjournment being granted, the party must give the registrar a revised estimate.
(4)The party who asked the registrar to relist an adjourned application must give all other parties reasonable written notice of the new date of hearing assigned by the registrar.
(5)If all parties consent to an adjournment, the file may be marked with a note to that effect.
(6)If all parties agree a date for an adjourned application, the registrar may relist the application for the agreed date or the first available date after the agreed date.

Part 2 Setting trial dates

465Application of pt 2

This part applies to proceedings for which a trial date has not been set.

466Setting trial dates

A date for the trial of a proceeding may be set—
(a)at a call-over; or
(b)by a judge or magistrate; or
(c)by a registrar.

r 466 amd 2001 SL No. 107 s 13

sub 2010 SL No. 129 s 8

467Request for trial date

(1)A party who is ready for trial may prepare and sign a request for trial date in the approved form.
(2)The party who prepared the request for trial date must serve copies of the request on each other party and, if the party served is ready for trial, that party must sign the request and return it to the party who prepared it.
(3)The party who prepared the request for trial date must file as soon as practicable a copy of the request signed by all parties, other than a party whose signature has been dispensed with by the court.
(4)For this rule, a party is ready for trial if—
(a)any order or requirement by notice under chapter 7, part 2 for the making of disclosure by or to the party or for the inspection of documents by or to the party has been complied with; and
(b)any order requiring particulars to be given by or to the party has been complied with; and
(c)any interrogatories delivered by or to the party have been answered under chapter 7, part 2, division 2; and
(d)as far as the party is concerned, all necessary steps in the proceeding (including steps to obtain disclosure or inspection of documents, admissions, particulars and answers to interrogatories) are complete; and
(e)all the party’s necessary witnesses will be available for the trial; and
(f)as far as the party is concerned, the proceeding is in all respects ready for trial; and
(g)if in the proceeding there is a claim for damages for personal injury or death—chapter 14, part 2 has been complied with.

r 467 sub 2010 SL No. 129 s 9

amd 2018 SL No. 127 s 55

468Trial expedited

(1)The court may expedite the trial of a proceeding.
(2)To expedite the trial of a proceeding, the court may do all or any of the following—
(a)order the proceeding to be given priority in the allocation of a trial date, including by certifying for speedy trial;
(b)make an order about any of the following—
(i)setting a trial date;
(ii)subject to these rules, specifying the mode of trial;
(c)give a direction the court could give under chapter 10, part 1.

469Dispensing with signature on request for trial date

On the application of a party who has signed a request for trial date, the court may dispense with the signature of another party who has been served with the request under rule 467(2) and has not signed and returned it within 21 days after service.

r 469 amd 2000 SL No. 127 s 36

sub 2010 SL No. 129 s 10

470Leave required for steps after request for trial date

After the filing of the request for trial date, a party may do the following only with the court’s leave—
(a)amend a pleading;
(b)request particulars;
(c)make an application in the proceeding.

r 470 amd 2001 SL No. 281 s 12

Part 3 Trial

Division 1 Mode of trial

471Application of pt 3

This part only applies to proceedings started by claim.

472Jury

Unless trial by jury is excluded by an Act, a plaintiff in the statement of claim or a defendant in the defence may elect a trial by jury.

473Third party proceeding

(1)A third party proceeding may be tried in the same way as the proceeding between the plaintiff and the defendant.
(2)However, if the court directs a third party proceeding be decided separately, the court may, on an application by the defendant or third party, order the third party proceeding to be tried by a jury.

474[Repealed]

r 474 om 2012 SL No. 150 s 41

475Changing mode of trial

(1)The court may order a trial by jury on an application made before the trial date is set by a party who was entitled to elect for a trial by jury but who did not so elect.
(2)If it appears to the court that an issue of fact could more appropriately be tried by a jury, the court may order a trial by jury.

Division 2 Proceedings at trial

476Default of attendance

(1)If a defendant does not appear when the trial starts, the plaintiff may call evidence to establish an entitlement to judgment against the defendant, in the way the court directs.
(2)If the plaintiff does not appear when the trial starts, the defendant is entitled to dismissal of the plaintiff’s claim and the defendant may call evidence necessary to establish an entitlement to judgment under a counterclaim against the plaintiff, in the way the court directs.
(3)Despite subrule (2), the defendant may submit to judgment if the plaintiff does not appear when the trial starts.
(4)The court may set aside or vary any judgment or order obtained because of subrule (1) on terms the court considers appropriate.

477Adjournment

The court may at or before a trial adjourn the trial.

Division 3 View

478View by court

The court may inspect a place, process or thing, and witness any demonstration about which a question arises in the proceeding.

Note—

See also the Jury Act 1995, section 52 (Inspections and views) for views by juries.

r 478 amd 2009 SL No. 162 s 2 sch

Part 4 Decision without pleadings

479Application of pt 4

This part applies to—
(a)a proceeding started by claim; and
(b)another proceeding in which a pleading, or a document permitted to be used as a pleading, has been filed.

480No pleadings

(1)If the court considers a proceeding can be decided without pleadings, or without pleadings after the statement of claim, the court may, on the application of a party, order the proceeding to be decided in this way.
(2)If the court makes an order under subrule (1), the court may direct the parties to prepare a statement of facts and issues or, if the parties do not agree on a statement of facts and issues, the court may settle the statement itself.

481Directions

If the court makes an order under rule 480, it may give a direction it is authorised to give under chapter 10, part 1.

Part 5 Separate decision on questions

482Definition for pt 5

In this part—
question includes a question or issue in a proceeding, whether of fact or law or partly of fact and partly of law, and whether raised by pleadings, agreement of parties or otherwise.

483Order for decision and statement of case for opinion

(1)The court may make an order for the decision by the court of a question separately from another question, whether before, at, or after the trial or continuation of the trial of the proceeding.
(2)The Supreme Court, other than the Court of Appeal, may also state a case for the opinion of the Court of Appeal.

Note—

See chapter 18 (Appellate proceedings), part 2 (Applications and cases stated to Court of Appeal), division 2 (Cases stated).

For Magistrates Courts, see the Magistrates Courts Act 1921, section 46 (Special case stated) and the District Court of Queensland Act 1967, section 112 (No appeal lies from Magistrates Court to Supreme Court).

r 483 amd 2009 SL No. 162 s 2 sch

484Orders, directions on decision

If a question is decided under this part, the court may, subject to rule 475, make the order, grant the relief and give the directions that the nature of the case requires.

485Disposal of proceedings

The court may, in relation to a decision of a question under this part, as the nature of the case requires—
(a)dismiss the proceeding or the whole or part of a claim for relief in the proceeding; or
(b)give judgment, including a declaratory judgment; or
(c)make another order.

486Form and content of separate question

A separate question or questions must—
(a)set out the question or questions to be decided; and
(b)be divided into paragraphs numbered consecutively.

Part 6 Decision on papers without oral hearing

487Definition for pt 6

In this part—
decision without an oral hearing means a decision made under this part by the court on written material and submissions without the parties attending.

488Application of pt 6

This part does not apply to a type of application exempted from this part by a practice direction.

Note—

See the Supreme Court of Queensland Act 1991, section 17 and the District Court of Queensland Act 1967, section 125.

r 488 amd 2000 SL No. 127 s 37; 2009 SL No. 162 s 2 sch; 2012 SL No. 150 s 42; 2013 SL No. 289 s 11

489Proposal for decision without oral hearing

(1)A party making an application, including an application in a proceeding, may propose in the application that it be decided without an oral hearing.
(2)If the applicant proposes the application be decided without an oral hearing, the court must decide the application without an oral hearing unless—
(a)under rule 491, the court considers it inappropriate to do so; or
(b)under rule 494, the respondent requires an oral hearing; or
(c)under rule 495, the applicant abandons the request for a decision without an oral hearing; or
(d)the Chief Justice or Chief Judge suspends the operation of this rule by direction.

490Procedure for making application

(1)If the applicant proposes an application be decided without an oral hearing, the application must—
(a)include a notice in the approved form; and
(b)be accompanied by a draft order and written submission in support.
(2)The registrar must set a date for deciding the application which is at least 10 days after the application is expected to be served on the respondent.
(3)If the application is made without notice to a party—
(a)subrule (2) and rules 492 to 495 do not apply; and
(b)the registrar must set as the date for deciding the application the first date convenient to the court.
(4)If the parties resolve all or part of the application before the date for deciding the application, each party must give the court written notice of the extent to which the application is resolved and the orders the parties have agreed to seek.

r 490 amd 2000 SL No. 127 s 38

491Court may decide that decision without an oral hearing is inappropriate

(1)The court may decide at any time that an application is inappropriate for decision without an oral hearing.
(2)If the court decides this before the date set for deciding the application, the court—
(a)must immediately notify the parties to the application of the decision by telephone or in some other way; and
(b)may set a date for hearing.

r 491 amd 2000 SL No. 127 s 39

492Respondent’s response

(1)If the respondent wishes to present a written submission or evidence, other than oral evidence, the respondent must file and serve on the applicant a response with all relevant accompanying material at least 3 business days before the date set for deciding the application.
(2)If the respondent has not already filed a document that includes the information required by rule 17, the response must include that information.
(3)Also, if the respondent does not serve a response or a notice under rule 494 and there is not otherwise material before the court to acknowledge or establish service, the applicant must, before the date fixed for deciding the application, file an affidavit of service of the application.

r 492 amd 2000 SL No. 127 s 40

493Applicant’s reply

Unless the applicant files a notice under rule 495(2), the applicant must file and serve a reply to the response at least 1 business day before the date for deciding the application.

r 493 amd 2000 SL No. 127 s 41

494Respondent’s right to require oral hearing

(1)This rule applies if the respondent requires an oral hearing.
(2)The respondent must, within 3 business days after being served with the application—
(a)file a notice in the approved form; and
(b)serve a copy of the notice on the applicant.
(3)After filing and serving the notice, the respondent must file and serve material in response to the application at least 3 business days before the date for deciding the application.
(4)The applicant may—
(a)attend the hearing and advance oral argument; or
(b)rely on the supporting material and not attend.
(5)The application is to be heard on a date set by the registrar.

495Applicant’s right to abandon request for decision without an oral hearing

(1)On receiving material from the respondent, the applicant may require an oral hearing.
(2)If the applicant requires an oral hearing, the applicant must, within 2 business days after receiving the respondent’s material—
(a)file a notice in the approved form; and
(b)serve a copy of the notice on the respondent.

496Concise written submissions

A written submission for a decision without an oral hearing must be concise.

497Further information

(1)The court may obtain further information, including evidence, about the application by telephone (including conference telephone), fax, email or in another way.
(2)If the court decides to obtain further information, the court—
(a)must inform all parties to the application of the substance of the inquiry; and
(b)give all parties to the application an opportunity to be heard.

r 497 amd 2000 SL No. 127 s 42

498Order

If the court makes an order without an oral hearing, the registrar must send each party to the application a copy of the order by post, fax or email together with a copy of the court’s reasons.

r 498 amd 2000 SL No. 127 s 43

Part 7 Assessors and special referees

499Application of pt 7

This part does not apply to Magistrates Courts.

500Assessors

(1)The court may sit with 1 or more assessors if the trial is not a trial by jury.
(2)A trial with assessors may be conducted as the court directs.
(3)Assessors may be chosen as the court directs.

501Special referee

(1)The court may in a proceeding, except a trial by jury, refer a question of fact to a special referee—
(a)to decide the question; or
(b)to give a written opinion on the question to the court.
(2)If an order is made under subrule (1), the court may direct the special referee to make a report in writing to the court on the question referred to the special referee stating with reasons the referee’s decision or opinion.

502Procedure before special referee

(1)The court may order a special referee to hold a trial or to make an inquiry to enable the special referee to decide the question or to give the opinion.
(2)The court may, either in the reference or from time to time, give directions as to the conduct of the trial or inquiry.
(3)Unless the court otherwise orders, a trial before a special referee must be conducted as nearly as possible in the same way as a trial before a judge sitting alone.
(4)A special referee has the same authority as a judge, but may not deal with a person for contempt.

503Submission of question to court

(1)A special referee may submit for the decision of the court a question that arises in the course of a trial or inquiry before the special referee.
(2)The special referee must comply with the decision of the court given on the question.

504Report of special referee

On receipt of a special referee’s report, the court—
(a)must supply a copy of the report to the parties; or
(b)may order the special referee to provide a further report or provide an explanation; or
(c)may remit the whole or part of the question originally referred for further consideration in accordance with the court’s directions.

505Use of opinion, decision or findings

(1)The court may—
(a)accept or reject all or part of a special referee’s opinion, decision or findings in a report; and
(b)make an order or give judgment in the proceeding on the basis of the opinion, decision or findings in the report as it considers appropriate.
(2)An application by a party for an order or judgment under subrule (1) must be made on 7 days notice to the other parties.

506Remuneration of special referee and assessor

(1)The court may decide, either in the first instance or finally—
(a)the remuneration of a special referee or assessor; and
(b)by which party or parties, and in what proportion, the remuneration is to be paid.
(2)The court may—
(a)order a party to give security for the remuneration of a special referee or assessor; and
(b)order a stay of the proceeding until the security is given.

Part 8 Assessment of damages

507Conditional order

(1)This rule applies if judgment is obtained for damages to be assessed.
(2)The order must state which court is to conduct the assessment.
(3)The court may decide that the assessment is to be conducted by that court or by—
(a)for a proceeding in the Supreme Court—the District Court; or
(b)for a proceeding in the Supreme Court or the District Court—a Magistrates Court; or
(c)the court constituted by a registrar or judicial registrar.
(4)A nomination under chapter 9, part 1 for a court that could be selected under subrule (3) is sufficient compliance with subrule (2).
(5)The court conducting the assessment may assess an amount of damages that would otherwise exceed the limits of the court’s jurisdiction.
(6)This rule is subject to rule 508.

508Defendant’s default or summary decision

(1)This rule applies if—
(a)a judgment (including a default judgment) is given for damages (including the value of goods) to be assessed—
(i)because of a defendant’s default mentioned in chapter 9, part 1 (other than under rule 283); or
(ii)under chapter 9, part 2; and
(b)the proceeding is carried on in relation to a claim for relief not decided by the judgment.
(2)The court must assess the damages at the trial of the other claim for relief, unless the court orders otherwise.

509Assessment

(1)Unless the court directs otherwise, an assessment of damages must be conducted as nearly as possible in the same way as a trial.
(2)The hearing date for assessment must be fixed under part 2.
(3)When the hearing date is fixed, the plaintiff must serve notice of the hearing date on the defendant.
(4)However, if judgment is obtained in a Magistrates Court under chapter 9, part 1, subrule (3) does not apply and the registrar may proceed immediately to assess damages or refer the assessment of damages to a court constituted by a magistrate, without notice to the party against whom the judgment was obtained.

510Directions

The court that will conduct an assessment may give directions about the conduct of the assessment and the procedures to be followed before the assessment takes place, including disclosure and the use of pleadings or another direction that could be given under chapter 10, part 1.

511Certificate of damages

(1)The registrar of the court conducting an assessment must certify the amount at which damages were assessed.
(2)The certificate must be filed in the court that gave the judgment for assessment of damages and a copy must be made available to the parties.
(3)On the filing of the certificate, the registrar of the court that gave the judgment must give a judgment or make an order, for the amount assessed.

512Damages to time of assessment

(1)This rule applies if damages, including interest, may be assessed and—
(a)continuing damages are likely to happen; or
(b)there are—
(i)repeated breaches of recurring obligations; or
(ii)intermittent breaches of a continuing obligation.
(2)The damages are assessed for the period to the time of assessment, including damages for breaches occurring after the proceeding began.

Part 9 Magistrates Courts

Division 1 Application

513Application of pt 9

This part applies only to Magistrates Courts.

Division 2 Simplified procedures

div hdg sub 2009 SL No. 265 s 75

514Application of simplified procedures

(1)The simplified procedures apply to minor claims.
(2)Also, if the parties to a claim that is not a minor claim—
(a)agree in writing to all or part of the simplified procedures applying to the claim; and
(b)file the agreement;

the simplified procedures apply to the claim to the extent agreed.

(3)However, subrule (2) does not apply to a claim for a debt or liquidated demand mentioned in the QCAT Act, schedule 3, definition minor civil dispute, paragraph 1(a).

r 514 amd 2009 SL No. 162 s 2 sch

sub 2009 SL No. 265 s 75

515Simplified procedures

(1)The following procedures are the simplified procedures
(a)except to the extent necessary to comply with chapter 14, part 2, a party is not required to disclose to another party a document in the possession or under the control of the party and directly relevant to an allegation in issue in a proceeding, unless the court otherwise orders;
(b)all parties must have all relevant documents available at the hearing;
(c)if ordered by the court, or agreed in writing by the parties, a party must not appear by—
(i)a lawyer; or
(ii)a person who has a legal qualification under the laws of this or another State; or
(iii)a person who is of the nature of a professional advocate;

Note—

See also the Magistrates Courts Act 1921, section 18.
(d)the court—
(i)is not bound by laws of evidence or procedure applying to a proceeding in the court; and
(ii)may inform itself of the facts in any way it considers appropriate; and
(iii)must observe the rules of natural justice; and
(iv)must record the reasons for its decision.
(2)Before making an order mentioned in subrule (1)(c), the court must consider the following matters—
(a)the difficulty of any question of law or fact raised or likely to be raised in the proceeding;
(b)any prejudice likely to be caused to a party by the presence or absence of the representative;
(c)whether, under a contract of insurance, a party’s rights in relation to the claim have been subrogated to an insurer;
(d)whether the order is fair and equitable to the parties.
(3)An agreement mentioned in subrule (1)(c) must be filed.

r 515 amd 2009 SL No. 162 s 2 sch

sub 2009 SL No. 265 s 75

516Hearing and deciding claim

(1)The court must hear and decide a relevant claim in accordance with the applied procedures, unless the court considers deciding the claim under the applied procedures would be an abuse of process.
(2)In deciding a minor claim, the court—
(a)must make the orders it considers fair and equitable to the parties to the proceeding; but
(b)may, if the court considers it appropriate, dismiss the claim.

Note—

The Magistrates Courts Act 1921, section 45A provides that if the parties agree in writing, no appeal lies from a judgment in a proceeding dealt with under the simplified procedures.
(3)Nothing in this division prevents the court—
(a)attempting to settle a relevant claim; or
(b)continuing to hear and decide a relevant claim that can not be settled by mediation or otherwise; or
(c)making orders to give effect to an agreement reached by mediation or otherwise.
(4)In this rule—
applied procedures, for a relevant claim, means the simplified procedures applying to the claim under rule 514.
relevant claim means a minor claim, or another claim to which all or part of the simplified procedures apply.

r 516 sub 2000 SL No. 127 s 44; 2006 SL No. 194 s 6; 2009 SL No. 265 s 75

517[Repealed]

r 517 om 2009 SL No. 265 s 75

518[Repealed]

r 518 amd 2000 SL No. 127 s 45

om 2009 SL No. 265 s 75

519[Repealed]

r 519 amd 2000 SL No. 127 s 46

om 2009 SL No. 265 s 75

520[Repealed]

r 520 om 2009 SL No. 265 s 75

521[Repealed]

r 521 om 2009 SL No. 265 s 75

522[Repealed]

r 522 om 2009 SL No. 265 s 75

Division 2A Employment claims

div hdg ins 2007 SL No. 315 s 5

Subdivision 1 Introduction

sdiv 1 (rr 522A–522B) ins 2007 SL No. 315 s 5

522AApplication of div 2A

This division applies to employment claims.

sdiv 1 (rr 522A–522B) ins 2007 SL No. 315 s 5

522BDefinitions for div 2A

In this division—
conciliation certificate see rule 522E.
employment claim see section 42B of the Act.
registrar means a registrar of a Magistrates Court, and includes a deputy registrar of the court or person other than the registrar who discharges the duties and performs the functions conferred on the registrar under these rules.
the Act means the Magistrates Courts Act 1921.

sdiv 1 (rr 522A–522B) ins 2007 SL No. 315 s 5

Subdivision 2 Filing employment claims

sdiv 2 (r 522C) ins 2007 SL No. 315 s 5

522CFiling employment claim

(1)The plaintiff must file and serve an employment claim in the approved form.
(2)To remove any doubt, it is declared that chapter 2, part 3 applies to an employment claim.

sdiv 2 (r 522C) ins 2007 SL No. 315 s 5

Subdivision 3 Conciliation of employment claims

sdiv 3 (rr 522D–522G) ins 2007 SL No. 315 s 5

522DSuspension of conciliation process if application to court

If a party applies to the court under section 42C of the Act for the court’s decision whether the claim made in the proceeding is or is not an employment claim, the conciliation process is suspended for the period starting on the day the application is filed and ending on the day the court’s decision is made.

sdiv 3 (rr 522D–522G) ins 2007 SL No. 315 s 5

522EConciliation certificate

(1)For section 42L of the Act, a certificate about the conciliation process (a conciliation certificate) must be in the approved form.
(2)The conciliation certificate—
(a)must not contain comment about the extent to which a party participated or refused to participate in the conciliation; and
(b)may state that a party did not attend the conciliation.
(3)The conciliator must give a copy of the conciliation certificate to the parties.

sdiv 3 (rr 522D–522G) ins 2007 SL No. 315 s 5

522FRecord of conciliation agreement

(1)Unless the parties otherwise agree, the conciliator must ensure that an agreement reached in the conciliation process is—
(a)placed in a sealed container, for example, an envelope; and
(b)marked with the court file number; and
(c)marked ‘Not to be opened without an order of the court’; and
(d)given to the registrar.
(2)The container may be opened only if the court orders it to be opened.

sdiv 3 (rr 522D–522G) ins 2007 SL No. 315 s 5

522GAbandonment of conciliation

(1)The conciliator may abandon the conciliation if the conciliator considers further efforts at conciliation will not lead to the resolution of the dispute or an issue in the dispute.
(2)Before abandoning the conciliation, the conciliator must—
(a)inform the parties of the conciliator’s intention; and
(b)give them an opportunity to reconsider their positions.

sdiv 3 (rr 522D–522G) ins 2007 SL No. 315 s 5

Subdivision 4 Hearing of employment claims

sdiv hdg ins 2007 SL No. 315 s 5

522HNotice of intention to defend employment claim

(1)Despite rule 135, a defendant to an employment claim may take the following steps without first filing a notice of intention to defend—
(a)apply to the court under section 42C of the Act for the court’s decision whether the claim is or is not an employment claim;
(b)participate in a conciliation process;
(c)apply to a court under section 42N of the Act for an order giving effect to an agreement reached in a conciliation process.
(2)An application made under subrule (1)(a) or (c) must contain an address for service.
(3)Despite rule 137, a notice of intention to defend an employment claim must be filed within 28 days after a conciliation certificate is filed, if the claim has not been entirely resolved during the conciliation process.
(4)A notice of intention to defend an employment claim and the defence—
(a)must be in the approved form; and
(b)must include—
(i)a response answering the plaintiff’s assertions in the employment claim and stating any amount the defendant admits owing the plaintiff; and
(ii)how any amount owing is worked out; and
(iii)why the defendant owes the amount.
(5)To remove any doubt, it is declared that, subject to this rule, chapter 5 applies to a proceeding started by an employment claim.

r 522H ins 2007 SL No. 315 s 5

amd 2009 SL No. 162 s 2 sch

522IEnding employment claim proceedings early

Despite rule 281, chapter 9, part 1, division 2 applies if—
(a)a defendant in a proceeding started by an employment claim has not filed a notice of intention to defend; and
(b)the time allowed under subrule 522H(3) to file the notice has ended.

r 522I ins 2007 SL No. 315 s 5

522JSetting hearing date for employment claim

The registrar must, as soon as practicable after a notice of intention to defend an employment claim is filed—
(a)set a date for the hearing of the proceeding; and
(b)notify the parties of the time, date and place of the hearing.

r 522J ins 2007 SL No. 315 s 5

522KProcedure for hearing of employment claim

(1)The parties must have all relevant documents available at the hearing of an employment claim.
(2)The court—
(a)may order a party to disclose a document that—
(i)is in the possession or under the control of the party; and
(ii)is directly relevant to an allegation in issue in the proceeding; and
(b)may hear the claim in private; and
(c)must make a record of the evidence given; and
(d)must record the reasons for its decision and give a copy of the reasons to the parties.

r 522K ins 2007 SL No. 315 s 5

522LNo cross claim in proceeding for employment claim

(1)In a proceeding for an employment claim, the defendant may not rely on a cross claim by way of set-off or counterclaim in response to the claim.
(2)However, the court may, if a defendant has brought a proceeding for a claim against a plaintiff for a matter that, apart from subrule (1) may have been the subject of a cross claim, order that the enforcement of any judgment in the first proceeding be stayed for the time and on the conditions the court considers appropriate.

r 522L ins 2007 SL No. 315 s 5

522MFailure to appear in an employment claim

(1)If neither party appears at the hearing of an employment claim, the court may dismiss the proceeding.
(2)If the plaintiff does not appear at the hearing but the defendant does, the court may—
(a)if the defendant admits part of the claim—give judgment for the plaintiff for the part of the claim the defendant admits; or
(b)if the defendant does not admit any part of the claim—dismiss the proceeding.
(3)If the plaintiff appears at the hearing but the defendant does not, the court may give the judgment or make the order the court considers just without requiring the plaintiff to give any evidence of the plaintiff’s claim, unless it considers the giving of evidence desirable.
(4)For this rule, a party is taken to have appeared at the hearing if the party—
(a)files in the court before the date of the hearing an affidavit of the facts in issue with a copy of the documents the party considers relevant to the facts in issue as exhibits to the affidavit; and
(b)sends to the other party a copy of the affidavit.
(5)If the court is satisfied, on application made to it within a reasonable time after a judgment given in the absence of a party came to the notice of the absent party, there was sufficient reason for the party’s absence, the court may set aside the judgment and its enforcement.
(6)The court must rehear a proceeding set aside under subrule (5) then or at a later time set by the court.
(7)At any time during the hearing, the court may give the directions for the conduct of the proceeding it considers appropriate and necessary to enable justice to be done between the parties.

r 522M ins 2007 SL No. 315 s 5

Subdivision 5 Miscellaneous

sdiv hdg ins 2007 SL No. 315 s 5

522NParticular rules do not apply to employment claims

The following provisions do not apply to an employment claim—
(a)chapter 6;
(b)chapter 7, part 2;
(c)chapter 9, parts 2 and 4;
(d)chapter 13, parts 2 to 6.

r 522N ins 2007 SL No. 315 s 5

amd 2018 SL No. 127 s 56

Division 3 Settlement conferences

div hdg sub 2013 SL No. 289 s 12

523Court may require settlement conference

(1)At any time after a notice of intention to defend and defence is filed in a proceeding started by claim, the court may direct that a conference (settlement conference) be held.
(2)A settlement conference may consider the following matters—
(a)the possibility of settling the proceeding at the settlement conference without a hearing or by referring it to mediation;
(b)the simplification of the issues;
(c)the use of the simplified procedures;
(d)the possibility of obtaining admissions that may facilitate the hearing or reduce costs;
(e)for proceedings other than minor debt claims—the necessity or desirability of further pleadings or amendments to the existing pleadings;
(f)the amount of damages;
(g)the possible length of any trial;
(h)the burden of costs a party may have to bear;
(i)anything else that may help dispose of the proceeding.
(3)The court may direct that—
(a)the settlement conference be held at the date, time and place stated in the direction; and
(b)all parties attend personally with their counsel or solicitor or, for a corporation, a person with authority to compromise the claim for the corporation.
(4)However, if, in the court’s opinion, personal attendance with counsel or solicitor would cause unreasonable hardship, inconvenience or excessive cost to a party, the court must not direct the personal appearance of a party with counsel or solicitor.
(5)If the court acts on its own initiative, the court must give the parties at least 2 business days notice of the date, time and place of the settlement conference.
(6)At a settlement conference, each party must—
(a)be sufficiently aware of the party’s case so as to be able to answer any question that may be asked about the claim or defence; and
(b)be in a position to make and respond properly to an offer of settlement.
(7)Also, each party’s counsel or solicitor must—
(a)be sufficiently aware of his or her client’s case so as to be able to answer any question that may be asked about the claim or defence; and
(b)be in a position to make and respond properly to an offer of settlement.
(8)The court may adjourn a proceeding listed for hearing so a settlement conference may be held.

r 523 amd 2013 SL No. 289 s 13

524Holding settlement conference

(1)The court must hold a settlement conference in private and for the purpose may be constituted by a magistrate or registrar.
(2)The court may—
(a)adjourn the settlement conference; or
(b)direct that a further settlement conference be held before the court as constituted or before the court constituted by someone else mentioned in subrule (1); or
(c)make the suggestions the court considers appropriate to help in promptly disposing of the proceeding; or
(d)make any orders necessary to give effect to a memorandum signed by parties under this rule; or
(e)give a party the directions the court considers appropriate.
(3)The court must record on the file any formal orders made by the court at a settlement conference, but must not keep a record of anything discussed at the conference.
(4)At a settlement conference, any 2 or more parties or their counsel or solicitor may sign a memorandum of the results of the conference including any admissions made by the parties.
(5)The memorandum must be attached to the file in the way the court directs at the settlement conference.

Note—

See also the Civil Proceedings Act 2011, section 35.
(6)Unless the court otherwise orders, the costs of a settlement conference are costs in the proceeding and may be assessed by the court constituted for the conference, the court hearing the proceeding, or assessed under these rules.

Note—

The Civil Proceedings Act 2011, section 36, protects the confidentiality of things said and done, and documents tendered at a settlement conference unless all the parties agree or the evidence is a resolution agreement.

r 524 amd 2009 SL No. 162 s 2 sch; 2012 SL No. 150 s 43; 2013 SL No. 289 s 14

525Failure to attend settlement conference

(1)This rule applies if a person directed to attend a settlement conference fails to attend the conference.
(2)If the court is satisfied by affidavit that the person who failed to attend was given notice of the date, time and place of the settlement conference, the court may—
(a)if the party failing to attend is the plaintiff or the plaintiff’s counsel or solicitor—stay or dismiss the proceeding; or
(b)if—
(i)the party failing to attend is a defendant or the defendant’s counsel or solicitor; and
(ii)the claim discloses a sufficient cause of action;

make the orders or give the judgment the court considers just; or

(c)make the order for costs the court considers appropriate, whether or not the court makes an order under paragraph (a) or (b) or gives judgment under paragraph (b).
(3)Also, the court may give the directions for listing the proceeding for hearing or for holding another settlement conference the court considers appropriate in the circumstances.
(4)If the court makes an order or gives judgment under subrule (2), the court may, on application made within the time the court considers reasonable, set aside the order and order a new trial.

r 525 amd 2013 SL No. 289 s 15

526General directions about settlement conferences

Nothing in this division prevents a magistrate giving to a registrar the general or special directions the magistrate considers appropriate for arranging and conducting settlement conferences.

r 526 amd 2013 SL No. 289 s 16

Chapter 14 Particular proceedings

Part 1 Account

527Order for account

(1)If an account is claimed in the first instance or if a claim involves taking an account, the court may at any stage order an account to be taken.
(2)A judgment or an order directing an account to be taken must specify—
(a)the transaction or series of transactions of which the account is to be taken; and
(b)the basis of the account; and
(c)the period of the account.

528Directions

(1)If the court directs an account to be taken, it may, by the judgment or the order directing an account or a later order, give directions about taking or verifying the account, including but not limited to directions about the following matters—
(a)the advertisements to be published, the evidence to be adduced, the procedure to be followed, and the time and place for taking the account;
(b)whether in taking the account the books and records of account are evidence of the matters contained in them;
(c)the persons (whether or not parties to the proceeding) to be served with the judgment or order and who are entitled to be heard on the taking of the account;
(d)the persons to be called as witnesses at the taking of the account;
(e)whether a judgment should be given for a balance found to be owing.
(2)If the court directs that the books and records of account are evidence of the matters contained in them, the parties have leave to take objections.

529Service of judgment

(1)A judgment or other order for an account to be served on a person who was not a party to the proceeding must be served personally.
(2)The account may not be taken until all necessary persons have been served with the judgment or order for an account unless the court otherwise orders.
(3)If the court dispenses with service, the court may also order that the persons as to whom service is dispensed with are bound by the judgment or order for an account, except if it was obtained by fraud or nondisclosure of material facts.

530Form and verification

(1)Unless the court orders otherwise, all items in an account must be numbered consecutively.
(2)The party required to account (the accounting party) must, unless the court orders otherwise, verify the account by an affidavit and the account must be made an exhibit to the affidavit.
(3)An alteration in an account verified by affidavit may not be made by erasure and the alteration must be marked by the initials of the person who took the affidavit.
(4)On the taking of an account, all payments over $250 must be verified by receipts, unless the court orders otherwise.
(5)The court may order that the documents relating to an account be produced for inspection by another party at the office of the accounting party’s solicitor and that only the contested items be brought before the court or person taking the account.

r 530 amd 2000 SL No. 127 s 47

531Filing and service

Unless the court orders otherwise, the accounting party must—
(a)file the account and affidavit; and
(b)serve copies as soon as practicable after they are filed on all other persons entitled to be heard at the taking of the account.

532Challenging account

A person who challenges the accuracy of an account must specify the errors or omissions alleged and serve a statement containing brief details of the errors or omissions on the accounting party.

533Witness

A witness on the taking of an account or the deponent of an affidavit read at the taking of an account may be examined or cross-examined on oath.

534Allowances

In taking an account directed by a judgment or order, all just allowances for the expenses and claims of the accounting party may be made without a direction for the purpose.

535Delay

If there is delay in prosecuting an account, the court may make orders for staying or expediting the proceeding, or for the conduct of the proceeding.

r 535 amd 2002 SL No. 223 s 32

536Before whom account taken

An account must be taken before the registrar unless the court directs it to be taken before a special referee or the court itself takes the account.

537Powers exercisable on taking account

(1)On the taking of an account, advertisements may be published, witnesses subpoenaed, oaths administered, the production of documents and records ordered and oral examinations conducted.
(2)An order under subrule (1) may be made by the court or person taking the account.

538Class interests

(1)If it appears to the court that the interests of the persons who are entitled to attend the taking of the account can be classified, the court may order each class to be represented by one solicitor and counsel.
(2)Despite an order under subrule (1), a person who objects to being represented as a member of a class—
(a)may be separately represented; and
(b)if separately represented, is not entitled to an order for costs and may be ordered to pay additional costs incurred by another person because of the separate representation.
(3)The court may order separate representation for members of a class who are represented by one solicitor and counsel.

539Reference to court

(1)If an account is taken by the registrar or a special referee, the registrar or special referee must, if asked by a person interested in the account, or on his or her own initiative may, refer to the court a question arising and the account must be taken in accordance with a direction the court gives on the reference.
(2)A direction given by the court under subrule (1) may be varied at any time until a certificate is filed embodying the results of the account.

540Certificate as to account

(1)The result of the taking of an account must be stated in a certificate that must be filed immediately after it is settled.
(2)A person who is interested in the account may apply to the court for it to be set aside or varied within 7 days after the day the certificate was filed.
(3)If a person applies for a certificate to be set aside or varied—
(a)the items objected to must be specified and the grounds of the objection must be concisely stated; and
(b)the application must be decided on the same evidence as was presented at the taking of the account, unless the court gives leave for further evidence to be presented.
(4)A certificate becomes final and is binding on the parties at the end of 7 days after the day it is filed unless a person applies under subrule (2) for the certificate to be set aside or varied.
(5)In special circumstances the court may set aside or vary a certificate after it has become final and binding.
(6)The certificate may not set out the judgment or order, the documents, evidence or reasons, but it must refer to the judgment or order or the documents or evidence so the basis of the result of the account is stated in the certificate.
(7)The certificate must specify the items allowed and disallowed.
(8)The party who is responsible for the prosecution of the judgment or order must prepare a draft certificate for settling by the court or the person who took the account on at least 7 days notice to all persons who appeared at the taking of the account.

541Further consideration

If a proceeding is adjourned for an account to be taken, it may be set down for further hearing within 7 days after the certificate becomes final and binding.

542Procedure for inquiries

Rules 527 to 541 apply, with necessary changes, to the making of an inquiry.

543Directions

The court may, if it orders the making of an inquiry, by the same or later order, give a direction or make an order about the making of the inquiry it considers appropriate.

Part 2 Personal injury and fatal accidents

544Definition for pt 2

In this part—
defendant includes a defendant by election.

r 544 amd 2009 SL No. 162 s 2 sch

545Application of pt 2

(1)This part applies to a proceeding for damages for personal injury or death.
(2)This part is subject to chapter 13, part 2.

546Waiving compliance

A party may, by written notice, waive further compliance with this part.

547Plaintiff’s statement of loss and damage

(1)The plaintiff must serve on the defendant a written statement of loss and damage, signed by the plaintiff, within 28 days after the close of pleadings.
(2)The statement must be served before a request for trial date is filed.
(3)The statement must have the following information—
(a)details of any amount claimed for out of pocket expenses and documents in the possession or under the control of the plaintiff about the expenses;
(b)if there is a claim for economic loss—
(i)the name and address of each of the plaintiff’s employers, the period of employment by each employer, the capacity in which the plaintiff was employed by each employer and the plaintiff’s net earnings for each period of employment—
(A)in the 3 years immediately before the injury; and
(B)since the injury; and
(ii)if the plaintiff is self-employed, details of the plaintiff’s net income—
(A)in the 3 years immediately before the injury; and
(B)since the injury; and
(iii)details of the amount the plaintiff claims (if any) for loss of income to the date of the statement; and
(iv)details of any disability resulting in loss of earning capacity and of the amount the plaintiff claims for future economic loss; and
(v)if the plaintiff is self-employed—additional details substantiating the plaintiff’s claim for economic loss; and
(vi)details of the educational level reached by the plaintiff, including any trade or professional qualifications held;
(c)details of the pain and suffering experienced by the plaintiff and the loss of amenities caused by the injuries (including the physical, social and recreational consequences of the injuries sustained);
(d)details of any other amount sought as damages;
(e)the names and addresses of all hospitals, doctors and experts who have examined the plaintiff or who have given reports on the plaintiff’s injury, loss (including economic loss) or treatment;
(f)the documents in the possession or under the control of the plaintiff about the plaintiff’s injury, loss (including economic loss) or treatment;
(g)details of any accident, injury or illness suffered by the plaintiff—
(i)in the 3 years immediately before the injury; and
(ii)since the injury.

r 547 amd 2000 SL No. 127 s 48; 2001 SL No. 281 s 13

548Plaintiff’s statement must identify particular documents

(1)Without limiting rule 547(3)(f), a plaintiff’s statement of loss and damage must identify the following documents—
(a)hospital and medical reports;
(b)hospital, medical and similar accounts;
(c)documents about the refund of workers’ compensation payments, social security benefits or similar payments;
(d)if there is a claim for economic loss—
(i)documents about the amount of wages paid to the plaintiff—
(A)in the 3 years immediately before the injury; and
(B)since the injury; and
(ii)if the plaintiff is self-employed—documents about the plaintiff’s net income—
(A)in the 3 years immediately before the injury; and
(B)since the injury; and
(iii)documents about the tax paid by the plaintiff and the taxable income of the plaintiff—
(A)in the 3 years immediately before the injury; and
(B)since the injury; and
(iv)documents about the superannuation entitlements of the plaintiff and prospective loss of superannuation entitlements by the plaintiff;
(e)documents about the cost of meeting needs of the plaintiff alleged to have arisen or increased because of the plaintiff’s injury;
(f)documents about any additional expenses to which it is alleged the plaintiff has been or will be put because of the injury;
(g)documents that are or contain a contemporaneous record, account or description of—
(i)the plaintiff’s injury, disability, pain and suffering, loss of amenities or treatment; or
(ii)the consequences of them; or
(iii)the cost resulting from them.
(2)If the defendant asks for a copy of a document identified in the plaintiff’s statement of loss and damage, the plaintiff—
(a)must give the defendant a copy; and
(b)may charge a reasonable amount for giving the copy.
(3)If the plaintiff intends to rely at the trial on evidence of the plaintiff’s injury, loss (including economic loss) or treatment (including future treatment) not in a report that, if it were in a report, would be required to be identified under subrule (1), the plaintiff must, before the request for trial date is filed, serve on the defendant the evidence in the form of a report, or a proof of the evidence.
(4)At the trial, the plaintiff may call or tender evidence not identified in the plaintiff’s statement of loss and damage or not given to the defendant under this part only if—
(a)the evidence is called or tendered by consent; or
(b)the evidence is called or tendered in cross-examination; or
(c)the court for special reason gives leave.

r 548 amd 2001 SL No. 281 s 14

549Plaintiff’s statement must be accurate

(1)The statement of loss and damage must be accurate when served.
(2)If there is a significant change in information given in the statement of loss and damage after it has been served and before a trial date is set, the plaintiff must serve on the defendant a supplement to the statement.
(3)After a trial date is set, the plaintiff must give any further documents mentioned in rule 548(1) to the defendant as soon as practicable, or, if the documents are voluminous, must identify the documents to the defendant and make them available for inspection by the defendant.

550Defendant’s statement of expert and economic evidence

(1)A defendant must serve on the plaintiff a written statement of expert and economic evidence that includes the names and addresses of all hospitals, doctors, and experts who have given the defendant reports on the plaintiff’s injury, loss (including economic loss) or treatment.
(2)The statement must be served within 28 days after the defendant is served with the plaintiff’s statement of loss and damage, but before a request for trial date is filed.

551Defendant’s statement must identify particular documents

(1)Without limiting rule 550, a defendant’s statement must identify the following documents—
(a)hospital and medical reports;
(b)hospital, medical and similar accounts;
(c)documents about the refund of workers’ compensation payments, social security benefits or similar payments;
(d)if there is a claim for economic loss and the defendant was an employer of the plaintiff—
(i)documents about the amount of wages paid to the plaintiff by the defendant in the 3 years immediately before the plaintiff’s injury; and
(ii)documents about the tax paid by the plaintiff and the taxable income of the plaintiff in the 3 years immediately before the plaintiff’s injury; and
(iii)documents about the superannuation entitlements of the plaintiff and prospective loss of superannuation entitlements by the plaintiff;
(e)documents about the cost of meeting needs of the plaintiff alleged to have arisen or increased because of the plaintiff’s injury;
(f)documents about any additional expenses to which it is alleged the plaintiff has been or will be put because of the injury;
(g)if the defendant was an employer of the plaintiff after the plaintiff’s injury—
(i)documents about the amount of wages paid to the plaintiff by the defendant since the injury; and
(ii)documents about the tax paid by the plaintiff and the taxable income of the plaintiff since the injury; and
(iii)documents about the superannuation entitlements of the plaintiff and prospective loss of superannuation entitlements by the plaintiff;
(h)if the employment of the plaintiff by the defendant terminated at the time of or after the plaintiff’s injury, documents relating to the termination of the employment.
(2)If the plaintiff asks for a copy of a document identified in the defendant’s statement of expert and economic evidence, the defendant—
(a)must give the plaintiff a copy; and
(b)may charge a reasonable amount for giving the copy.
(3)If the defendant intends to rely at the trial on evidence of the plaintiff’s injury, loss (including economic loss) or treatment (including future treatment) not in a report that, if it were in a report, would be required to be identified under subrule (1), the defendant must, before the request for trial date is filed, serve on the plaintiff the evidence in the form of a report, or a proof of the evidence.
(4)At the trial, the defendant may call or tender evidence not identified in the defendant’s statement of expert and economic evidence or not given to the plaintiff under this part only if—
(a)the evidence is called or tendered by consent; or
(b)the evidence is called or tendered in cross-examination; or
(c)the court for special reason gives leave.

r 551 amd 2001 SL No. 281 s 15

552Defendant’s statement must be accurate

(1)The statement of expert and economic evidence must be accurate when served.
(2)If there is a significant change in information given in the statement of expert and economic evidence after it has been served and before a trial date is set, the defendant must serve on the plaintiff a supplement to the statement.
(3)After a trial date is set, the defendant must give any further documents mentioned in rule 551(1) to the plaintiff as soon as practicable, or, if the documents are voluminous, must identify the documents to the plaintiff and make them available for inspection by the plaintiff.

553Conference if personal injury damages claim

(1)A party may, after service of a statement of loss and damage, or service of the statement is waived, give to the other parties a written notice specifying a day, time and place for the holding of a conference to discuss, and, if possible, reach agreement on, all matters in dispute in the proceeding.

Note—

See the Civil Proceedings Act 2011, section 36 for the limitations on the admissibility of anything done or said, an admission made, or a document tendered, at a conference.
(2)However, in a proceeding in the Magistrates Court, the conference is in the nature of a settlement conference under rule 523.
(3)If a party who is given the notice unreasonably neglects or refuses to attend a conference, the court may, on the application of a party who, except for the holding of the conference, is ready for trial, do all or any of the following—
(a)make an order about any of the following—
(i)setting a trial date;
(ii)subject to a restriction on the right to a trial by jury, specifying the mode of trial;
(b)give a direction the court could give under chapter 10, part 1;
(c)without prejudice to another power or discretion of the judge or registrar, require the party neglecting or refusing to attend a conference to pay the costs of the application immediately;
(d)make another appropriate order, including, for example, an order sending the case to mediation.
(4)In this rule—
ready for trial see rule 467(4).

r 553 amd 2000 SL No. 127 s 49; 2009 SL No. 162 s 2 sch; 2010 SL No. 129 s 11; 2012 SL No. 150 s 44; 2013 SL No. 289 s 17

554Insurers

(1)An insurer who is defending a proceeding in the name of a defendant is bound by this part.
(2)The insurer must, in relation to documents in the possession or under the control of the insurer, comply with this part as if the insurer were a defendant.
(3)The obligations of the insurer under subrule (1) are additional to, and not in substitution for, the obligations of the defendant under this part.
(4)However, the defendant and the insurer may make a joint statement of expert and economic evidence about documents in their possession or under their control.
(5)The joint statement must state it is made jointly by the defendant and the insurer.
(6)If a joint statement is not made, the defendant and insurer must serve separate statements.

555Privilege

Subject to the express requirements of rules 548 and 551, this part does not require a party to disclose, to any extent greater than required by chapter 7, part 2, a document in relation to which there is a valid claim to privilege from disclosure.

r 555 sub 2001 SL No. 281 s 16

amd 2018 SL No. 127 s 57

556Pleadings

Compliance with this part does not relieve a party of the obligation to amend a pleading if it is necessary to do so to properly plead the party’s case.

557Costs

The court may, in making an order for costs, take into account a party’s failure to comply, or the way a party has complied, with this part.

558Assessment of damages

(1)This rule does not apply to the Magistrates Court.
(2)If—
(a)an order is made or judgment given for the assessment of damages before the plaintiff complies with this part; and
(b)the defendant has an address for service;

the plaintiff must, at least 21 days before the date set for the assessment, serve on the defendant a statement of loss and damage complying in all respects with the requirements of this part.

(3)If the defendant asks for a copy of a document identified in the plaintiff’s statement, the plaintiff—
(a)must give the defendant a copy; and
(b)may charge a reasonable amount for giving the copy.
(4)If the defendant intends to appear on the assessment, the defendant must serve on the plaintiff 7 days before the date set for the assessment a statement of expert and economic evidence complying in all respects with the requirements of this part.
(5)This part, with any changes necessary, applies to an assessment of damages.

Part 3 Moneys in court

pt 3 div 1 hdg om 2011 SL No. 296 s 17

pt 3 div 2 hdg om 2011 SL No. 296 s 18

559[Repealed]

r 559 amd 2009 SL No. 162 s 2 sch

om 2011 SL No. 296 s 17

560Payment or deposit of money in court

(1)This rule applies if a person is required or permitted by an Act, these rules, an order of the court or another law or practice to pay into or deposit money in court.
(2)The person must file an affidavit complying with the Court Funds Regulation 2009.
(3)The affidavit must be served on all other parties and any other interested person as soon as practicable after it is filed.

r 560 amd 2009 SL No. 180 s 44

561Disposal of money in court

(1)An application for payment out of court of money paid into or deposited in court in a proceeding must be served on all other parties.
(2)A person who applies for payment out of court of money paid into or deposited in court in a proceeding must state whether the person is aware of a right or a claim made by another person to all or part of the money.
(3)Unless these rules provide otherwise, money paid into or deposited in court must be dealt with under the Court Funds Act 1973.

562[Repealed]

r 562 amd 2009 SL No. 162 s 2 sch

om 2011 SL No. 296 s 18

563[Repealed]

r 563 om 2011 SL No. 296 s 18

Part 4 Judicial review

564Definitions for pt 4

In this part—
review application means an application started or continued under rule 566 to 569.
the Act means the Judicial Review Act 1991.

565Application of pt 4

This part applies only to the Supreme Court.

566Form of application for statutory order of review

(1)An application for a statutory order of review must be made in the approved form.
(2)If the grounds of the application include an allegation of fraud or bad faith, the applicant must include in the application particulars of the fraud or bad faith on which the applicant relies.

567Form of application for review

(1)An application for review under section 43 of the Act must be made in the approved form.
(2)If the grounds of the application include an allegation of fraud or bad faith, the applicant must include in the application particulars of the fraud or bad faith on which the applicant relies.

568Application for statutory order of review and for review

If—
(a)an application for a statutory order of review under the Act; and
(b)an application for any relief mentioned in section 43 of the Act;

relate to the same matter—

(c)the applications may be made in the one application; and
(d)that application must, with necessary changes, be made in the approved form.

569Relief based on application for review if application made for statutory order of review

If—
(a)an application is made under rule 566 or 568 for a statutory order of review in relation to—
(i)a decision; or
(ii)conduct engaged in, or proposed to be engaged in, for the purpose of making a decision; or
(iii)a failure to make a decision; and
(b)the court considers—
(i)the decision to which the application relates does not fall within the definition decision to which this Act applies in section 4 of the Act; and
(ii)any relief or remedy mentioned in section 43 of the Act may have been granted in relation to the decision, conduct or failure if it had been sought in an application for review at the time of starting the application for a statutory order of review;

the court may, instead of refusing the application, order the proceeding to continue as if it had been started as an application for review at that time.

570Filing documents

On the filing of a review application, or as soon afterwards as is practicable, the applicant must file copies of any of the following documents in the applicant’s possession, unless a copy of the document has been filed previously in the proceeding—
(a)a statement of the terms of the decision to which the application relates;
(b)either—
(i)a statement relating to the decision given to the applicant under section 33 of the Act; or
(ii)any other statement given by or on behalf of the person who made the decision purporting to include—
(A)findings of fact; and
(B)a reference to the evidence or other material on which the findings were based; and
(C)the reasons for making the decision.

r 570 amd 2000 SL No. 127 s 50

571Setting directions hearing

On the filing of a review application, the registrar must set a time, date and place for a directions hearing before the court.

572Service on other parties

The applicant must serve—
(a)a copy of the review application; and
(b)notice of the time, date and place of the directions hearing; and
(c)a copy of all statements filed under rule 570;

on the other parties to the proceeding at least 14 days before the directions hearing, unless the time for service is shortened by the court.

573Orders and directions at directions hearing

(1)At the directions hearing, the court may make any orders and give any directions relating to the conduct of the proceeding it considers appropriate.
(2)Without limiting subrule (1), the court may make orders relating to—
(a)disclosure and interrogatories; and
(b)inspections of property; and
(c)admissions of fact or of documents; and
(d)the defining of the issues by pleadings or otherwise; and
(e)the standing of affidavits as pleadings; and
(f)inclusion of parties; and
(g)the method and sufficiency of service; and
(h)amendments; and
(i)the filing of affidavits; and
(j)the giving of particulars; and
(k)a matter specified in rule 367.
(3)Without limiting subrule (1), the court may—
(a)order that evidence of a particular fact be given at the hearing—
(i)by production of documents or entries in books; or
(ii)by copies of documents or entries; or
(iii)by an agreed statement of facts; or
(iv)otherwise as the court directs; and
(b)order that an agreed bundle of documents be prepared by the parties; and
(c)order that the reports of experts be exchanged; and
(d)order that a party serve a copy of the application on the Attorney-General; and
(e)order that a party give notice of the application to the persons or classes of persons, and in the way, the court directs; and
(f)set a date for a further directions hearing; and
(g)set a date for hearing; and
(h)set a date after which the parties are directed to arrange with the registrar a date for hearing.
(4)The court may revoke or vary an order made under subrule (1), (2) or (3).

574Hearing and determination of application at directions hearing if parties agree

The court may hear and decide the review application on a directions hearing if the parties agree.

575Non-appearance of parties at directions hearing

(1)If no applicant appears before the court on a directions hearing, the court may—
(a)dismiss the review application; or
(b)make any other order it considers appropriate.
(2)If no respondent appears before the court on a directions hearing, the court may give the directions the court considers appropriate.

576Application for dismissal or stay at directions hearing

(1)A party may apply to the court for an order under part 1, division 3 or section 48 of the Act at a directions hearing if an application is served on the other parties to the proceeding at least 3 business days before the directions hearing.

Note—

Judicial Review Act 1991, part 1 (Preliminary), division 3 (Relationship with other review rights) or section 48 (Power of the court to stay or dismiss applications in certain circumstances)
(2)The court may shorten the time for service, or dispense with service, under subrule (1).

r 576 amd 2009 SL No. 162 s 2 sch

577Application for dismissal to be made promptly

A party who seeks to have a review application dismissed—
(a)on a ground set out in part 1, division 3 or section 48 of the Act; or
(b)in the exercise of the court’s discretion;

must apply promptly for the dismissal.

578Application for costs order at directions hearing

An applicant may apply to the court for an order under section 49 of the Act at a directions hearing if an application is served on the other parties to the proceeding at least 3 business days before the directions hearing.

Note—

Judicial Review Act 1991, section 49 (Costs—review application)

r 578 amd 2009 SL No. 162 s 2 sch

579Orders or directions about or for proceeding to be sought at directions hearing

On a directions hearing, each party must, so far as practicable, apply for any order or direction about or for the proceeding that the party requires.

580Additional requirements for order of certiorari

An order of certiorari may be granted only if—
(a)a copy of the order, warrant, conviction, inquisition or record relevant to the proceeding, verified by an affidavit, has been filed; or
(b)the failure of the applicant to file the copy is accounted for to the satisfaction of the court.

581No proceeding in relation to things done under mandamus order

No proceeding may be begun or prosecuted against a person in relation to anything done in obedience to an order of the court for relief in the nature of mandamus.

582Consolidation of proceedings for prerogative injunctions

If there is more than 1 application for an injunction under section 42 of the Act pending against several persons in relation to the same office and on the same grounds, the court may order the applications to be consolidated.

Note—

Judicial Review Act 1991, section 42 (Abolition of quo warranto)

r 582 amd 2009 SL No. 162 s 2 sch

583Proceedings in relation to statements of reasons

(1)An application to the court for a declaration or order under part 4 of the Act must be made in the approved form.

Note—

Judicial Review Act 1991, part 4 (Reasons for decision)
(2)On the filing of an application under subrule (1), the applicant must file an affidavit containing—
(a)the applicant’s name and description; and
(b)details of the relief sought and the grounds on which it is sought; and
(c)the facts relied on.
(3)On the filing of an application under subrule (1), the registrar must set a time, date and place for a directions hearing before the court, at least 14, and not more than 21, days after the filing of the application, unless the time is shortened by the court.
(4)The applicant must serve the application and the affidavit mentioned in subrule (2) on the respondent at least 7 days before the directions hearing, unless the time for service is shortened by the court.
(5)At a directions hearing, the court may make the orders and give the directions for the conduct of the proceeding as it considers appropriate, including any of the orders and directions in rule 573 appropriate to the proceeding.
(6)Rules 574 and 579 apply, with necessary changes, to an application made to the court under subrule (1).

r 583 amd 2009 SL No. 162 s 2 sch

584Application by unincorporated body

(1)If the applicant in an application made to the court under the Act is an unincorporated body, the application may be brought in the name of the body.
(2)Subrule (1) does not apply unless, at the time of filing the application, there is also filed an affidavit sworn by an officer of the body stating the names and addresses of all members of the body.
(3)The affidavit must be served on each party to the proceeding.

585Proceeding for declaration or injunction

A proceeding for a declaration or injunction relating to the same matter as a review application may be included with the review application.

Part 5 Habeas corpus

586Definitions for pt 5

In this part—
respondent means the person named as the respondent in—
(a)a writ of habeas corpus; or
(b)an application for a writ of habeas corpus.
writ of habeas corpus means a writ of habeas corpus ad subjiciendum.

587Application of pt 5

This part applies only to the Supreme Court.

588Originating process

A proceeding mentioned in this part may only be started by application.

589Application to court

(1)The jurisdiction of the court to issue a writ of habeas corpus or to order the release of a person from restraint is exercisable by the court constituted by a single judge.
(2)However, the court may refer a relevant proceeding to the Court of Appeal.
(3)If an application is referred to the Court of Appeal, references in this part to the ‘court’ are interpreted as references to the Court of Appeal.

590Parties

An application under this part may be made by the person who is under restraint or by another person.

591Form and procedure

(1)An application for a writ of habeas corpus may be made without notice being given to another party.
(2)The application must be supported by an affidavit.
(3)The affidavit may—
(a)be made by another person on behalf of the person who is under restraint; and
(b)contain statements based on information and belief so long as it states the sources of information and grounds of belief.

592Procedure on application

(1)On the hearing of an application for a writ of habeas corpus, the court may—
(a)order the respondent to release the person who is under restraint; or
(b)order the issue of a writ of habeas corpus directed to the respondent and to anyone else and give directions as to the course to be taken under the writ; or
(c)dismiss the application.
(2)If a writ of habeas corpus is issued—
(a)the person to whom the writ is directed must bring the person who is under restraint before the court as directed in the writ; and
(b)unless the court directs otherwise, the writ, the application for the writ and all affidavits must, as soon as practicable, be served on the respondent and anyone else to whom the writ is directed.
(3)If a writ of habeas corpus is directed to a person in charge of a prison or other institution, service under subrule (2) may be effected by serving the person who is for the time being in charge of the prison or other institution.
(4)The court may, pending the return of the writ of habeas corpus, make an order as to the custody of the person under restraint.

593Return of writ of habeas corpus

On the return of a writ of habeas corpus, the court may do any of the following—
(a)receive further evidence in support of the application for release from restraint;
(b)permit a respondent to show cause why the person should not be released from restraint;
(c)if it considers the restraint of the person is unlawful—order the person’s release or other disposition;
(d)set aside the writ;
(e)if the evidence placed before the court suggests some other person has custody of the person under restraint—order a further writ issue directed to the other person;
(f)make an order or give directions about the disposal of the proceedings, or about the person under restraint, as it considers appropriate.

594Enforcement

(1)A writ issued under an order of the court may be enforced as an order of the court.
(2)Subrule (1) does not limit the power of the court to punish for contempt.

595Form of writ

A writ of habeas corpus must be in the approved form unless the court orders otherwise.

Part 6 Trans-Tasman proceedings

pt hdg ins 2013 SL No. 100 s 4

Division 1 Preliminary

div 1 (rr 595A–595C) ins 2013 SL No. 100 s 4

595ADefinition for pt 6

In this part—
Trans-Tasman Proceedings Act means the Trans-Tasman Proceedings Act 2010 (Cwlth).

div 1 (rr 595A–595C) ins 2013 SL No. 100 s 4

595BInterpretation

Words and expressions used in this part and the Trans-Tasman Proceedings Act have the same meaning in this part as they have in that Act except so far as the context or subject matter otherwise indicates or requires.

Note—

The following words and expressions are defined in the Trans-Tasman Proceedings Act, section 4—

audio link
audiovisual link
document
enforcement
entitled person
given
liable person
NZ judgment
party
proceeding
registered NZ judgment.

div 1 (rr 595A–595C) ins 2013 SL No. 100 s 4

595CApplication of pt 6

This part applies to civil proceedings to which the Trans-Tasman Proceedings Act applies.

div 1 (rr 595A–595C) ins 2013 SL No. 100 s 4

Division 2 Starting proceedings and applications in proceedings

div 2 (rr 595D–595E) ins 2013 SL No. 100 s 4

595DStarting proceeding for order under Trans-Tasman Proceedings Act

(1)A person who wants to start a proceeding for an order under the Trans-Tasman Proceedings Act must start the proceeding by application.
(2)The application must be supported by an affidavit that states the material facts on which the applicant relies that are necessary to give the respondent fair notice of the case to be made against the respondent at the hearing of the proceeding.
(3)Without limiting subrule (2), an affidavit in support of an application for an order for interim relief under the Trans-Tasman Proceedings Act, section 25 must state the following—
(a)if the person has started a civil proceeding in a New Zealand court—
(i)that the person has started the proceeding in a New Zealand court; and
(ii)the relief sought in the New Zealand proceeding; and
(iii)the steps taken in the New Zealand proceeding;
(b)if the person intends to start a proceeding in a New Zealand court—
(i)when the intended proceeding will be started; and
(ii)the court in which the intended proceeding is to be started; and
(iii)the relief to be sought in the intended proceeding;
(c)the interim relief sought;
(d)why the interim relief should be given.

div 2 (rr 595D–595E) ins 2013 SL No. 100 s 4

595EApplications in proceeding under Trans-Tasman Proceedings Act

(1)This rule applies to a proceeding that has already started.
(2)A party to the proceeding who wants to apply for an order under the Trans-Tasman Proceedings Act must make an application in the proceeding.
(3)The application must be supported by an affidavit that states the material facts on which the applicant relies that are necessary to give the other party fair notice of the case to be made against the other party at the hearing of the application.

div 2 (rr 595D–595E) ins 2013 SL No. 100 s 4

Division 3 Subpoenas

div 3 (rr 595F–595H) ins 2013 SL No. 100 s 4

595FApplication for leave to serve subpoena in New Zealand

(1)A party to a proceeding who requires the leave of the court to serve a subpoena in New Zealand under the Trans-Tasman Proceedings Act, section 31 must make an application for leave in the proceeding in which the subpoena was issued.
(2)The application must be accompanied by—
(a)a copy of the subpoena in relation to which leave is sought; and
(b)an affidavit stating, briefly but specifically, the following—
(i)the name, occupation and address of the person named in the subpoena;
(ii)whether the person is over 18 years;
(iii)the nature and significance of the evidence to be given, or the document or thing to be produced, by the person;
(iv)details of the steps taken to ascertain whether the evidence, document or thing could be obtained by other means without significantly greater expense, and with less inconvenience, to the person;
(v)the date by which it is intended to serve the subpoena in New Zealand;
(vi)details of the amounts to be tendered to the person to meet the person’s reasonable expenses of complying with the subpoena;
(vii)details of the way in which the amounts mentioned in subparagraph (vi) are to be given to the person;
(viii)if the subpoena requires the person to give evidence—an estimate of the time that the person will be required to attend to give evidence;
(ix)any facts or matters known to the party making the application that may be grounds for an application by the person to have the subpoena set aside under the Trans-Tasman Proceedings Act, section 36(2) or (3).

Notes—

1See the Trans-Tasman Proceedings Act, section 31 which allows the court to impose conditions when giving leave to serve a subpoena in New Zealand.
2See also the Trans-Tasman Proceedings Act, sections 33 and 37 which make provision in relation to the payment of expenses in complying with a subpoena.
(3)Despite rules 980 and 981, a person must not, without the leave of the court, search for, inspect or copy a document in an application under this rule filed in the court.

div 3 (rr 595F–595H) ins 2013 SL No. 100 s 4

595GApplication to set aside subpoena

(1)A person applying under the Trans-Tasman Proceedings Act, section 35 to set aside a subpoena served in New Zealand must make the application in the proceeding in which the subpoena was issued.
(2)The application must be accompanied by—
(a)a copy of the subpoena; and
(b)an affidavit stating the following—
(i)the material facts on which the application is based;
(ii)whether the person making the application requests that any hearing be held by audio link or audiovisual link.

div 3 (rr 595F–595H) ins 2013 SL No. 100 s 4

595HApplication for issue of certificate of noncompliance with subpoena

(1)A party to a proceeding may apply to the court that issued a subpoena for a certificate mentioned in the Trans-Tasman Proceedings Act, section 38 (a certificate of noncompliance).
(2)The application may be made—
(a)if the proceeding in which the subpoena is issued is before the court—orally to the court; or
(b)by filing the application.
(3)The application must be accompanied by—
(a)a copy of the subpoena; and
(b)a copy of the order giving leave to serve the subpoena; and
(c)an affidavit of service of the subpoena; and
(d)a further affidavit stating the following—
(i)whether any application was made to set aside the subpoena;
(ii)the material in support of an application mentioned in subparagraph (i);
(iii)any order that disposed of an application mentioned in subparagraph (i);
(iv)the material facts relied on for the issue of the certificate of noncompliance.

Note—

A certificate of noncompliance is to be stamped by the registrar with the seal of the court.

div 3 (rr 595F–595H) ins 2013 SL No. 100 s 4

Division 4 Registration and enforcement of NZ judgments

div 4 (rr 595I–595M) ins 2013 SL No. 100 s 4

595INotice of registration of NZ judgment

(1)An entitled person must not take any step to enforce a registered NZ judgment, in the period mentioned in the Trans-Tasman Proceedings Act, section 74(2), unless the entitled person has filed an affidavit stating that notice of the registration of the NZ judgment has been given in accordance with the Trans-Tasman Proceedings Act, section 73.
(2)If a liable person against whom the registered NZ judgment is enforceable is not in Australia, the affidavit may be served without leave of the court.

Note—

Chapter 4, part 7, divisions 1 to 3 otherwise provide for service of documents outside Australia.
(3)An entitled person must file a further affidavit proving service of the affidavit mentioned in subrule (1) before any step is taken to enforce the registered NZ judgment.

div 4 (rr 595I–595M) ins 2013 SL No. 100 s 4

595JApplication for extension of time to give notice of registration of NZ judgment

(1)An entitled person applying for an extension of the time within which to give notice of the registration of an NZ judgment under the Trans-Tasman Proceedings Act, section 73(3) must make the application in the proceeding in which the NZ judgment was registered.
(2)The application must be supported by an affidavit stating the following—
(a)briefly but specifically, the grounds relied on in support of the application;
(b)the material facts relied on in support of the application;
(c)why notice will not be, or was not, given within time.

div 4 (rr 595I–595M) ins 2013 SL No. 100 s 4

595KEnforcement of registered NZ judgment

(1)The form of enforcement warrant used in relation to the enforcement of a registered NZ judgment must be amended, in a way approved by the registrar, by—
(a)stating that the judgment is a registered NZ judgment; and
(b)specifying the date of, and the amount payable under, the registered NZ judgment; and
(c)specifying the amount of interest that is payable under the Trans-Tasman Proceedings Act, section 78(a) in relation to the registered NZ judgment.
(2)For subrule (1)(b), if the registered NZ judgment is registered in a currency other than Australian currency, the specified amount payable must be the amount payable under the registered NZ judgment as if it were for an equivalent amount in Australian currency based on the Trans-Tasman Proceedings Act rate of exchange.
(3)In this rule—
Trans-Tasman Proceedings Act rate of exchange means the rate of exchange mentioned in the Trans-Tasman Proceedings Act, section 69(2), as if the conversion day mentioned in that section were a reference to the day an application for an enforcement warrant for the amount payable under a registered NZ judgment is filed.

Note—

See the Trans-Tasman Proceedings Act, section 74 for the effect of registration of an NZ judgment.

div 4 (rr 595I–595M) ins 2013 SL No. 100 s 4

595LApplication to set aside registration of NZ judgment

(1)A liable person applying to set aside the registration of an NZ judgment under the Trans-Tasman Proceedings Act, section 72(1) must make the application in the proceeding in which the NZ judgment was registered.
(2)The application must be accompanied by an affidavit stating the following—
(a)briefly but specifically, the grounds on which the registration of the NZ judgment should be set aside;
(b)the material facts relied on in support of the application.

Note—

See the Trans-Tasman Proceedings Act, section 72(2) for when an application to set aside the registration of an NZ judgment may be made.

div 4 (rr 595I–595M) ins 2013 SL No. 100 s 4

595MApplications relating to a stay of enforcement of registered NZ judgment

(1)This rule applies to an application for an order under the Trans-Tasman Proceedings Act, section 76.

Note—

See the Trans-Tasman Proceedings Act, section 76(1) and (3)(b).
(2)The application must—
(a)be made in the proceeding in which the NZ judgment was registered; and
(b)be accompanied by an affidavit stating the following—
(i)the order sought;
(ii)briefly but specifically, the grounds relied on in support of the order;
(iii)the material facts relied on in support of the application;
(iv)if the application is for an order under the Trans-Tasman Proceedings Act, section 76(3)(b)—why the application will not be, or was not, made within time.

div 4 (rr 595I–595M) ins 2013 SL No. 100 s 4

Division 5 Remote appearances

div 5 (r 595N) ins 2013 SL No. 100 s 4

595NApplication for order for use of audio link or audiovisual link

(1)A party to a proceeding applying for leave for an order that an appearance be made, evidence be taken, or submissions be made, by audio link or audiovisual link from New Zealand under the Trans-Tasman Proceedings Act, section 48 or 50, must make the application in the proceeding to which the appearance, evidence or submissions relate.
(2)Subrule (1) does not apply to a request mentioned in rule 595G(2)(b)(ii).

div 5 (r 595N) ins 2013 SL No. 100 s 4

Chapter 15 Probate and administration, and trust estates

ch hdg amd 2011 SL No. 296 s 19

Part 1 Introduction

596Definitions for ch 15

In this chapter—
de facto spouse ...

def de facto spouse om 2003 SL No. 54 s 3 sch

estate means estate of a deceased person.
grant see the Succession Act 1981, section 5.
public trustee means the Public Trustee of Queensland.
spouse, in relation to a deceased person and despite the Acts Interpretation Act 1954, section 32DA(6), means a person who, at the time of the deceased’s death—
(a)was the deceased’s husband or wife; or
(b)had been the deceased’s de facto partner for a continuous period of at least 2 years ending on the deceased’s death.

def spouse ins 2003 SL No. 54 s 3 sch

amd 2007 SL No. 96 s 14

will includes codicil.

Part 2 Grants

597Application for grant

(1)A proceeding for a grant must be started by application.
(2)The proceeding may only be started in a central registry of the Supreme Court.
(3)The application need not be served.

598General notice of intention to apply for grant

(1)A person, other than the public trustee, proposing to apply for a grant must, at least 14 days before filing the application, give notice in the approved form of intention to apply for a grant.
(2)At least 7 days before filing the application, the person must also give to the public trustee a copy of the notice.
(3)The copy may be given by post or fax.
(4)If the court considers urgent circumstances exist that justify making a grant without giving notice under subrule (1), the court may dispense with compliance with the subrule.

599Requirements for notice of intention to apply for grant

(1)The notice of intention to apply for a grant—
(a)must include the following—
(i)the name, including any known alias, of the deceased in relation to whom the grant is sought;
(ii)the deceased’s last known residential address;
(iii)if the deceased left a will—the date of the will and of any other testamentary documents for which the grant is sought;
(iv)the name and address of the solicitor for the applicant, if any;
(v)the full name of each applicant for the grant; and
(b)may include a statement under the Trusts Act 1973, section 67 calling on anyone who has a claim against the estate, as creditor, beneficiary or otherwise, to give particulars of the claim to the personal representative at the address stated in the notice.
(2)The notice must be published in a publication approved by the Chief Justice under a practice direction.
(3)The court or the registrar may require the applicant to give another notice the court or the registrar considers appropriate.

r 599 amd 2000 SL No. 127 s 51; 2007 SL No. 96 s 15; 2013 SL No. 289 s 18; 2017 SL No. 206 s 4

600Registrar may make inquiries

(1)The registrar may make or arrange to be made any inquiry about the identity of the deceased, the applicant, or anything else the registrar considers requires proof or explanation.
(2)The registrar may require an answer to an inquiry to be given by affidavit.

601When registrar may make grant

(1)The registrar may make a grant under this chapter unless—
(a)a caveat relating to an estate is filed under part 7; or
(b)2 or more persons claim priority under rule 610; or
(c)the original will is not available; or
(d)the court otherwise directs by practice direction.
(2)Also, the registrar may—
(a)refer any question arising in a grant to the court; or
(b)refer any application to the court.
(3)The registrar must seal each grant and file a copy.

r 601 amd 2010 SL No. 129 s 12

Part 3 Probate and letters of administration with the will

602Contents of supporting affidavit

(1)An affidavit in support of an application for probate or letters of administration with the will must—
(a)state the following—
(i)that the will identified in the affidavit is the last will of the deceased;
(ii)the date of death or, if the date of death is not known, the circumstances of death and the place of death of the deceased;
(iii)for an application for letters of administration with the will—the grounds on which the applicant is entitled to the grant in priority to anyone else or, if the applicant does not claim priority, the facts on which the applicant relies for the making of the grant; and
(b)for an application for probate—identify the applicant as being the executor named or identified in the will; and
(c)if a certificate of the deceased’s death is issued under the Births, Deaths and Marriages Registration Act 2003 or a corresponding law of another jurisdiction—have, as an exhibit, a certified copy of the certificate.
(2)In addition, a copy of whichever of the following documents is relevant must be an exhibit—
(a)the original will;
(b)any codicil;
(c)any other document that may be a will or codicil.
(3)For each copy of a document exhibited to the affidavit under subrule (2)—

(a)the original document must also be filed when the affidavit is filed; and
(b)an additional copy of the document must be given to the registry.

(4)A copy of a document mentioned in subrules (2) and (3)(b)—

(a)if the original document is a written document—may be a legible photocopy of the document; or
(b)otherwise—must be a legible transcription of the contents of the document.

r 602 amd 2007 SL No. 96 s 16; 2014 SL No. 320 s 14

603Priority for letters of administration with the will

(1)The descending order of priority of persons to whom the court may grant letters of administration with the will is as follows—
(a)a trustee of the residuary estate;
(b)a life tenant of any part of the residuary estate;
(c)a remainderman of any part of the residuary estate;
(d)another residuary beneficiary;
(e)a person otherwise entitled to all or part of the residuary estate, by full or partial intestacy;
(f)a specific or pecuniary legatee;
(g)a creditor or person who has acquired the entire beneficial interest under the will;
(h)any one else the court may appoint.
(2)The court may grant letters of administration with the will to any person, in priority to any person mentioned in subrule (1).
(3)If 2 or more persons have the same priority, the order of priority must be decided according to which of them has the greater interest in the estate.
(4)Each applicant must establish the person’s priority by providing evidence that each person higher in the order of priority is not entitled to priority because of death, incapacity or renunciation.
(5)A document providing evidence for subrule (4) must be an exhibit to the affidavit in support of the application.
(6)The applicant need not establish priority for a person equal to or lower than the applicant in the order of priority.

604Evidence of proper attestation of will

(1)If it appears to the court that a will has been attested in the way required by law, the court may accept the attestation as evidence of the proper making of the will.
(2)If there is no attestation clause or the attestation clause does not show how the will was made, the applicant must file an affidavit made by a witness who signed the will stating how the will was made.
(3)However, if it is not practicable to comply with subrule (2) because, for example, the witnesses who signed the will are dead, the applicant must file an affidavit made by someone else present when the will was made and stating how the will was made.
(4)If it is not practicable for the applicant to comply with subrule (3) because, for example, no-one else was present when the will was made, the applicant must file an affidavit stating why it is not practicable and, if possible, giving evidence of the handwriting of the witnesses.
(5)The applicant must also state in the affidavit anything else relevant about the making of the will.

605Interlineations, alterations and erasures

(1)The court must not include an interlineation in or alteration to a will in the probate or letters of administration unless the interlineation or alteration—
(a)was in the will when the will was made; or
(b)if made afterwards—was made and attested in a way required by law; or
(c)was made valid by the remaking of the will or a later codicil.
(2)If it is not shown when the alteration was made, and the words altered can, on inspection, be easily worked out, the altered words may be included in the probate or letters of administration.
(3)If the erased words may have been of importance, the erasure must be explained by evidence.
(4)In this rule—
alteration includes erasure and obliteration.

606Documents mentioned in or attached to will

(1)If a will mentions another document and raises a question whether the document does or does not form part of the will, the applicant must produce the other document or, if possible, explain its absence.
(2)The court must not include in a grant a document mentioned in a will unless it appears to the court to have been in existence when the will was made.
(3)If there is any evidence supporting the inference that any paper may have been attached to the will, the applicant must produce the paper or, if possible, explain its absence.

607Wills made by blind or illiterate persons

Unless the court otherwise requires, it is not necessary to obtain evidence of the attestation of a blind or apparently illiterate person’s will if—
(a)the will specifically states the person is blind or apparently illiterate; and
(b)the attestation of the witnesses who signed the will acknowledges the testator knew and approved of the contents of the will.

608Marginal note

If there is no attestation clause to the will or the will is undated, a memorandum stating the name of the witness by whom its execution or date was proved must be written in the margin of the grant.

Part 4 Letters of administration on intestacy

609Contents of supporting affidavit on intestacy

An affidavit in support of an application for letters of administration on intestacy must—
(a)state the following—
(i)the date of death or, if the date of death is not known, the circumstances of death and the place of death of the deceased;
(ii)the relationship, if any, of the applicant to the deceased;
(iii)the grounds on which the applicant is entitled to a grant in priority to anyone else or, if the applicant does not claim priority, the facts on which the applicant relies for the making of the grant;
(iv)so far as it is known to the applicant—the name of anyone having, under the Succession Act 1981, sections 35 to 37, a beneficial interest in the estate in the particular circumstances; and
(b)if a certificate of the deceased’s death is issued under the Births, Deaths and Marriages Registration Act 2003 or a corresponding law of another jurisdiction—have, as an exhibit, a certified copy of the certificate.

r 609 amd 2007 SL No. 96 s 17

610Priority for letters of administration

(1)The descending order of priority of persons to whom the court may grant letters of administration on intestacy is as follows—
(a)the deceased’s surviving spouse;
(b)the deceased’s children;
(c)the deceased’s grandchildren or great-grandchildren;
(d)the deceased’s parent or parents;
(e)the deceased’s brothers and sisters;
(f)the children of deceased brothers and sisters of the deceased;
(g)the deceased’s grandparent or grandparents;
(h)the deceased’s uncles and aunts;
(i)the deceased’s first cousins;
(j)anyone else the court may appoint.
(2)A person who represents a person mentioned in a paragraph of subrule (1) has the same priority as the person represented.
(3)The court may grant letters of administration to any person, in priority to any person mentioned in subrule (1).
(4)Also, if there is more than 1 surviving spouse, the court may make a grant to 1 or more of them, or to a person lower in the order of priority.
(5)Each applicant must establish priority by providing evidence that each person higher in the order of priority is not entitled to priority because of death, incapacity or renunciation.
(6)A document providing evidence for subrule (5) must be an exhibit to the application.
(7)The applicant need not establish priority for a person equal to or lower than the applicant in the order of priority but the existence or non-existence and beneficial interest of any spouse or a person claiming to be a spouse must be sworn.

r 610 amd 2003 SL No. 54 s 3 sch

611Grant to attorney of absent person or person without prior right

(1)This rule applies if, apart from subrule (2), a person residing outside Queensland is entitled to a grant.
(2)The court may, instead of making the grant to the person, make the grant to a person residing in Queensland who the court is satisfied may act under a power of attorney for the other person.
(3)However, if the donor of the power later applies for a grant, the grant to the attorney ends.
(4)The court may also make a grant to the donee of a power of attorney given by a person residing in Queensland who is entitled to a grant.

612Court not to make grant on intestacy within 30 days after death

The court must not make a grant on an intestacy within 30 days after the death of the deceased, unless the court considers urgent circumstances exist that justify making the grant before the end of the 30 days.

613Limited administration

(1)Limited administration must not be granted to the person entitled to a general grant, other than by the court.
(2)Also, limited administration must not be granted, unless each person entitled to a general grant has consented, or renounced, or has been cited and failed to appear.

614Limited and special administration

In a limited or special administration, the grant must set out the circumstances under which the special or limited grant is made.

Part 5 Resealing grants under British Probates Act 1898

615Application of part

This part applies to an application for the resealing of a grant of probate or letters of administration under the British Probates Act 1898 (foreign grant).

616Who may apply for reseal of foreign grant

An application for the resealing of a foreign grant may be made by the executor or administrator, or a person lawfully authorised for the purpose by the executor or administrator.

617Notice of intention to apply for reseal

(1)A notice of intention to apply for the resealing of the foreign grant need not be published or served unless—
(a)there are debts owing at the date of the application in Queensland; or
(b)the court or registrar requires it for another reason.
(2)Rules 597 and 601 apply to an application for the resealing of the foreign grant with any necessary changes.

618Production of grant and testamentary papers

(1)The foreign grant or copy of the grant of probate, or administration with the will, to be resealed, and the copy to be filed in the registry, must include copies of all testamentary papers admitted to probate.
(2)If the foreign grant does not include a copy of the will, the applicant must file a copy of the will with the application.
(3)An exemplification, office copy, or other reproduction of the foreign grant which bears the rubber, embossed or other seal of the court that made the grant, on each constituent sheet of the grant, may be resealed.

619Special, limited and temporary grants

The registrar must not reseal a special, limited or temporary foreign g