Uniform Civil Procedure Rules 1999

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Magistrates Courts Rules 1960 expired at the end of 30 June 1999—Supreme Court of Queensland Act 1991, section 118B (repealed) and Acts Interpretation Act 1954, section 18.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

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 126(1) or 129G(1); 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; 2019 SL No. 50 s 3

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

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.

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.

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

ch 2 pt 6 div 1 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

ch 2 pt 6 div 2 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

ch 2 pt 6 div 3 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.

ch 2 pt 6 div 4 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

ch 2 pt 6 div 5 hdg prev ch 2 pt 6 div 5 hdg om 2012 SL No. 150 s 7

pres ch 2 pt 6 div 5 hdg (prev ch 2 pt 6 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.

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.

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.

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.

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

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

ch 3 pt 1 div 5 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

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.

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.

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

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 1 and 2 apply to a party who is a person under a legal incapacity as if the person were not a person under a legal incapacity.

(2)An act required to comply with an order under chapter 7, part 1 or 2 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; 2021 SL No. 184 s 3

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

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.

r 100 def convention ins 2001 SL No. 281 s 3

amd 2009 SL No. 162 s 3 (1)

convention country, for part 7, division 2, means a country other than Australia to which a convention applies.

r 100 def convention country ins 2001 SL No. 281 s 3

amd 2009 SL No. 162 s 3 (2)

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.

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.

ch 4 pt 3 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

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

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.

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).

ch 4 pt 7 hdg amd 2011 SL No. 296 s 3

ch 4 pt 7 div 1 hdg ins 2001 SL No. 281 s 4

sub 2019 SL No. 50 s 4

ch 4 pt 7 div 1 hdg note ins 2013 SL No. 100 s 3

om 2019 SL No. 50 s 4

ch 4 pt 7 div 1 sdiv 1 hdg ins 2019 SL No. 50 s 4

124Application of subdivision

(1)This subdivision applies only for a proceeding in the Supreme Court.

(2)However, this subdivision does not apply to service in New Zealand of an originating process for, or any other document to be served in or for, a proceeding an originating process for which may be served in New Zealand under the Trans-Tasman Proceedings Act 2010 (Cwlth), part 2, division 2.

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

sub 2019 SL No. 50 s 4

125When service allowed without leave

An originating process may be served outside Australia without leave in the following circumstances—

(a)if the claim is founded on a tortious act or omission—

(i)that was done or that happened wholly or partly in Australia; or

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

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

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

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

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

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

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

(d)if the claim—

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

(ii)is for interim or ancillary relief in respect of a matter or thing in or connected with Australia, and the relief is sought in relation to a judicial or arbitral proceeding started or to be started, or an arbitration agreement made, in or outside Australia (including, without limitation, interim or ancillary relief in relation to a proceeding under the International Arbitration Act 1974 (Cwlth) or the Commercial Arbitration Act 2013); or

(iii)without limiting subparagraph (ii), is an application for a freezing order or ancillary order under chapter 8, part 2, division 2 in respect of a matter or thing in or connected with Australia;

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

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

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

(h)if a person outside Australia is—

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

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

(i)if the claim is for—

(i)the administration of the estate of a deceased person who at the time of the person’s death was domiciled in Australia; or

(ii)relief or a remedy that might be obtained in a proceeding mentioned in subparagraph (i);

(j)if the claim arises under an Australian enactment and 1 or more of the following applies—

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

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

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

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

(k)if the person to be served has submitted to the jurisdiction of the court;

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

(m)if it is sought to recognise or enforce a judgment;

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

(o)if the claim affects the person to be served in respect of the person’s membership of a corporation incorporated in Australia, or of a partnership or an association formed or carrying on any part of its affairs in Australia;

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

(q)if the claim—

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

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

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

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

(s)if the claim, so far as it concerns the person to be served, falls partly within 1 or more of paragraphs (a) to (r) and, as to the residue, within 1 or more of the others of paragraphs (a) to (r).

Notes—

1See rules 178(4) and 195(1)(b) in relation to service under this subdivision of a counterclaim against a person not a party to a proceeding and a third party notice.

2If a proceeding is started in the court and an originating process is served outside Australia under this rule but the court later decides it is more appropriate that the proceeding be decided by a court of another Australian jurisdiction, the court may transfer the proceeding to the other court under the Jurisdiction of Courts (Cross-vesting) Act 1987 and may make an order for costs against the party who started the proceeding in the court rather than in the transferee court.

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

sub 2019 SL No. 50 s 4

126When service allowed with leave

(1)The court may, by leave, allow service outside Australia of an originating process if service is not allowed under rule 125.

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

(3)Also, an application for leave under this rule must be supported by an affidavit stating any facts or matters related to the desirability of the court assuming jurisdiction, including—

(a)the place or country in which the person to be served is or possibly may be found; and

(b)whether or not the person to be served is an Australian citizen.

(4)The court may grant leave under this rule if satisfied—

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

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

(c)in all the circumstances the court should assume jurisdiction.

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

r 126 sub 2019 SL No. 50 s 4

127Court’s discretion whether to assume jurisdiction

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

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

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

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

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

r 127 amd 2001 SL No. 107 s 4

sub 2019 SL No. 50 s 4

128Notice to person served outside Australia

(1)If a person is to be served outside Australia with an originating process, the person must also be served with a notice in the approved form informing the person of—

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

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

(c)the person’s right to challenge service of the originating process or the jurisdiction of the court or to file a conditional notice of intention to defend.

(2)Also, if the service of the originating process is by leave of the court, the notice must list the affidavits relied on to obtain the court’s leave.

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

sub 2019 SL No. 50 s 4

129Time for notice of intention to defend

(1)This rule applies if the originating process for a proceeding is a claim.

(2)Subject to subrule (3), chapter 5 applies to the proceeding.

(3)Unless the court orders otherwise, rule 137 applies to the proceeding as if the reference in rule 137(1) to 28 days were a reference to 42 days.

r 129 ins 2001 SL No. 107 s 7

sub 2019 SL No. 50 s 4

129A Service of application and affidavit

(1)This rule applies if the originating process for a proceeding is an application.

(2)Unless the court orders otherwise, the application, and any affidavit to be relied on by the applicant at the hearing of the application, must be served on each respondent who is outside Australia at least 10 business days before the day set for hearing the application.

r 129A ins 2019 SL No. 50 s 4

129B Leave to proceed if no notice filed by person

(1)If a claim is served on a person outside Australia and the person does not file a notice of intention to defend, the party serving the claim may proceed against the person served only with the leave of the court.

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

r 129B ins 2019 SL No. 50 s 4

129C Service of other documents outside Australia

(1)A document other than an originating process may be served outside Australia with the leave of the court.

(2)On an application for leave under subrule (1), the court may give the directions it considers appropriate.

r 129C ins 2019 SL No. 50 s 4

129D Mode of service

A document to be served outside Australia need not be personally served on a person as long as it is served on the person in accordance with the law of the country in which service is effected.

r 129D ins 2019 SL No. 50 s 4

ch 4 pt 7 div 1 sdiv 2 hdg ins 2019 SL No. 50 s 4

129E Application of subdivision

(1)This subdivision applies only for a proceeding in the District Court or a Magistrates Court.

(2)However, this subdivision does not apply to service in New Zealand of an originating process for, or any other document to be served in or for, a proceeding an originating process for which may be served in New Zealand under the Trans-Tasman Proceedings Act 2010 (Cwlth), part 2, division 2.

r 129E ins 2019 SL No. 50 s 4

129F When service allowed without leave

An originating process may be served outside Australia without leave in the following circumstances—

(a)if the claim is founded on a tortious act or omission—

(i)that was done or that happened wholly or partly in Queensland; or

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

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

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

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

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

(iv)was by its terms or by implication to be governed by Queensland law or to be enforceable or cognisable in a Queensland court;

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

(d)if the claim—

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

(ii)is for interim or ancillary relief in respect of a matter or thing in or connected with Queensland, and the relief is sought in relation to a judicial or arbitral proceeding started or to be started, or an arbitration agreement made, in or outside Queensland (including, without limitation, interim or ancillary relief in relation to a proceeding under the International Arbitration Act 1974 (Cwlth) or the Commercial Arbitration Act 2013); or

(iii)without limiting subparagraph (ii), is an application for a freezing order or ancillary order under chapter 8, part 2, division 2 in respect of a matter or thing in or connected with Queensland;

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

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

(g)if relief is sought against a person domiciled or ordinarily or habitually resident in Queensland (whether present in Queensland or not);

(h)if a person outside Australia is—

(i)a necessary or proper party to a proceeding properly brought against another person served or to be served (whether within Queensland or outside Queensland) under any other provision of these rules; or

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

(i)if the claim is for—

(i)the administration of the estate of a deceased person who at the time of the person’s death was domiciled in Queensland; or

(ii)relief or a remedy that might be obtained in a proceeding mentioned in subparagraph (i);

(j)if the claim arises under an Australian enactment and 1 or more of the following applies—

(i)an act or omission to which the claim relates was done or happened in Queensland;

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

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

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

(k)if the person to be served has submitted to the jurisdiction of the court;

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

(m)if it is sought to recognise or enforce a judgment;

(n)if the claim is founded on a cause of action arising in Queensland;

(o)if the claim affects the person to be served in respect of the person’s membership of a corporation incorporated in Queensland, or of a partnership or an association formed or carrying on any part of its affairs in Queensland;

(p)if the claim concerns the construction, effect or enforcement of a Queensland enactment;

(q)if the claim—

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

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

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

(r)if the claim, so far as it concerns the person to be served, falls partly within 1 or more of paragraphs (a) to (q) and, as to the residue, within 1 or more of the others of paragraphs (a) to (q).

Notes—

1See rules 178(4) and 195(1)(b) in relation to service under this subdivision of a counterclaim against a person not a party to a proceeding and a third party notice.

2See the Jurisdiction of Courts (Cross-vesting) Act 1987, section 8 for when the Supreme Court may make an order removing the proceeding to the Supreme Court and for how that Act applies in relation to the proceeding if removed under that section.

3This rule does not extend the jurisdiction the District Court or a Magistrates Court otherwise has apart from this rule.

r 129F ins 2019 SL No. 50 s 4

129G When service allowed with leave

(1)The court may, by leave, allow service outside Australia of an originating process if service is not allowed under rule 129F.

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

(3)An application for leave under this rule must be supported by an affidavit stating any facts or matters related to the desirability of the court assuming jurisdiction, including—

(a)the place or country in which the person to be served is or possibly may be found; and

(b)whether or not the person to be served is an Australian citizen.

(4)The court may grant leave under this rule if satisfied—

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

(b)Queensland is an appropriate forum for the trial; and

(c)in all the circumstances the court should assume jurisdiction.

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

r 129G ins 2019 SL No. 50 s 4

129H Application of rr 127–129D

Rules 127 to 129D apply for the proceeding as if the proceeding were a proceeding in the Supreme Court.

r 129H ins 2019 SL No. 50 s 4

ch 4 pt 7 div 2 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

ch 4 pt 7 div 3 hdg ins 2009 SL No. 162 s 4

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.

3Information about the Hague Convention, including a copy of the Hague Convention, a list of all Hague Convention countries, details of declarations and reservations made under the Hague Convention by each of those countries and the names and addresses of the Central Authority and other or additional authorities of each of those countries, may be found on the website of the Hague Conference on Private International Law.

ch 4 pt 7 div 3 sdiv 1 hdg ins 2009 SL No. 162 s 4

ch 4 pt 7 div 3 sdiv 1 note amd 2011 SL No. 296 s 4; 2019 SL No. 50 s 5

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.

r 130A 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.

r 130A 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.

r 130A 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).

r 130A 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

ch 4 pt 7 div 3 sdiv 2 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

ch 4 pt 7 div 3 sdiv 3 hdg 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.

r 130I 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.

r 130J 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.

r 130K 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.

r 130L ins 2009 SL No. 162 s 4

ch 4 pt 7 div 3 sdiv 4 hdg 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.

r 130M 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.

r 130N 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.

r 130O 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.

r 130P ins 2011 SL No. 296 s 7

ch 4 pt 7 div 1 hdg (prev ch 4 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

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

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

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

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.

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.

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.

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.

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.

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.

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.

ch 7 pt 1 hdg ins 2021 SL No. 184 s 7

208B Definitions for part

In this part—

applicant means a person who applies for an order under this part.

document includes a class of documents.

identity, of a prospective defendant, includes the name and the occupation, if any, of the prospective defendant.

prospective defendant, in relation to an applicant, means a person against whom the applicant intends to start a proceeding.

whereabouts, of a prospective defendant, includes a place of residence, registered office, place of business or other location of the prospective defendant.

r 208B ins 2021 SL No. 184 s 7

208C Orders to ascertain identity or whereabouts of prospective defendant

(1)The court may make an order under subrule (2) if it appears to the court that—

(a)an applicant may have a right to relief against a prospective defendant; and

(b)the applicant has made reasonable inquiries, but is unable to sufficiently ascertain the identity or whereabouts of the prospective defendant; and

(c)another person may have information, or possession or control of a document or thing, that may assist in ascertaining the identity or whereabouts of the prospective defendant.

(2)The court may order that the other person—

(a)attend to give evidence relating to the identity or whereabouts of the prospective defendant as directed by the order; or

(b)produce to the applicant a document or thing relating to the identity or whereabouts of the prospective defendant as directed by the order.

(3)If the court makes an order under subrule (2)(a), it may also order that the other person—

(a)produce to the court a document or thing relating to the identity or whereabouts of the prospective defendant as directed by the order; or

(b)give evidence before a registrar.

(4)Unless the court orders otherwise—

(a)an application for an order under subrule (2) must be supported by an affidavit stating—

(i)the facts on which the applicant relies; and

(ii)the information, document or thing in respect of which the order is sought; and

(b)a copy of the application and the supporting affidavit must be served personally on the other person.

(5)An application for an order under subrule (2) must be made—

(a)if it relates to an existing proceeding to which the applicant is a party—by application in the proceeding; or

(b)otherwise—by originating application.

r 208C ins 2021 SL No. 184 s 7

208D Orders for preliminary disclosure

(1)The court may make an order under subrule (2) if it appears to the court that—

(a)an applicant may have a right to relief against a prospective defendant; and

(b)it is impracticable for the applicant to start a proceeding against the prospective defendant without reference to a document; and

(c)there is an objective likelihood that the prospective defendant has, or is likely to have, possession or control of the document; and

(d)inspection of the document would assist the applicant to make the decision to start the proceeding; and

(e)the interests of justice require the order to be made.

(2)The court may order that the prospective defendant—

(a)disclose the document to the applicant as directed by the order; or

(b)produce the document to the court as directed by the order.

(3)Unless the court orders otherwise—

(a)an application for an order under subrule (2) must be supported by an affidavit stating—

(i)the facts on which the applicant relies; and

(ii)the document in respect of which the order is sought; and

(b)a copy of the application and the supporting affidavit must be served personally on the prospective defendant.

(4)An application for an order under subrule (2) must be made—

(a)if it relates to an existing proceeding to which the applicant is a party—by application in the proceeding; or

(b)otherwise—by originating application.

r 208D ins 2021 SL No. 184 s 7

208E Security for costs

An order under this part may be made subject to a condition that the applicant give security for costs and expenses of the person against whom the order is to be made.

r 208E ins 2021 SL No. 184 s 7

208F Privilege

(1)This rule applies if a person against whom an order is made under this part wishes to claim privilege from—

(a)disclosure of information sought from the person when giving evidence as directed by the order; or

(b)disclosure or production of a document ordered to be disclosed or produced under the order.

(2)If the order requires the person making the claim of privilege to attend to give evidence relating to the identity or whereabouts of the prospective defendant, the person may make the claim at the time of attending to give the evidence.

(3)If subrule (2) does not apply, the person making the claim of privilege—

(a)must serve written notice of the claim of privilege on the applicant within 7 days after service of the order or, with the court’s leave, at a later time; and

(b)if the applicant challenges the claim of privilege—must comply with the requirements of rule 213(2) and (3).

r 208F ins 2021 SL No. 184 s 7

208G Costs and other expenses

(1)On an application for an order under this part, the court may make orders for the costs of—

(a)the applicant; or

(b)the person against whom the order is made or sought; or

(c)any other party to the proceeding.

(2)The costs in respect of which an order under subrule (1) may be made include—

(a)payment of conduct money; and

(b)payment of an amount to be made on account of an expense or loss in relation to the proceeding; and

(c)the costs of making and serving a list of documents; and

(d)the costs of producing a document or thing for inspection; and

(e)the costs of otherwise complying with the requirements of an order made under this part.

r 208G ins 2021 SL No. 184 s 7

ch 7 pt 2 hdg (prev ch 7 pt 1AA hdg) ins 2021 SL No. 184 s 4

renum 2021 SL No. 184 s 6

ch 7 pt 2 div 1 hdg (prev ch 7 pt 1 hdg) (orig pt 1AA hdg) ins 2018 SL No. 127 s 52

renum 2018 SL No. 127 s 54; 2021 SL No. 184 s 5

209Application of part

(1)This part 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 part applies to all parties, including a party who is a young person and a litigation guardian of a young person.

(3)This part 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 part.

r 209 prev r 209 om 2018 SL No. 127 s 51

pres r 209 ins 2018 SL No. 127 s 52

amd 2021 SL No. 184 s 8

ch 7 pt 2 div 2 hdg (prev ch 7 pt 2 hdg) (orig pt 1 hdg) renum 2018 SL No. 127 s 54; 2021 SL No. 184 s 5

ch 7 pt 2 div 2 sdiv 1 hdg (prev ch 7 pt 2 div 1 hdg) renum 2021 SL No. 184 s 5

210Nature of disclosure

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

r 210 amd 2021 SL No. 184 s 9

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—

(a)means a record of information, however recorded; and

(b)includes—

(i)anything on which there is writing; and

(ii)anything on which there are marks, symbols or perforations having a meaning for persons qualified to interpret them; and

(iii)an electronic document.

(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; 2023 Act No. 23 s 247 sch 1 s 39(2)

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 division 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; 2021 SL No. 184 s 9

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

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 division 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 division 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.

r 223 amd 2021 SL No. 184 s 9

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 division, 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 division, 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.

r 225 amd 2021 SL No. 184 s 10

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 subdivision 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 subdivision that is tendered at the trial is admissible in evidence against the disclosing party as relevant and as being what it purports to be.

r 227 amd 2021 SL No. 184 s 11

ch 7 pt 2 div 2 sdiv 2 hdg (prev ch 7 pt 2 div 2 hdg) renum 2021 SL No. 184 s 5

228Entitlement to deliver interrogatories

A party may deliver an interrogatory only under this division.

r 228 amd 2021 SL No. 184 s 12

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 subdivision unless the amount sued for is more than $7,500.

r 230 amd 2021 SL No. 184 s 13

231Answering interrogatories

(1)Subject to this division, 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.

r 231 amd 2021 SL No. 184 s 14

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.

ch 7 pt 2 div 2 sdiv 3 hdg (prev ch 7 pt 2 div 3 hdg) renum 2021 SL No. 184 s 5

239Public interest considerations

This division 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.

r 239 amd 2021 SL No. 184 s 14

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 division 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.

r 241 amd 2021 SL No. 184 s 14

ch 7 pt 2 div 3 hdg (prev ch 7 pt 3 hdg) (orig ch 7 pt 2 hdg) renum 2018 SL No. 127 s 54; 2021 SL No. 184 s 5

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 division is not an ongoing duty.

r 242 amd 2018 SL No. 127 s 53; 2021 SL No. 184 s 14

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 division.

r 248 amd 2021 SL No. 184 s 14

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

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

ch 8 pt 2 div 1 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.

ch 8 pt 2 div 2 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

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

ch 8 pt 2 div 3 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

ch 8 pt 2 div 4 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.

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

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.

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

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.

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.

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.

291Application of pt 2

This part applies to any proceeding.

ch 9 pt 2 div 2 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

ch 9 pt 2 div 3 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

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.

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.

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.

r 313 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 ...

r 313 def senior judicial officer amd 2001 SL No. 107 s 10

om 2012 SL No. 150 s 18 (1)

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.