Australian Capital Territory

Court Procedures Rules 2006

SL2006-29

made under the

Court Procedures Act 2004

Republication No 61
Effective: 1 July 2021

Republication date: 1 July 2021

Last amendment made by SL2021-15

Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au

About this republication
The republished law
This is a republication of the Court Procedures Rules 2006, made under the Court Procedures
Act 2004 (including any amendment made under the Legislation Act 2001, part 11.3 (Editorial
changes)) as in force on 1 July 2021. It also includes any commencement, amendment, repeal or
expiry affecting this republished law to 1 July 2021.
The legislation history and amendment history of the republished law are set out in endnotes 3
and 4.
Kinds of republications
The Parliamentary Counsel’s Office prepares 2 kinds of republications of ACT laws (see the ACT
legislation register at www.legislation.act.gov.au):
• authorised republications to which the Legislation Act 2001 applies
• unauthorised republications.
The status of this republication appears on the bottom of each page.
Editorial changes
The Legislation Act 2001, part 11.3 authorises the Parliamentary Counsel to make editorial
amendments and other changes of a formal nature when preparing a law for republication.
Editorial changes do not change the effect of the law, but have effect as if they had been made by
an Act commencing on the republication date (see Legislation Act 2001, s 115 and s 117). The
changes are made if the Parliamentary Counsel considers they are desirable to bring the law into
line, or more closely into line, with current legislative drafting practice.
This republication includes amendments made under part 11.3 (see endnote 1).
Uncommenced provisions and amendments
If a provision of the republished law has not commenced, the symbol U appears immediately
before the provision heading. Any uncommenced amendments that affect this republished law
are accessible on the ACT legislation register (www.legislation.act.gov.au). For more
information, see the home page for this law on the register.
Modifications
If a provision of the republished law is affected by a current modification, the
symbol M appears immediately before the provision heading. The text of the modifying
provision appears in the endnotes. For the legal status of modifications, see the Legislation
Act 2001, section 95.
Penalties
At the republication date, the value of a penalty unit for an offence against this law is $160 for an
individual and $810 for a corporation (see Legislation Act 2001, s 133).

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 Australian Capital Territory

Court Procedures Rules 2006

made under the

Court Procedures Act 2004

Contents
Page

Chapter 1 Preliminary
1 Name of rules 2
3 Overview of rules 2
4 Application of rules 3
5 References to court, judicial officer etc 4
6 Dispensing with rules 5
7 Dictionary 6
8 Notes 6

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Chapter 2 Civil proceedings generally

Part 2.1 Introductory provisions—ch 2

20 Meaning of plaintiff and defendant 7
22 Application—ch 2 8

Part 2.2 Starting civil proceedings

Division 2.2.1 How civil proceedings are started
30 Who may start and carry on a proceeding 9
31 Kinds of originating processes 11
32 When civil proceeding starts 11
33 When originating claim must be used 12
34 When originating application must be used 12
35 When originating application may be used 13
36 When originating application taken to be used 15
37 When oral originating application may be made in Supreme Court 15
38 Proceeding incorrectly started by originating claim 16
39 Proceeding incorrectly started by originating application 17
40 Setting aside originating process etc 18
Division 2.2.2 Originating claims
50 Originating claim—content etc 19
51 Originating claim—additional matters for claims for debt and liquidated
demands 21
52 Originating claim—statement of claim for motor vehicle death and
personal injury claims 21
53 Originating claim—statement of claim for employment death and
personal injury claims 22
54 Originating claim—filing and service 24
55 Originating claim—abandonment of excess in Magistrates Court 24
Division 2.2.3 Originating applications
60 Originating application—content etc 25
61 Originating application—filing and service 27
62 When originating application must be served 28
63 What happens if originating application not served in time 28
64 Originating application—filing and service of supporting affidavits 29

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Division 2.2.4 Rules about originating process
70 Originating process to be sealed 29
71 Numbering etc of proceedings 30
72 Originating process—solicitor’s statement about filing 30
73 Defendant taken to be served by filing notice of intention to respond or
defence 31
74 Originating process—duration and renewal 31
75 When proceeding taken to be dismissed 32
76 Reinstating dismissed proceeding 33

Part 2.3 Notice of intention to respond and defence

Division 2.3.1 Notice of intention to respond and defence—general
100 No step without notice of intention to respond or defence 34
101 Notice of intention to respond or defence—details to be included 35
102 Notice of intention to respond or defence—filing and service 36
103 Notice of intention to respond or defence—late filing or service 37
104 Ground of defence arising after defence filed etc 38
105 Defence—reliance on defence not disclosed 39
106 Defendant may submit to judgment by notice of intention to respond 39
107 Notice of intention to respond or defence—several defendants with
same solicitor 41
108 Notice of intention to respond or defence—person sued under
partnership name 41
109 Notice of intention to respond or defence—person incorrectly served
as partner 42
110 Notice of intention to respond or defence—person sued under
business name 43
111 Conditional notice of intention to respond 44
Division 2.3.2 Notice of intention to respond and defence—
proceedings in Supreme Court for possession of land
150 Application—div 2.3.2 45
151 Proceeding for possession of land—leave to file defence etc 45
152 Proceeding for possession of land—filing defence etc 45
153 Proceeding for possession of land—service of defence etc 46

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Part 2.4 Parties and proceedings
Division 2.4.1 Including causes of action
200 Including causes of action 47
201 Joint and separate claims 47
202 Including causes of action inconveniently etc 47
Division 2.4.2 Including and substituting parties
210 Necessary parties 48
211 Including parties—common issues of law or fact 48
212 Including parties—defendants may be sued jointly, severally, or in
alternative 49
213 Including parties—joint entitlement 49
214 Including parties—joint or several liability 50
215 Including parties—plaintiff in doubt about defendant etc 50
216 Including defendants—identical interest in relief unnecessary 51
217 Including parties inconveniently etc 51
218 Including parties—parties incorrectly included or not included 52
219 Counterclaim or set-off when co-plaintiff wrongly included 52
220 Court may include party if appropriate or necessary 52
221 Plaintiffs may be included or substituted 53
222 Inclusion or substitution as plaintiff requires agreement 53
223 Including parties—procedure 54
224 Including parties—inclusion to recover costs 54
Division 2.4.3 Changing parties
230 Removing parties 54
231 Party becomes bankrupt, dies or becomes person with mental
disability 55
232 Amending or setting aside order for new party made on death etc of
party 57
233 Failure to proceed after death of party 57
Division 2.4.4 Included or changed parties—future conduct of
proceedings
240 Application—div 2.4.4 58
241 Included or substituted defendant—filing and service of amended
originating process 58
242 Included or substituted parties—date proceeding taken to start 59

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243 Included or substituted parties—effect of action previously taken in
proceeding 59
244 Included or changed parties—other orders about future conduct of
proceeding 60
Division 2.4.4A Representation in proceedings for personal injuries
245 Separate representation of defendant for insurer’s period on risk 61
Division 2.4.5 Proceedings under Civil Law (Wrongs) Act 2002, pt 3.1
250 One proceeding for benefit of members of deceased person’s family 61
251 Orders in proceedings for compensation to relatives in death claims 62
Division 2.4.6 Representation—trustees and personal
representatives
255 Application—div 2.4.6 63
256 Representation—by trustees and personal representatives 63
257 Representation—trustees and personal representatives must be
parties 64
258 Representation—beneficiaries and claimants 64
259 Representation—proceeding about administration of deceased
person’s estate or trust property 64
260 Representation—orders bind represented people in estate or trust
proceeding 65
261 Representation—interests of deceased person’s estate 66
Division 2.4.7 Representation—numerous concurrent interests
265 Application—div 2.4.7 67
266 Representation—numerous concurrent interests 67
267 Orders in div 2.4.7 proceeding bind represented people 68
Division 2.4.8 Multiple proceedings
270 Consolidation etc of proceedings 68
Division 2.4.9 People with a legal disability
275 Person with legal disability—litigation guardian to start proceeding etc 70
276 Who may be litigation guardian 71
277 Litigation guardian—liability for costs 71
278 Becoming a litigation guardian 72
279 Person with legal disability—effect of no notice of intention to respond
or defence 73
280 Litigation guardian—appointment and removal by court 73

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281 Litigation guardian—accounts 74
282 Person with legal disability—approval of settlement etc 75
Division 2.4.10 Partnerships
285 Meaning of partnership proceeding—div 2.4.10 75
286 Proceeding in partnership name 76
287 Disclosure of partners’ names 76
Division 2.4.11 Business names
290 Proceeding in registered business name 77
291 Proceeding in business name if unregistered etc 77
292 Business names—amendment about parties 78

Part 2.5 Third-party and similar proceedings

300 Purpose—pt 2.5 80
301 When a third-party proceeding starts 80
302 Third-party proceeding—when available 80
303 Third-party notice—content etc 81
304 Third-party notice—additional matters for claims for debt and
liquidated demands 82
305 Third-party notice—statement of claim for certain personal injury
claims 83
306 Third-party notice—filing 83
307 Third-party notice—sealing 84
308 Third-party notice—service 84
309 Third-party notice—effect of service on third party 85
310 Third-party notice—setting aside 85
311 Third-party notice—notice of intention to respond and defence 86
312 Service of pleadings after filing of third-party notice 86
313 Counterclaim by third party 86
314 Third-party notice—default by third party 87
315 Third parties—disclosure 88
316 Third-party notice—hearing 88
317 Third party—extent bound by judgment between plaintiff and
defendant 89
318 Third-party notice—judgment between defendant and third party 89
319 Notice claiming contribution or indemnity against another party 90

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320 Notice claiming contribution or indemnity—filing and service etc 91
321 Contribution under Civil Law (Wrongs) Act, s 21 92
322 Third-party notice—fourth and subsequent parties 92

Part 2.6 Pleadings

Division 2.6.1 Application—pt 2.6
400 Application—pt 2.6 94
Division 2.6.2 Rules of pleading
405 Pleadings—formal requirements 94
406 Pleadings—statements in 95
407 Pleadings—matters to be specifically pleaded 96
407A Pleadings in human rights proceedings—generally 98
407B Pleadings in human rights proceedings—public authorities 98
408 Pleadings—money claims short form 99
409 Pleadings—certain facts need not be pleaded 100
410 Pleadings—technical objections 101
411 Pleadings—references to spoken words and documents 101
412 Pleadings—conditions precedent 101
413 Pleadings—matters arising after start of proceeding 102
414 Pleadings—inconsistent allegations etc 102
415 Pleadings—notice pleaded as a fact 102
416 Pleadings—implied contracts or relations 103
417 Pleadings—kind of damages etc 103
418 Pleadings—amount of unliquidated damages 103
419 Pleadings—other relief 104
Division 2.6.3 Pleadings—general
425 Pleadings—striking out 104
426 Pleadings—trial without 105
Division 2.6.4 Particulars
430 Pleadings—all necessary particulars must be included 106
431 Pleadings—use of ‘Scott schedule’ 106
432 Pleadings—negligence and breach of statutory duty 107
433 Pleadings—how particulars must be given 107
434 Pleadings—application for better particulars 108

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435 Pleadings—failure to comply with better particulars order 108
Division 2.6.5 Answering pleadings
440 Pleadings—answering 109
441 Pleadings—denials and non-admissions 109
442 Pleadings—defence to debt and liquidated demand claims 110
443 Pleadings—defence to personal injury claims 110
444 Pleadings—defence to proceeding on bill of exchange etc 110
445 Pleadings—denial of representative capacity or partnership
constitution 111
446 Pleadings—denial of contract 111
447 Pleadings—allegations admitted unless denied etc 111
448 Pleadings—unreasonable denials and non-admissions 112
449 Pleadings—confession of defence 112
Division 2.6.6 Special defences
455 Pleadings—defence of tender 112
456 Pleadings—defence of set-off 113
Division 2.6.7 Counterclaims
460 Counterclaim—cause of action arising after start of proceeding 113
461 Counterclaim—against plaintiff 114
462 Counterclaim—against additional party 114
463 Counterclaim—abandonment of excess in Magistrates Court 116
464 Counterclaim—pleading 117
465 Counterclaim—plaintiff may rely on previous pleadings 117
466 Counterclaim—answer to 117
467 Counterclaim—defence arising after answer 117
468 Counterclaim—effect of no answer 118
469 Counterclaim—response to answer 118
470 Counterclaim—conduct and pleading 119
471 Counterclaim—order for separate hearing 119
472 Counterclaim—after judgment etc in original proceeding 120
473 Counterclaim—judgment for balance 120
474 Counterclaim—stay of claim 120
Division 2.6.8 Progress of pleading
480 Pleadings—reply to defence 121

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481 Pleadings—after reply 121
482 Pleadings—joinder of issue 122
483 Pleadings—close 122
Division 2.6.9 Admissions
490 Admissions—voluntary admission 123
491 Admissions—notice to admit facts or documents 123
492 Admissions—withdrawal 124
493 Admissions—orders on 124

Part 2.7 Amendment

500 Application—pt 2.7 126
501 Amendment—when must be made 126
502 Amendment—of documents 126
503 Amendment—after limitation period 127
504 Amendment—of originating process 128
505 Amendment—of pleadings before close of pleadings 128
506 Amendment—of pleadings disallowed 129
507 Amendment—of pleadings after close of pleadings 129
508 Amendment—when leave to amend ceases to have effect 130
509 Amendment—procedure 130
510 Amendment—person required to make 131
511 Amendment—service of amended or revised document etc 132
512 Amendment—pleading to 132
513 Amendment—costs 132
514 Amendment—taking effect 133

Part 2.8 Disclosure

Division 2.8.1 Interpretation—pt 2.8
600 Definitions—pt 2.8 134
601 Meaning of privileged from production—pt 2.8 135
Division 2.8.2 Disclosure of documents
605 Discoverable documents 136
606 Orders about disclosure 138
607 Notice to disclose discoverable documents 139

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608 List of discoverable and privileged documents etc 140
609 Claim for privilege—challenge etc 142
610 Claim for privilege—waiver 143
611 Continuing disclosure 143
Division 2.8.3 Production and inspection
620 Production of documents for inspection 144
621 Orders about production of documents for inspection 145
622 Effect of inspection of documents disclosed by another party 147
623 Production of documents at hearing of proceeding 147
Division 2.8.4 Interrogatories
630 Service of interrogatories 148
631 Objections to answer interrogatories 149
632 Orders about interrogatories 149
633 Answers to interrogatories 151
634 Answers to interrogatories—belief 152
635 Answers to interrogatories to be verified 153
636 Tendering of answers to interrogatories in evidence 153
Division 2.8.5 Who may verify list of documents or answers to
interrogatories?
640 Answers by governments, corporations etc 153
641 Party cannot swear affidavit personally 154
Division 2.8.6 Preliminary discovery
650 Discovery to identify potential defendant 155
651 Discovery to identify right to claim relief 157
652 Order under div 2.8.6—privilege 159
653 Order under div 2.8.6—costs 159
Division 2.8.7 Non-party production
659 Application—div 2.8.7 160
660 Notice for non-party production—issue 160
661 Notice for non-party production—service 161
662 Notice for non-party production—inspection by other parties 161
663 Notice for non-party production—application to set aside 162
664 Notice for non-party production—privilege or objection 163
665 Notice for non-party production—failure to produce documents 164

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666 Notice for non-party production—copying produced documents 164
667 Notice for non-party production—costs 165
Division 2.8.8 Discovery—other provisions
670 Contravention of pt 2.8 order—contempt of court 165
671 Contravention of pt 2.8 order—other action 166
672 Solicitor to notify party of certain matters about pt 2.8 166
673 Improper use of disclosed document 167
674 Failure to disclose document 168
675 Discovery by electronic means—practice notes 168

Part 2.9 Preservation of rights and property

Division 2.9.1 Interpretation—pt 2.9
700 Meaning of usual undertaking as to damages—pt 2.9 169
Division 2.9.2 Interim preservation, distribution and payment
705 Application—div 2.9.2 169
706 Urgent orders before start of proceeding 169
707 Interim distribution 171
708 Interim income 171
709 Payment before finding out everyone interested 172
Division 2.9.3 Inspection, detention, custody and preservation of
property
715 Inspection, detention, custody and preservation of property—orders
etc 172
716 Disposal of property other than land 174
717 Order for inspection, detention, custody or preservation affecting non-
party 174
718 Application for order for inspection, detention, custody or preservation 175
719 Division 2.9.3—other jurisdiction of court not affected 175
Division 2.9.4 Injunctions and similar orders
Subdivision 2.9.4.1 Injunctions and similar orders—generally
725 Meaning of division 2.9.4 order 176
726 Definitions—div 2.9.4 176
727 Division 2.9.4—other jurisdiction of court not affected 176
728 Division 2.9.4 order—procedure 177

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729 Division 2.9.4 order without notice etc 177
730 Division 2.9.4 order without trial 178
731 Division 2.9.4 order—expedited trial 179
732 Division 2.9.4 order—damages and undertaking as to damages 179
733 Division 2.9.4 order—other undertakings and security to perform
undertaking 179
Subdivision 2.9.4.2 Freezing orders
740 Definitions—sdiv 2.9.4.2 180
741 Freezing orders—general 180
742 Ancillary orders 182
743 Freezing orders—order against enforcement debtor or prospective
enforcement debtor or third party 182
745 Freezing orders—costs 184
Subdivision 2.9.4.3 Search orders
750 Definitions—sdiv 2.9.4.3 185
751 Search orders—general 185
752 Search orders—requirements for making order 187
753 Search orders—terms of order 188
754 Search orders—independent solicitors 189
755 Search orders—costs 189
Division 2.9.5 Receivers
765 Application—div 2.9.5 189
766 Receiver—agreement to act as etc 190
767 Receiver—application for order appointing etc 190
768 Receiver—address for service 190
769 Receiver—security 191
770 Receiver—remuneration 191
771 Receiver—accounts 191
772 Receiver—default 192
773 Receiver—powers 193
774 Receiver—duty in relation to property 194
775 Receiver—liability 194
776 Receiver—death of 194

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Division 2.9.6 Sales of land by court order
780 Meaning of land—div 2.9.6 195
781 Application—div 2.9.6 195
782 Sale of land—order 195
783 Sale of land—conduct of sale 195
784 Sale of land—certificate of sale result 196
785 Mortgage, exchange or partition 197

Part 2.10 Offers of compromise

1000 Application—pt 2.10 198
1001 Definitions—pt 2.10 198
1002 Making offer 198
1003 Acceptance of offer 200
1004 Withdrawal of acceptance 201
1005 Failure to comply with accepted offer 201
1006 Disclosure of offer to court 202
1007 Compromises in certain Supreme Court proceedings 203
1008 Offer to contribute 203
1009 Offer accepted and no provision for costs 204
1010 Offer not accepted and judgment no less favourable to plaintiff 204
1011 Offer not accepted and judgment no more favourable to plaintiff 205
1012 Offer not accepted and judgment no less favourable to defendant 206
1013 Costs in relation to interest 207
1014 Miscellaneous 207

Part 2.11 Resolving proceedings early

Division 2.11.1 Uncontested debts and liquidated demands
1100 Meaning of prescribed costs amount—div 2.11.1 209
1101 Application—div 2.11.1 209
1102 Stay of debt etc proceeding on payment of amount sought 209
1103 Assessment of costs for stayed debt etc proceeding 210
1104 Judgment on acknowledgment of debt or liquidated demand 210
Division 2.11.2 Default by plaintiff
1110 Default by plaintiff—dismissal of proceeding 212

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Division 2.11.3 Default by defendant
1115 Definitions—div 2.11.3 213
1116 Application—div 2.11.3 214
1117 When is a defendant in default—generally 214
1118 Default judgment—generally 217
1119 Default judgment—relevant affidavits 218
1120 Default judgment—debt or liquidated demand 219
1121 Default judgment for debt or liquidated demand—assessment of costs 220
1122 Default judgment—unliquidated damages 221
1123 Default judgment—detention of goods 222
1124 Default judgment—recovery of possession of land 223
1125 Default judgment—mixed claims 225
1126 Default judgment—other claims 225
1127 Default judgment—costs only 226
1128 Default judgment—setting aside etc 226
Division 2.11.4 Default by defendant—partial defence
1135 Definitions—div 2.11.4 227
1136 Application—div 2.11.4 227
1137 When is a defendant in default—partial defence 228
1138 Default judgment—partial defence 229
1139 Default judgment—application of div 2.11.3 230
Division 2.11.5 Summary judgment
1145 Application—div 2.11.5 231
1146 Summary judgment—for plaintiff 231
1147 Summary judgment—for defendant 232
1148 Claims not disposed of by summary disposal 233
1149 Evidence in summary judgment proceedings 233
1150 Summary judgment applications—filing and service 233
1151 Summary judgment applications—directions etc 234
1152 Summary judgment applications—costs 235
1153 Summary judgment—stay of enforcement 235
1154 Summary judgment—relief from forfeiture 235
1155 Summary judgment—setting aside 235

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Division 2.11.6 Discontinuance and withdrawal
1160 Discontinuance or withdrawal by plaintiff 236
1161 Discontinuance or withdrawal of counterclaim by defendant 236
1162 Withdrawal of notice of intention to respond 237
1163 Costs of discontinuance or withdrawal 237
1164 Withdrawal of defence or further pleading 237
1165 Notice of discontinuance or withdrawal 238
1166 Discontinuance or withdrawal by party representing someone else etc 238
1167 Discontinuance or withdrawal—subsequent proceeding 238
1168 Consolidated proceedings and counterclaims 239
1169 Stay pending payment of costs 239
Division 2.11.7 Mediation and neutral evaluation
1175 Purpose—div 2.11.7 239
1176 Definitions—div 2.11.7 239
1177 Mediation—appointment of mediator 240
1178 Neutral evaluation—appointment of evaluator 240
1179 Mediation or neutral evaluation—referral by court 241
1180 Mediation or neutral evaluation—duty of parties to take part 241
1181 Mediation or neutral evaluation—costs 241
1182 Mediation or neutral evaluation—agreements and arrangements
arising from sessions 242
1183 Neutral evaluation—privilege 242
1184 Evaluators—secrecy 243
1185 Evaluators—protection from liability 243

Part 2.12 Expert evidence

Division 2.12.1 Expert evidence generally
1200 Purposes—pt 2.12 244
1201 Meaning of code of conduct—pt 2.12 244
1202 Meaning of expert, expert witness and expert report 245
1203 Expert witnesses to agree to be bound by code of conduct 246
1204 Expert witness—immunity 246
1205 Court may give directions in relation to expert evidence 246

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Division 2.12.2 Multiple expert witnesses for same issue
1210 Application—div 2.12.2 248
1211 Court may direct experts to meet etc 248
Division 2.12.3 Expert reports
1240 Application—div 2.12.3 250
1241 Service of expert reports 251
1242 Supplementary expert reports 252
1243 Expert evidence to be covered by expert report 252
1244 Expert reports admissible as evidence of opinion etc 252
1245 Requiring attendance of expert for cross-examination etc 253
1246 Tender of expert report 253

Part 2.13 Pre-trial procedures

1301 Application—pt 2.13 254
1304 Statement of particulars before trial—personal injury claims 254
1305 Statement of particulars before trial—compensation to relatives in
death claims 257
1311 Expedited trial 259
1312 Court book 260
1325 Listing hearing 261
1326 Special fixture 262
1327 Directions hearings and listing hearings—costs 263

Part 2.14 Court supervision

Division 2.14.1 Directions
1400 Directions—application 264
1401 Directions generally 264
1402 Proceeding already being managed by court 267
1403 Decision in proceeding 268
1404 Failure to comply with direction etc 268
Division 2.14.1A Transfer of proceedings between courts
1430 Transfer of proceeding from Supreme Court to Magistrates Court—
application 269
1431 Transfer of proceeding from Supreme Court to Magistrates Court—
procedure 270

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1432 Transfer of proceeding from Magistrates Court to Supreme Court—
application 271
1433 Transfer of proceeding from Magistrates Court to Supreme Court—
stay of proceeding 271
Division 2.14.1B Removal of applications from ACAT to Supreme Court
1440 Removal of applications from ACAT to Supreme Court—application 272
1441 Removal of applications from ACAT to Supreme Court—procedure 272
Division 2.14.2 Failure to comply with rules or order
1450 Effect of failure to comply with rules 273
1451 Application because of failure to comply with rules 274
1452 Failure to comply with order to take step 274

Part 2.15 Trial

Division 2.15.1 Interpretation—pt 2.15
1500 Meaning of question—pt 2.15 276
Division 2.15.2 Proceedings at trial
1505 Trial—defendant or plaintiff not appearing 276
1506 Trial—adjournment etc 277
1507 Trial—third-party proceeding 277
1508 Order of evidence and addresses 277
1509 View by court 278
1510 Associate etc to record hearing times 279
1511 Associate to enter findings etc 279
Division 2.15.3 Separate decisions on questions
1520 Application—div 2.15.3 279
1521 Separate decisions on questions—order 280
1522 Separate decisions on questions—directions 281
1523 Separate decisions on questions—decision 281
Division 2.15.4 Assessors and court-appointed referees
1530 Assessors 281
1531 Referee—referral of question etc 282
1532 Referee—appointment 282
1533 Referee—amendment of order referring question etc 283
1534 Referee—conduct under reference 283

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1535 Referee—submission of question to court 284
1536 Referee—report 284
1537 Referee—proceeding on report 285
1538 Assessor and referee—remuneration 286
Division 2.15.5 Assessment of damages
1545 Application—div 2.15.5 286
1546 Assessment of damages 286
1547 Assessment of damages—use of affidavit evidence 287
1548 Partial judgment for damages to be assessed 287
1549 Damages to time of assessment 287

Part 2.16 Judgments and other orders

1600 Orders—required by nature of case 289
1601 Judgment book 289
1602 Judgments—several claims 290
1603 Orders—set off between enforceable money orders 290
1604 Judgments—detention of goods 291
1605 Orders—making and effect 292
1605A Orders—shortened form 292
1606 Orders—filing 292
1607 Orders—certified duplicate 294
1608 Orders—reasons 294
1609 Orders—reservation of decision 295
1610 Orders—time for compliance 295
1611 Orders—by consent 296
1612 Orders—by consent in proceeding 297
1613 Orders—setting aside etc 297
1614 Order dismissing proceeding—effect 298
1615 Orders—joint liability 299
1616 Payment into court—payment of amount paid into court under order 300
1617 Payment into court—amount recovered by person with legal disability 300
1618 Person with legal disability—orders about recovered amounts etc 301
1618A Person with mental disability—payment out to public trustee and
guardian 302
1619 Interest up to judgment 302

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1620 Interest after judgment 304
1621 Judgment for interest only 305
1622 Interest after judgment—usual order as to interest 306
1623 Change in interest rates up to and after judgment 307

Part 2.17 Costs

Division 2.17.1 Costs generally
1700 Definitions—pt 2.17 308
1701 Costs—general provisions 309
1702 Costs—agreement about costs 309
1703 Costs—order against non-party 309
1704 Costs—failure to comply with subpoena etc 311
1705 Costs—for issue or part of proceeding 312
1706 Costs—if unnecessary to continue proceeding 312
1707 Costs—proceeding removed to another court 312
1708 Costs—in account 313
Division 2.17.2 Entitlement to costs
1720 Costs—entitlement to recover 313
1721 Costs—general rule 314
1722 Costs—solicitors’ costs generally 314
1723 Costs—relevant amount for Magistrates Court proceedings 315
1724 Solicitors’ costs—separate judgments against defendants in
Magistrates Court 317
1725 Solicitors’ costs and determined fees—Supreme Court judgment within
Magistrates Court jurisdiction 317
1726 Costs—amendment of documents 319
1727 Costs—party not interested in application 319
1728 Costs—for application reserved 319
1729 Costs—extending or shortening time 320
1730 Costs—inquiry to find person entitled to property 320
1731 Costs—assessment of receiver’s costs 320
1732 Costs—trustee 320
1733 Costs—solicitor appointed litigation guardian 321
1734 Costs—assessment costs 321
1735 Costs—counsel’s advice and settling documents 321

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1736 Costs—evidence 322
1737 Costs—solicitor advocate 322
1738 Costs—retainer for counsel 322
1739 Costs—counsel’s fees for applications 322
1740 Costs—fixed costs for winding-up application 323
1741 Costs—fixed costs for enforcement order 323
Division 2.17.3 Costs of party in proceeding
1750 Application—div 2.17.3 324
1751 Costs—assessed on party and party basis 325
1752 Costs—assessed on solicitor and client etc basis 325
1753 Costs—legal practitioner’s delay etc 326
1754 Costs—disallowance of costs for vexatious document etc 327
Division 2.17.4 Costs—registrar’s powers and discretion
1760 Costs—registrar’s general powers 329
1761 Costs—registrar’s discretion in assessing 329
Division 2.17.5 Procedure for assessing costs
1800 Costs—when bill of costs to be filed etc 330
1801 Costs—if costs out of fund bill to be sent to clients 331
1802 Costs—content of bill of costs 331
1803 Costs—failure to file and serve bill of costs 332
1804 Costs—payment of disbursements 332
1805 Costs—professional charges and disbursements 333
1806 Costs—amendment and withdrawal of bill of costs 333
1807 Costs—notice of objection to bill of costs 334
1808 Costs—assessment must be limited 335
1809 Costs—default assessment if no objection to bill of costs 335
1810 Costs—setting aside default assessment 336
1811 Costs—offer to settle 336
1812 Costs—acceptance of offer to settle 338
1813 Costs—rejection of offer to settle 338
1814 Costs—Calderbank offer to settle 338
Division 2.17.6 Procedure on costs assessment
1830 Costs—attendance of parties at assessment 339
1831 Costs—notice of adjournment of assessment 340

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1832 Costs—delay before registrar etc 340
1833 Costs—set off of costs 341
1834 Costs—bill of costs reduced by 15% or more 341
1835 Costs—registrar’s certificate of assessment 341
1836 Costs—interim certificates of assessment 342
Division 2.17.7 Reconsideration and review of costs assessment
1850 Application—div 2.17.7 342
1851 Costs—application for reconsideration 343
1852 Costs—procedure for reconsideration 343
1853 Costs—reply to objection on reconsideration 344
1854 Costs—reconsideration of registrar’s assessment 344
1855 Costs—review by court 345
Division 2.17.8 Security for costs
1900 Security for costs—application and order 346
1901 Security for costs—when court may make order 346
1902 Security for costs—discretionary factors 347
1903 Security for costs—way security given 348
1904 Security for costs—effect of order 348
1905 Security for costs—setting aside or amending order 349
1906 Security for costs—finalising security 349
Division 2.17.9 Miscellaneous—pt 2.17
1920 Liquidator, guardian or manager—accounts 350

Part 2.18 Enforcement

Division 2.18.1 Enforcement—general
2000 Definitions—pt 2.18 351
2001 Enforcement orders generally 356
2002 Enforcement—enforcement application is application in original
proceeding 357
2003 Enforcement—by or against non-party 357
2004 Enforcement—amount recoverable 358
2005 Enforcement—separate enforcement for costs 358
2006 Enforcement—order in partnership name 358
2007 Enforcement—against property of partnership 359

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2008 Enforcement—against property of business 359
2009 Enforcement—enforcement of Supreme Court order in Magistrates
Court 360
2010 Enforcement—enforcement of Magistrates Court order in Supreme
Court 360
2010A Enforcement—certificate of registration of enforceable order under
Service and Execution of Process Act 361
2010B Enforcement—assessment of costs for certificate of registration 363
2011 Enforcement—demand for compliance unnecessary 364
2012 Enforcement—when leave required 364
2013 Enforcement—stay 366
2014 Enforcement—conditional orders 367
2015 Enforcement—service of order and related information 367
Division 2.18.2 Enforcement orders—general
2050 Enforcement orders—content and issue 368
2051 Enforcement orders—application to set aside 370
2052 Enforcement orders—duration and renewal of certain enforcement
orders given to enforcement officers 371
2053 Enforcement orders—return by enforcement officer 372
2054 Enforcement orders—priority 373
2055 Enforcement orders—payment under order 373
2056 Enforcement orders—orders about enforcement 374
2057 Enforcement orders—consecutive and concurrent orders 374
2058 Enforcement orders—deceased enforcement debtor 375
Division 2.18.3 Enforcement of money orders—enforcement hearings
2100 Enforcement hearing—application by enforcement creditor 375
2101 Enforcement hearing—otherwise than on enforcement creditor’s
application 377
2102 Enforcement hearing—limit on number of applications 377
2103 Enforcement hearing—order for hearing etc 378
2104 Enforcement hearing—who may be directed to attend by enforcement
hearing subpoena 379
2105 Enforcement hearing—service of enforcement hearing subpoena 380
2106 Enforcement hearing—statement of enforcement debtor’s financial
position 380
2107 Enforcement hearing—subpoena to other person 381

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2108 Enforcement hearing—meeting of parties 381
2109 Enforcement hearing—examination 382
2110 Enforcement hearing—enforcement hearing warrant issue 384
2111 Enforcement hearing—enforcement hearing warrant contents etc 385
2112 Enforcement hearing—orders 387
Division 2.18.4 Enforcement of money orders—instalment orders
2150 Instalment order—making 389
2151 Instalment order—application by enforcement debtor 389
2152 Instalment order—when application by enforcement debtor requires
leave 391
2153 Instalment order—application by enforcement creditor 392
2154 Instalment order—relevant considerations 393
2155 Instalment order—stay of enforcement 394
2156 Instalment order—content and issue 394
2157 Instalment order—instalment order agreement 395
2158 Instalment order—service 396
2159 Instalment order—no other enforcement while in force 396
2160 Instalment order—amending, suspending or setting aside 397
2161 Instalment order—ceasing to have effect other than for nonpayment 398
2162 Instalment order—ceasing to have effect for nonpayment 399
2163 Instalment order—record of payments 399
Division 2.18.5 Enforcement of money orders—seizure and sale
orders
2200 Seizure and sale order—making 401
2201 Seizure and sale order—application 401
2202 Seizure and sale order—additional exempt property 403
2203 Seizure and sale order—entry, search and seizure powers if no
consent 403
2204 Seizure and sale order—assistance to enforcement debtor 405
2205 Seizure and sale order—notice of order 405
2206 Seizure and sale order—notice of property seized 407
2207 Seizure and sale order—removal etc of seized property 408
2208 Seizure and sale order—application for instalment order stays sale of
seized property 408
2209 Seizure and sale order—property seized not abandoned 409

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2210 Seizure and sale order—seizure of real property 409
2211 Seizure and sale order—enforcement debtor not to deal with real
property 409
2212 Seizure and sale order—order of seizing and selling property 410
2213 Seizure and sale order—payment before sale 411
2214 Seizure and sale order—suspension etc of enforcement 411
2215 Seizure and sale order—agreements to withdraw and re-enter 411
2216 Seizure and sale order—nature of sale 412
2217 Seizure and sale order—setting reasonable amount 414
2218 Seizure and sale order—additional provisions relating to land 415
2218A Seizure and sale order—appointment of real estate agent 416
2219 Seizure and sale order—power of entry for auction of land 417
2220 Seizure and sale order—sale at best price obtainable 418
2221 Seizure and sale order—advertisement of sale 418
2222 Seizure and sale order—postponement of sale 420
2223 Seizure and sale order—amounts received 420
2224 Seizure and sale order—terms about payment 421
2225 Seizure and sale order—securities held by enforcement officer 421
2226 Seizure and sale order—personal property subject to conditional bill of
sale 422
2227 Seizure and sale order—effect of sale of property 422
2228 Seizure and sale order—effect of ending of order on completion of
sale etc 423
2229 Seizure and sale order—appropriation of payments towards order debt 423
2230 Seizure and sale order—documents giving effect to sale 424
2231 Seizure and sale order—payment to enforcement debtor 424
2232 Seizure and sale order—purchase by enforcement officer or
auctioneer prohibited 425
2233 Seizure and sale order—account etc 426
2234 Seizure and sale order—report by enforcement officer 426
2235 Seizure and sale order—order for disposal and return of property to
enforcement debtor 427
Division 2.18.6 Enforcement of money orders—debt redirection orders
generally
2300 Application—div 2.18.6 428
2301 Debt redirection order—making 428

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2302 Debt redirection order—application 429
2303 Debt redirection order—relevant considerations 430
2304 Debt redirection order—joint funds 431
2305 Debt redirection order—partnership debts 431
2306 Debt redirection order—account with financial institution 432
2307 Debt redirection order—claim by someone else 433
2308 Debt redirection order—when debt redirected 433
2309 Debt redirection order—notice by third person to enforcement creditor 434
2310 Debt redirection order—payments by third person 434
2311 Debt redirection order—third person disputes liability 434
2312 Debt redirection order—discharge of third person 435
2313 Debt redirection order—payment to enforcement debtor despite
redirection 436
2314 Debt redirection order—amending, suspending or setting aside 436
2315 Debt redirection order—procedure if order not complied with 438
Division 2.18.7 Enforcement of money orders—regular redirections
from financial institutions
2330 Application—div 2.18.7 439
2331 Regular redirection order—application of div 2.18.6 439
2332 Regular redirection order—making 439
2333 Regular redirection order—content 440
2334 Regular redirection order—service and coming into force 440
2335 Regular redirection order—financial institution to make payments etc 441
2336 Regular redirection order—enforcement debtor not to defeat order 442
2337 Regular redirection order—no other enforcement while in force 442
2338 Regular redirection order—ceasing to have effect 442
2339 Regular redirection order—return of excess 443
2340 Regular redirection order—record of payments 444
Division 2.18.8 Enforcement of money orders—earnings redirection
orders
2350 Earnings redirection order—making 445
2351 Earnings redirection order—application 445
2352 Earnings redirection order—relevant considerations 446
2353 Earnings redirection order—limit 447

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2354 Earnings redirection order—information about enforcement debtor’s
earnings 448
2355 Earnings redirection order—content 448
2356 Earnings redirection order—service and coming into force 449
2357 Earnings redirection order—person served not employer 449
2358 Earnings redirection order—employer to make payments etc 450
2359 Earnings redirection order—no other enforcement while in force 451
2360 Earnings redirection order—amending, suspending or setting aside 451
2361 Earnings redirection order—ceasing to have effect 452
2362 Earnings redirection order—return of excess 453
2363 Earnings redirection order—record of payments 454
2364 Earnings redirection order—2 or more orders in force 455
2365 Earnings redirection order—person served ceasing to be employer 455
2366 Earnings redirection order—enforcement debtor changes or ceases
employment 456
2367 Earnings redirection order—directions 456
2368 Earnings redirection order—employment protection 457
2369 Earnings redirection order—procedure if order not complied with 457
Division 2.18.9 Enforcement of money orders—charging orders
2400 Application—div 2.18.9 458
2401 Charging order—making 458
2402 Charging order—application 459
2403 Charging order—effect 460
2404 Charging order—enforcement debtor dealing with charged property 461
2405 Charging order—issuer etc dealing with charged property 462
2406 Charging order—application to enforce charge 462
2407 Charging order—procedure against partnership property for partner’s
separate order debt 462
Division 2.18.10 Enforcement of money orders—amounts in court and
stop orders
2420 Enforcement orders—amounts in court 464
2421 Enforcement orders—stop orders 464
Division 2.18.11 Enforcement of money orders—receivers
2430 Application—div 2.18.11 465
2431 Receiver—appointment 465

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2432 Receiver—application for appointment 465
2433 Receiver—relevant considerations for appointment 466
2434 Receiver—powers 467
2435 Receiver—general provisions apply 467
Division 2.18.12 Enforcement of non-money orders—general
2440 Enforcement—orders for possession of land 467
2441 Enforcement—orders for return of goods etc 468
2442 Enforcement—orders to do or not do an act 469
2443 Enforcement—undertakings 470
2444 Enforcement—failure of individual to comply with subpoena etc 471
2445 Enforcement—failure of corporation to comply with subpoena etc 472
2446 Enforcement by contempt or seizing and detaining property—
preconditions 473
Division 2.18.13 Enforcement of non-money orders—orders for delivery
of possession of land
2450 Application—div 2.18.13 475
2451 Order for delivery of possession of land—making 475
2452 Orders for delivery of possession of land—preconditions 476
Division 2.18.14 Enforcement of non-money orders—orders for seizure
and delivery of goods
2460 Order for seizure and delivery of goods—making 477
Division 2.18.15 Enforcement of non-money orders—orders for seizure
and detention of property
2470 Order for seizure and detention of property—making 479
2471 Order for seizure and detention of property—preconditions 479
2472 Order for seizure and detention of property—against officer of
corporation 479
2473 Order for seizure and detention of property—return of seized property 480
Division 2.18.16 Enforcement—contempt
2500 Contempt—application of div 2.18.16 480
2501 Contempt—applications generally 480
2502 Contempt—application by registrar 481
2502A Contempt of the Australian Crime Commission 481
2502B Contempt of the ACT Integrity Commission 482
2503 Contempt—arrest warrant if respondent likely to abscond etc 482

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2504 Contempt in face or hearing of court—alternative procedure 482
2505 Contempt—arrest warrant 483
2506 Contempt—punishment 484
2507 Contempt—costs 484
Division 2.18.17 Enforcement—arrest warrants for absconding
defendants
2550 Application—div 2.18.17 485
2551 Meaning of plaintiff and defendant—div 2.18.17 485
2552 Arrest warrant for defendant—application 485
2553 Arrest warrant for defendant—issue 485
2554 Arrest warrant for defendant—enforcement 486
2555 Arrest warrant for defendant—costs of enforcement 487
2556 Arrest warrant for defendant—service of warrant and claim 487
2557 Arrest warrant for defendant—record of enforcement 488
2558 Arrest warrant for defendant—procedure after arrest 488
2559 Arrest warrant for defendant—release of defendant 488
2560 Arrest warrant for defendant—court powers 489
2561 Arrest warrant for defendant—failure to comply with conditions 490
2562 Arrest warrant for defendant—review 491
2563 Arrest warrant for defendant—restriction on further applications 492
2564 Arrest warrant for defendant—costs 492

Part 2.19 Interpleader proceedings

Division 2.19.1 Stakeholder’s interpleader
2600 Interpleader—application by stakeholder 493
Division 2.19.2 Enforcement officer’s interpleader
2605 Interpleader—notice of claim to enforcement officer 494
2606 Interpleader—failure to give notice of claim 494
2607 Interpleader—notice to enforcement creditor 495
2608 Interpleader—admission of claim 496
2609 Interpleader—enforcement officer’s interpleader application 497
2610 Interpleader—enforcement debtor’s rights not affected 497
Division 2.19.3 Interpleader orders
2620 Interpleader—orders 498

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2621 Interpleader—summary disposal of proceeding 499
2622 Interpleader—adverse claims 499
2623 Interpleader—default by claimant 499
2624 Interpleader—neutrality of applicant 500
2625 Interpleader order—2 or more proceedings 500
2626 Interpleader—trial 501
2627 Interpleader—disposal of amounts in court 501

Part 2.20 Trusts, estates, accounts and inquiries

Division 2.20.1 Trusts and estates generally
2700 Trusts and estates—decision without order for administration 502
2701 Trusts and estates—application not to affect powers 502
2702 Trusts and estates—conduct of sale 503
Division 2.20.2 Taking of accounts
2720 Meaning of accounting party—div 2.20.2 503
2721 Account—order for account 503
2722 Account—orders 504
2723 Accounts—service of order etc 505
2724 Accounts—form and verification 506
2725 Accounts—filing and service 506
2726 Accounts—challenging account 506
2727 Accounts—witness 507
2728 Accounts—allowances 507
2729 Accounts—delay 507
2730 Accounts—powers exercisable on taking account 507
2731 Accounts—class interests 508
2732 Accounts—reference to judicial officer 508
2733 Accounts—certificate about taking of account 509
2734 Accounts—further consideration 510
Division 2.20.3 Making of inquiries
2740 Inquiries—procedure for inquiries 510
2741 Inquiries—orders 510

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Division 2.20.4 Executors, administrators and trustees—accounts and
commission
2745 Definitions—div 2.20.4 511
2746 Estate and trust accounts—order requiring examination and passing of
accounts 511
2747 Estate and trust accounts—compliance with order for examination and
passing of accounts 512
2748 Estate and trust accounts—application for commission 513
2749 Estate and trust accounts—notice of filing of accounts etc 513
2750 Estate and trust accounts—appearance of beneficiary at examination 514
2751 Estate and trust accounts—examination 515
2752 Estate and trust accounts—conduct of examination 516
2753 Estate and trust accounts—application for passing accounts etc 517
2754 Estate and trust accounts—passing of accounts etc 518
2755 Estate and trust accounts—amended or further accounts 518
2756 Estate and trust accounts—renewal of objection in subsequent
proceeding 518
2757 Estate and trust accounts—evidence in subsequent proceeding 519
2758 Estate and trust accounts—general practice to apply 519
2759 Estate and trust accounts—combined executors’ and trustees’ account 519
2760 Trustees—allowance of commission in proceeding 520

Part 2.21 Representation by solicitors

2800 Power to act by solicitor 521
2801 Appointment of solicitor 521
2802 Change between acting personally and acting by solicitor 521
2803 Change of solicitor 522
2804 Removal of solicitor by court 522
2805 Solicitor removed from roll etc 523
2806 Withdrawal as solicitor 524
2807 Leave to withdraw as solicitor 525
2808 Effect of removal of, or leave to withdraw as, solicitor 526
2809 Withdrawal of solicitor’s agent 526
2810 Solicitor not to act for adverse parties 527

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Part 2.22 Miscellaneous—ch 2
2900 Declaratory order 528
2901 Copies of documents from registrar 528
2902 Searches of registers etc 529
2903 Inspection of registry files 529

Chapter 3 Particular civil proceedings

Part 3.1 Administration and probate

Division 3.1.1 Administration and probate—general
3000 Definitions—pt 3.1 533
3001 Terms used in Administration and Probate Act 533
3002 Application—pt 3.1 533
Division 3.1.2 Application for grant of representation
3005 Grant of representation—application 534
3006 Grant of representation—notice of intention to apply to be published in
newspaper etc 536
3007 Grant of administration—notice of intention to apply to be served on
non-applicant domestic partner or next of kin 537
3008 Grant of administration—notice of intention of creditor to apply to be
served on domestic partner and next of kin 538
3009 Grant of representation—when notice of intention to apply to be
served on public trustee and guardian 539
3010 Grant of representation—supporting affidavit for application 540
3011 Grant of representation—affidavit of search 545
3012 Grant of representation—proof of identity and death 546
3013 Grant of representation—further evidence, documents and notices 546
3014 Grant of representation—no grant to executor etc who has renounced 546
3015 Grant of representation—when hearing not required 547
Division 3.1.3 Application for reseal of foreign grant
3020 Reseal of foreign grant—application 547
3021 Reseal of foreign grant—notice of intention to apply to be published in
newspaper etc 548
3022 Reseal of foreign grant—supporting affidavit for application 549

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3023 Reseal of foreign grant—affidavit of search 550
3024 Reseal of foreign grant—when hearing required 551
Division 3.1.4 Validity and form of wills
3030 Grant of representation—evidence of proper attestation of will 551
3031 Grant of representation—will by blind or illiterate person 552
3032 Grant of representation—alterations in will 552
3033 Grant of representation—documents mentioned in or attached to will 553
3034 Grant of representation—evidence of proper execution of will etc 554
3035 Grant of representation—will inoperative or partly inoperative 554
Division 3.1.5 Administration bonds
3045 Administration bond—requirement for bond 555
3046 Administration bond—dispensing with bond 556
3047 Administration bond—affidavit of justification 557
3048 Administration bond—exempt surety 558
3049 Administration bond—addition or reduction after required but before
given 558
3050 Administration bond—addition or reduction after given 559
3051 Administration bond—proceeding on bond 560
3052 Administration bond—application by surety 560
3053 Administration bond—reseal of foreign grant 560
Division 3.1.6 Administration by public trustee and guardian
3055 Administration by public trustee and guardian—application 561
3056 Administration by public trustee and guardian—renunciation of probate
by executors 561
3057 Administration by public trustee and guardian—renunciation of letters
of administration by entitled people 562
3058 Administration by public trustee and guardian—service of documents
on public trustee and guardian 562
Division 3.1.7 Caveats
3065 Definitions—div 3.1.7 563
3066 Caveat—filing 563
3067 Caveat—service 565
3068 Caveat—period of operation 565
3069 Caveat—setting aside 565

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3070 Caveat—withdrawal if no pending proceeding for grant of
representation etc 567
3071 Caveat—leave to withdraw 567
3072 Caveat—effect if filed on day of grant 568
Division 3.1.8 Revocation of grant
3080 Revocation of grant—urgent order before start of proceeding 568
3081 Revocation of grant—application 569
3082 Revocation of grant—orders 569
3083 Revocation of grant—return of original grant 570
Division 3.1.9 Other probate proceedings
3090 Definitions—div 3.1.9 570
3091 Application—div 3.1.9 570
3092 Division 3.1.9 proceeding—starting 572
3093 Division 3.1.9 proceeding—application for revocation 572
3094 Division 3.1.9 proceeding—affidavits 572
3095 Division 3.1.9 proceeding—affidavits of scripts 573
3096 Division 3.1.9 proceeding—directions for notice to people with
beneficial interests 574
3097 Division 3.1.9 proceeding—notice of intention to intervene 574
3098 Division 3.1.9 proceeding—filing of grant of representation 575
Division 3.1.10 Administration and probate—other provisions
3110 Administration and probate—registrar may make inquiries 575
3111 Administration and probate—subpoenas 575
3112 Administration and probate—evidence about domicile 576
3113 Administration and probate—proof in solemn form 576
3114 Failure of executor to prove will—Administration and Probate Act, s 25 577
3115 Failure by executor, administrator or trustee to comply with
beneficiary’s request etc 578
3116 Grant of administration—grant to child 579
3117 Order about administration of real estate—Administration and Probate
Act, s 51 580
3118 Assessment of costs—Administration and Probate Act, s 71 580
3119 Administration and probate book 580
3120 Proved wills to be kept by court 581

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Part 3.2 Adoption
Division 3.2.1 Adoption—general
3150 Definitions—pt 3.2 582
3151 Terms used in Adoption Act 583
3152 Application—pt 3.2 583
Division 3.2.2 Adoption orders
3155 References to applicants—div 3.2.2 583
3156 Adoption order—application 584
3157 Adoption order—supporting affidavit for application 584
3158 Adoption order—documents accompanying application 587
3159 Adoption order—service of application on CYP director-general 589
3160 Adoption order—notice of intention to oppose 589
Division 3.2.3 Orders for dispensing with consent to adoption
3170 Dispensing order—application 590
3171 Dispensing order—service of application 591
3172 Dispensing order—notice of intention to oppose 591
Division 3.2.4 Amendment of adoption order
3180 Amendment order—application 592
3181 Amendment order—service of application 592
3182 Amendment order—notice of intention to oppose 592
Division 3.2.5 Discharge of interim orders and adoption orders
3190 Discharging order—application 593
3191 Discharging order—service of application 593
3192 Discharging order—notice of intention to oppose 593
Division 3.2.6 Access to identifying information
3200 Order for access to identifying information—application 594
3201 Order for access to identifying information—service of application 594
3202 Order for access to identifying information—notice of intention to
oppose 595
Division 3.2.7 Adoption proceedings—general procedures
3210 Adoption proceedings—service of applications 595
3211 Adoption proceedings—service of documents containing identifying
information 596

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Part 3.3 Commercial arbitration
Division 3.3.1 Commercial arbitration—general
3250 Meaning of Commercial Arbitration Act—pt 3.3 597
3251 Terms used in Commercial Arbitration Act 597
3252 Commercial arbitration—application 598
3253 Commercial arbitration—leave to appeal under Commercial Arbitration
Act, s 34A 598
3255 Commercial arbitration—application under Commercial Arbitration Act,
s 27J 599
3256 Commercial arbitration—application for order under Commercial
Arbitration Act, s 34 (1) 599
3257 Commercial arbitration—offers of compromise 600
3258 Commercial arbitration—examination of witnesses 600
3259 Commercial arbitration—decision to refuse to issue interim measure 601
3260 Commercial arbitration—application to enforce arbitral award 601
3261 Commercial arbitration—evidence of arbitral award for purposes of
enforcement 601
3262 Commercial arbitration—endorsement and service of application for
enforcement 602
Division 3.3.2 Commercial arbitration—payment into court
3263 Commercial arbitration—payment into court 602
3264 Payment into court—costs 603
3265 Payment into court—bond or security 603
3266 Payment into court—interest up to payment 604
3267 Payment into court—acceptance 604
3268 Payment into court—costs on acceptance by claimant 605
3269 Payment into court—payment out of remaining amount 605
3269A Payment into court—nondisclosure 605

Part 3.4 Corporations Act and ASIC Act

3270 Rules for proceedings under Corporations Act or ASIC Act 606

Part 3.5 Cross-vesting

3300 Definitions—pt 3.5 607
3301 Terms used in Cross-vesting Act 607

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3302 Application—pt 3.5 607
3303 Cross-vesting—application for transfer or removal of proceedings 608
3304 Cross-vesting—application by Attorney-General 608
3305 Cross-vesting—removal of proceedings 608
3306 Cross-vesting—relying on jurisdiction under cross-vesting laws 609
3307 Cross-vesting—service 609
3308 Cross-vesting—directions 610
3309 Cross-vesting—procedure following transfer of proceeding from court 611
3310 Cross-vesting—procedure following transfer of proceeding to court 611
3311 Cross-vesting—application of another jurisdiction’s written law 612
3312 Cross-vesting—application of another jurisdiction’s rules of evidence
and procedure 612

Part 3.6 Electoral matters

Division 3.6.1 Electoral matters—general
3350 Definitions—pt 3.6 613
3351 Terms used in Electoral Act 613
3352 Application—pt 3.6 614
3353 Election application etc originating application 614
Division 3.6.2 Disputed elections
3355 Disputed election—deposit as security for costs 615
3356 Disputed election—public notice of election application 615
3357 Disputed election—parties to proceeding 615
3358 Disputed election—public notice of intention to make application for
leave to withdraw 616
3359 Disputed election—particulars of contested ballot papers 616
3360 Disputed election—countercharges 617
3361 Disputed election—time of trial etc 618
3362 Disputed election—substitution of plaintiff 618
3363 Disputed election—withdrawal of defendant 619
3364 Disputed election—substitution of defendant 619
Division 3.6.3 Questions referred by Legislative Assembly
3400 Question referred—parties to proceeding 619
Division 3.6.4 Electoral matters—general procedure
3405 Electoral matters—better particulars 620

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Part 3.7 Foreign and interstate confiscation orders—
registration
Division 3.7.1 Foreign confiscation orders—registration
3450 Definitions—div 3.7.1 621
3451 Application—div 3.7.1 621
3452 Foreign confiscation orders—register 621
3453 Foreign confiscation orders—registration 622
3454 Foreign confiscation orders—proceedings for registration 622
3455 Foreign confiscation orders—when registration cancelled 624
Division 3.7.2 Interstate confiscation orders—registration
3460 Definitions—div 3.7.2 624
3461 Interstate confiscation orders—register 624
3462 Interstate confiscation orders—registration 625
3463 Interstate confiscation orders—proceedings for registration 625
3464 Interstate confiscation orders—when registration cancelled 626
3465 Interstate confiscation orders—filing of amendments etc 626

Part 3.8 Foreign judgments—reciprocal enforcement

3470 Definitions—pt 3.8 627
3471 Terms used in Foreign Judgments Act 627
3472 Application—pt 3.8 627
3473 Foreign judgment—application for registration 628
3474 Foreign judgment—evidence in support of application for registration 628
3475 Foreign judgment—security for costs of application for registration 630
3476 Foreign judgment—order for registration 630
3477 Foreign judgment—register 630
3478 Foreign judgment—registration 631
3479 Foreign judgment—notice of registration 632
3480 Notice of registration—affidavit of service to be filed 632
3481 Registration of judgment—application to set aside 632
3482 Foreign judgment—enforcement 633
3483 Australian judgment—certificate for foreign registration 633

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Part 3.9 Habeas corpus
3500 Definitions—pt 3.9 635
3501 Application—pt 3.9 635
3502 Habeas corpus—writs of habeas corpus abolished 635
3503 Habeas corpus—order instead of writ of habeas corpus 635
3504 Habeas corpus—application and service 636
3505 Habeas corpus—parties 636
3506 Habeas corpus—procedure on application etc 637
3507 Habeas corpus—return of order 638

Part 3.10 Judicial review

3550 Definitions—pt 3.10 640
3551 Terms defined in Judicial Review Act 641
3552 Application—pt 3.10 641
3553 Judicial review—prerogative writs etc abolished 642
3554 Judicial review—relief previously granted by prerogative writ etc 642
3555 Judicial review—other jurisdiction not excluded 643
3556 Judicial review—application etc 643
3557 Judicial review—time for starting proceeding 645
3558 Judicial review—declaration or injunction 646
3559 Judicial review—other prerogative relief etc 646
3560 Judicial review—additional orders 647
3561 Judicial review—application for statutory order of review and
prerogative relief etc 648
3562 Judicial review—relief based on application for prerogative relief etc if
application made for statutory order of review 648
3563 Judicial review—filing and serving statements 649
3564 Judicial review—stay or dismissal of application for statutory order of
review on return date 650
3565 Judicial review—directions on return date 651
3566 Judicial review—power of the court to stay or dismiss applications in
certain circumstances 652
3567 Judicial review—additional requirements for certiorari order 653
3568 Judicial review—no proceeding in relation to things done under
mandamus order 653
3569 Judicial review—disclaimer in relation to quo warranto order 654

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3570 Judicial review—proceeding in relation to statement of reasons 655

Part 3.11 Legal profession

Division 3.11.1 Legal profession—general
3600 Definitions—pt 3.11 656
3601 Terms used in Legal Profession Act 657
3602 Application—pt 3.11 657
Division 3.11.2 Admission of local lawyers
Subdivision 3.11.2.1 Academic qualifications
3605 Admission—approved academic qualifications—Legal Profession Act,
s 21 (5) 658
Subdivision 3.11.2.2 Approval of academic institutions
3606 Approved academic institutions 659
3607 Monitoring and review 660
Subdivision 3.11.2.3 Approval of course of study
3607A Approval of course of study 661
3607B Approval of subjects 661
3607C Changes to approved courses of study 662
Subdivision 3.11.2.4 Practical legal training
3607D Practical legal training 663
3607DA Early commencement of practical legal training 664
Subdivision 3.11.2.5 Practical legal training providers and courses
3607E Approval of PLT providers 665
3607F Monitoring and review of approved PLT provider 666
3607G Approval of training course 666
3607H Changes to approved courses of study 667
Subdivision 3.11.2.6 Admission—application and related matters
3608 Admission—application for admission 668
3609 Admission—when application must be made 670
3609A Request for absentee admission 670
3610 Admission—compliance certificate (Legal Profession Act, s 30 (2)) 671
3611 Admission—objection by bar council or law society council 671
3612 Admission—appearance by bar council or law society council 672
3613 Admission—applicant’s duty of frankness 672

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3614 Admission—oath or affirmation 672
3614A Admission—absentee admission 673
3615 Admission—entry on local roll 674
Division 3.11.3 Assessment of client costs
3620 Application—div 3.11.3 674
3621 Form of application 674
3622 Application for leave to apply out of time 675
3623 Directions 675
3624 Response to application 675
3625 Notice of objections to legal costs 676

Part 3.12 Family violence and personal violence

proceedings
Division 3.12.1 Family violence and personal violence proceedings—
general
3800 Terms used in Family Violence Act and Personal Violence Act 677
3801 Application—pt 3.12 677
3802 Rules in ch 2 disapplied 677
3803 Other disapplied rules 679
3804 Correction of name of respondent 680

Part 3.13 Workers compensation

Division 3.13.1 Workers compensation proceedings—general
3900 Definitions—pt 3.13 681
3901 Terms used in Workers Compensation Act 682
3902 Application—pt 3.13 682
3903 Workers compensation proceedings—application of ch 2 generally 682
Division 3.13.2 Workers compensation—applications for arbitration
3904 Application for arbitration—Commercial Arbitration Act not apply 684
3905 Application for arbitration—by worker 684
3906 Application for arbitration—by dependant or estate of deceased worker 684
3907 Application for arbitration—by employer or insurer 685
3909 Application for arbitration—injury notice and medical evidence 685
3910 Application for arbitration—copies 686
3911 Application for arbitration—service on respondent 686

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3912 Application for arbitration—service on insurer 686
3913 Application for arbitration—answer by respondent or third-party
respondent 687
3914 Application for arbitration—liability and particulars subject to answer 687
3915 Application for arbitration—service of answer 688
3916 Application for arbitration—amendment 688
3917 Application for arbitration—minor amendment or amendment by
consent 689
3918 Application for arbitration—discontinuance 690
Division 3.13.3 Workers compensation—parties for arbitration
3919 Arbitration—necessary parties 691
3919A Arbitration—determination of Territory or State of connection 691
3920 Arbitration—including other parties 692
3921 Arbitration—person may apply to be included as party 693
3922 Arbitration—party may apply to be removed as party 693
3923 Arbitration—employer not respondent in certain applications by
dependant or personal representative 693
Division 3.13.4 Workers compensation—representation in arbitrations
3924 Arbitration—party may be represented 694
3925 Arbitration—separate representation of employer for insurer’s period
on risk 695
Division 3.13.6 Workers compensation—medical reports for
arbitrations
3928 Arbitration—service of medical reports 695
3929 Arbitration—supplementary medical reports 696
3930 Arbitration—doctor’s evidence to be covered by medical report 697
3931 Arbitration—medical reports admissible as evidence of opinion etc 697
3932 Arbitration—requiring attendance of doctor for cross-examination etc 697
3933 Arbitration—tender of medical report 698
Division 3.13.7 Workers compensation—medical referees for
arbitrations
3934 Arbitration—party may apply for medical referee etc 698
3935 Arbitration—number of medical referees 699
3936 Arbitration—notice of request to medical referee 699
3937 Arbitration—assessment of worker by medical referee 699

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3938 Arbitration—medical referee to review medical evidence etc 699
3939 Arbitration—medical referee’s report 700
3940 Arbitration—medical referee’s report to be given to parties 701
3941 Arbitration—court may decide claim without medical referee report 701
Division 3.13.8 Workers compensation—dispute resolution
conference for arbitration
3942 Meaning of dispute resolution conference—div 3.13.8 701
3943 Dispute resolution conference—purpose 701
3944 Conciliator for dispute resolution conference—div 3.13.8 702
3945 Dispute resolution conference—listings etc 702
3946 Dispute resolution conference—requirement to attend 703
3947 Dispute resolution conference—time 703
3948 Dispute resolution conference—information to be provided before
conference 704
3948A Dispute resolution conference—confidentiality 704
3948B Dispute resolution conference—settlement must be in writing 704
3948C Dispute resolution conference—court orders on outcome of
conference 705
Division 3.13.9 Workers compensation—conduct of arbitration
3949 Conduct of arbitration—date 706
3950 Conduct of arbitration—burden of proof on party asserting fact 706
3951 Conduct of arbitration—directions about third-party respondents 706
3952 Conduct of arbitration—directions and orders if remedy against
employer and stranger 707
3953 Conduct of arbitration—directions generally 708
Division 3.13.10 Workers compensation—submission to award and
payments into court
3954 Arbitration—payment into court generally 709
3955 Arbitration—admission of liability to claim by worker 709
3956 Arbitration—admission of liability to claim for deceased worker 710
3957 Arbitration—denial and submission to award or payment by employer 710
3958 Arbitration—acceptance of payment by worker 711
3959 Arbitration—acceptance of payment for deceased worker 712
3960 Arbitration—payment on worker’s acceptance 712
3961 Arbitration—payment on dependant’s etc acceptance 713

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3962 Arbitration—no prompt acceptance of submission or payment 713
3963 Arbitration—award not greater than submission or payment 714
Division 3.13.11 Workers compensation—awards
3964 Arbitration—award 715
3965 Arbitration—setting aside or amending award 716
Division 3.13.12 Workers compensation—registered agreements
3966 Registered agreement—application for registration 717
3967 Registered agreement—application for amendment or cancellation 718
Division 3.13.13 Workers compensation—costs
3968 Workers compensation costs—generally 718
3969 Workers compensation costs—claim against arbitration award 719
Division 3.13.14 Workers compensation—appeals
3970 Appeal—order of Supreme Court 720

Chapter 4 Criminal proceedings

Part 4.1 Criminal proceedings—general

Division 4.1.1 Criminal proceedings—application of ch 2
4000 Criminal proceedings—application of expert witness code of conduct 721
Division 4.1.2 Criminal proceedings—service
4005 Meaning of accused person for div 4.1.2—bail applications 721
4006 Criminal proceedings—application of pt 6.8 722
4007 Criminal proceedings—service on accused person by filing if no
address for service 722
4008 Criminal proceedings—service if no-one found at accused person’s
address for service 723
4009 Criminal proceedings—service of documents when unrepresented
accused person in custody 723
Division 4.1.3 Criminal proceedings—enforcement
4020 Criminal proceedings—failure of individual to comply with subpoena
etc 724
4021 Criminal proceedings—failure of corporation to comply with subpoena
etc 725

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Division 4.1.4 Criminal proceedings—other provisions
4050 Criminal proceedings—production of person in custody 726
4051 Criminal proceedings—defence response to prosecutor’s opening
address 727
4052 Criminal proceedings—execution of documents 727
4053 Criminal proceedings—inspection of registry files 727
4054 Criminal proceedings—certificate of conviction 730
4055 Criminal proceedings—preparation of judgments 730

Part 4.2 Magistrates Court criminal proceedings

Division 4.2.1 Magistrates Court criminal proceedings—preliminary
4300 Definitions—pt 4.2 731
4301 Application—pt 4.2 731
Division 4.2.1AA Magistrates Court criminal proceedings—first
appearance
4302 When not necessary for court to read charges to defendant 731
4303 Represented defendant may enter plea or consent to summary
disposal of proceeding 732
Division 4.2.1A Magistrates Court criminal proceedings—prosecution
evidence in committal proceedings
4305 Prosecution evidence to be given to accused etc—Magistrates Court
Act, s 90 733
Division 4.2.2 Magistrates Court criminal proceedings—setting aside
orders
4310 Magistrates Court order made in absence of party may be set aside—
general 733
4311 Magistrates Court order made in absence of defendant may be set
aside—summons for prescribed offence 734
4312 Magistrates Court order made in absence of party may be set aside—
other offences 735
4313 Magistrates Court conviction made in absence of party set aside—
warrant may be set aside 735
4314 Magistrates Court conviction made in absence of party set aside—
hearing 736
4315 Magistrates Court order made in absence of party may be set aside—
application by informant 736

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Division 4.2.3 Magistrates Court criminal proceedings—witnesses
4330 Magistrates Court witness—informant may request attendance 737
4331 Magistrates Court witness—expenses 738

Part 4.3 Supreme Court criminal proceedings

Division 4.3.1 Supreme Court criminal proceedings—preliminary
4700 Definitions—pt 4.3 739
4701 Application—pt 4.3 740
Division 4.3.2 Supreme Court criminal proceedings—representation
4705 Meaning of criminal proceeding—div 4.3.2 740
4706 Supreme Court criminal proceedings—notice of solicitor acting 740
4707 Supreme Court criminal proceedings—change of solicitor 741
4708 Supreme Court criminal proceedings—removal of solicitor by court 742
4709 Supreme Court criminal proceedings—solicitor removed from roll etc 742
4710 Supreme Court criminal proceedings—solicitor’s instructions to act for
accused person ended 743
4711 Supreme Court criminal proceedings—withdrawal of solicitor 744
4712 Supreme Court criminal proceedings—handing over depositions 745
Division 4.3.3 Supreme Court criminal proceedings—bail
4720 Meaning of accused person—div 4.3.3 745
4721 Supreme Court bail application in relation to accused person 746
4722 Supreme Court bail application by informant 749
4723 Supreme Court application for bail by unrepresented accused person 749
4724 Prosecution application for review of bail decision 750
Division 4.3.4 Supreme Court criminal proceedings—pre-trial
procedure
4730 Application—div 4.3.4 751
4731 Supreme Court criminal proceedings—appearance of accused person 751
4732 Supreme Court criminal proceedings—appearance when committed
for sentence 751
4733 Supreme Court criminal proceedings—appearance when committed
for trial 752
4734 Supreme Court criminal proceedings—pre-trial questionnaire 753
4735 Supreme Court criminal proceedings—completion of pre-trial
questionnaire 754

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4735A Supreme Court criminal proceedings—registrar’s directions hearing 755
4736 Supreme Court criminal proceedings—arraignment 755
4737 Supreme Court criminal proceedings—pre-trial directions hearing 755
4738 Supreme Court criminal proceedings—directions 756
4739 Supreme Court criminal proceedings—proceeding already being
managed by court 757
Division 4.3.5 Supreme Court criminal proceedings—pre-trial
applications
4750 Supreme Court criminal proceedings—application to set aside or stay
proceeding 757
4751 Supreme Court criminal proceedings—application for separate trials 758
4752 Supreme Court criminal proceedings—other pre-trial applications 758
4753 Supreme Court criminal proceedings—applications under r 4750, r
4751 and r 4752 759

Part 4.4 Forensic proceedings

Division 4.4.1 Forensic proceedings—preliminary
4800 Definitions—pt 4.4 761
4801 Forensic proceedings—application of applied civil rules 761
4802 Forensic proceedings—application of applied criminal rules 762
Division 4.4.2 Forensic proceedings under the Act, pt 2.5 and the
Crimes Act, pt 1D, div 5
4803 Application—div 4.4.2 762
4804 Forensic proceedings—filing of application 763
4805 Forensic proceedings—personal service 763
Division 4.4.3 Forensic proceedings under the Act, pt 2.7 and the
Crimes Act, pt 1D, div 6A
4806 Application—div 4.4.3 763
4807 Forensic proceedings—application and service 764
Division 4.4.4 Forensic proceedings—general
4808 Forensic proceedings—application not served in time 765
4809 Forensic proceedings—filing and service of supporting affidavit 765
4810 Forensic proceedings—costs 766

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Chapter 5 Appellate proceedings

Part 5.1 Appellate proceedings—preliminary

5000 Definitions—ch 5 767
5001 Appellate proceedings—application of ch 2 generally 767

Part 5.2 Appeals from registrar

5010 Definitions—pt 5.2 769
5011 Application—pt 5.2 769
5012 Appeals from registrar—starting appeal 769
5013 Appeals from registrar—requirements for notice of appeal 769
5014 Appeals from registrar—time for filing notice of appeal 770
5015 Appeals from registrar—notice of appeal to be sealed 771
5016 Appeals from registrar—serving notice of appeal 771
5017 Appeals from registrar—stay and reinstatement 771

Part 5.3 Appeals to Supreme Court

Division 5.3.1 Appeals to Supreme Court—preliminary
5050 Definitions—pt 5.3 773
5051 Application—pt 5.3 774
5052 Appeals to Supreme Court—general powers 775
5053 Appeals to Supreme Court—non-publication order 776
5054 Appeals to Supreme Court—stay and reinstatement 777
5055 Appeals to Supreme Court—security for costs 779
Division 5.3.2 Appeals to Supreme Court—leave to appeal
5070 Application—div 5.3.2 779
5071 Appeals to Supreme Court—application for leave to appeal 780
5072 Appeals to Supreme Court—time for filing application for leave to
appeal 781
5073 Appeals to Supreme Court—application for leave to appeal to be
sealed 781
5074 Appeals to Supreme Court—serving application for leave to appeal 781
5075 Appeals to Supreme Court—notice of intention to respond to
application for leave to appeal 782

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5076 Appeals to Supreme Court—time for filing etc respondent’s affidavits
for leave to appeal 783
Division 5.3.3 Appeals to Supreme Court—leave to appeal out of time
5080 Meaning of out of time—div 5.3.3 783
5081 Application—div 5.3.3 783
5082 Appeals to Supreme Court—application for leave to appeal out of time 784
5083 Appeals to Supreme Court—filing application for leave to appeal out of
time 784
5084 Appeals to Supreme Court—application for leave to appeal out of time
to be sealed 785
5085 Appeals to Supreme Court—serving application for leave to appeal out
of time 785
5086 Appeals to Supreme Court—notice of intention to respond to
application for leave to appeal out of time 786
5087 Appeals to Supreme Court—time for filing etc respondent’s affidavits
for leave to appeal out of time 786
Division 5.3.4 Appeals to Supreme Court—procedure generally
5100 Appeals to Supreme Court—starting appeal 787
5101 Appeals to Supreme Court—requirements for notice of appeal etc 787
5102 Appeals to Supreme Court—parties to appeal 789
5103 Appeals to Supreme Court—time for filing notice of appeal 790
5104 Appeals to Supreme Court—notice of appeal to be sealed 791
5105 Appeals to Supreme Court—numbering etc of appeals 791
5106 Appeals to Supreme Court—date for settlement of appeal papers 791
5107 Appeals to Supreme Court—serving notice of appeal 792
5108 Appeals to Supreme Court—notice of intention to respond 793
5109 Appeals to Supreme Court—respondent taken to be served by filing
notice of intention to respond 794
5110 Appeals to Supreme Court—documents 794
5111 Appeals to Supreme Court—amending notice of appeal 796
5112 Appeals to Supreme Court—cross-appeal 797
5113 Appeals to Supreme Court—application of certain rules to cross-
appeals 799
5114 Appeals to Supreme Court—effect of failure to give notice of cross-
appeal 800
5115 Appeals to Supreme Court—notice of contention 800

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Division 5.3.5 Appeals to Supreme Court—appeal papers and hearing
5130 Appeals to Supreme Court—draft index of appeal papers 803
5131 Appeals to Supreme Court—settlement of appeal papers 803
5132 Appeals to Supreme Court—content of appeal papers 803
5133 Appeals to Supreme Court—presentation of appeal papers 805
5134 Appeals to Supreme Court—filing and serving appeal papers 805
5135 Appeals to Supreme Court—setting appeal for hearing 806
5136 Appeals to Supreme Court—changing appeal hearing date 806
5137 Appeals to Supreme Court—written summary and list for appeal
hearing 806
5138 Appeals to Supreme Court—summaries of arguments 807
5139 Appeals to Supreme Court—list of authorities, legislation and texts 808
5140 Appeals to Supreme Court—absence of party 809
5141 Appeals to Supreme Court—insufficient material 810
Division 5.3.6 Appeals to Supreme Court—ending all or part of
appeal
5170 Appeals to Supreme Court—abandonment of ground of appeal 810
5171 Appeals to Supreme Court—discontinuance of appeal 811
5172 Appeals to Supreme Court—competency of appeal 812
5173 Appeals to Supreme Court—costs for failure to apply for appeal to be
struck out as incompetent 813
5174 Appeals to Supreme Court—dismissal by consent 813
5175 Appeals to Supreme Court—consent orders 814
Division 5.3.7 Appeals to Supreme Court—miscellaneous
5190 Appeals to Supreme Court—directions about appeal etc 814
5191 Appeals to Supreme Court—want of prosecution of appeal 815
5192 Appeals to Supreme Court—matter happening in court or tribunal
appealed from 817
5193 Further evidence on appeal to Supreme Court—Magistrates Court Act
1930, s 214 817
5194 Appeals to Supreme Court—keeping exhibits 818

Part 5.4 Appeals to Court of Appeal

Division 5.4.1 Appeals to Court of Appeal—preliminary
5300A Definitions—pt 5.4 819

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5300 Meaning of court—pt 5.4 819
5301 Appeals to Court of Appeal—stay and reinstatement 819
5302 Appeals to Court of Appeal—security for costs 821
Division 5.4.2 Appeals to Court of Appeal—leave to appeal from
interlocutory orders
5310 Application—div 5.4.2 822
5311 Appeals to Court of Appeal—application for leave to appeal 822
5312 Appeals to Court of Appeal—time for filing application for leave to
appeal 822
5313 Appeals to Court of Appeal—application for leave to appeal to be
sealed 823
5314 Appeals to Court of Appeal—serving application for leave to appeal 823
5315 Appeals to Court of Appeal—response to application for leave to
appeal 824
Division 5.4.3 Appeals to Court of Appeal—leave to appeal out of
time from final judgments
5330 Definitions—div 5.4.3 825
5331 Application—div 5.4.3 825
5332 Appeals to Court of Appeal—application for leave to appeal out of time 826
5333 Appeals to Court of Appeal—filing application for leave to appeal out
of time 826
5334 Appeals to Court of Appeal—application for leave to appeal out of time
to be sealed 826
5335 Appeals to Court of Appeal—serving application for leave to appeal
out of time 827
5336 Appeals to Court of Appeal—response to application for leave to
appeal out of time 827
Division 5.4.4 Appeals to Court of Appeal—procedure generally
5400 Definitions—divs 5.4.4 to 5.4.6 829
5400A Meaning of case summary—div 5.4.4 830
5401 Application—divs 5.4.4 to 5.4.6 830
5402 Appeals to Court of Appeal—starting appeal 830
5403 Appeals to Court of Appeal—requirements for notice of appeal etc 830
5404 Appeals to Court of Appeal—parties to appeal 832
5405 Appeals to Court of Appeal—time for filing notice of appeal and case
summary 833

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5406 Appeals to Court of Appeal—notice of appeal to be sealed 834
5407 Appeals to Court of Appeal——numbering etc of appeals 834
5408 Appeals to Court of Appeal—date for settlement of appeal papers 834
5409 Appeals to Court of Appeal—serving notice of appeal and case
summary 834
5410 Appeals to Court of Appeal—notice of intention to respond 836
5411 Appeals to Court of Appeal—respondent taken to be served by filing
notice of intention to respond 836
5412 Appeals to Court of Appeal—amending notice of appeal 837
5413 Appeals to Court of Appeal—cross-appeal 838
5414 Appeals to Court of Appeal—application of certain rules to cross-
appeals 840
5415 Appeals to Court of Appeal—effect of failure to give notice of cross-
appeal 840
5416 Appeals to Court of Appeal—notice of contention 841
Division 5.4.5 Appeals to Court of Appeal—appeal papers and
hearing
5432 Appeals to Court of Appeal—settlement of appeal papers 843
5436 Appeals to Court of Appeal—setting appeal for hearing 844
5437 Appeals to Court of Appeal—changing appeal hearing date 844
5441 Appeals to Court of Appeal—absence of party 844
5442 Appeals to Court of Appeal—insufficient material 845
Division 5.4.6 Appeals to Court of Appeal—ending all or part of
appeal
5470 Appeals to Court of Appeal—abandonment of ground of appeal 846
5471 Appeals to Court of Appeal—discontinuance of appeal 846
5472 Appeals to Court of Appeal—competency of appeal 848
5473 Appeals to Court of Appeal—costs for failure to apply for appeal to be
struck out as incompetent 848
5474 Appeals to Court of Appeal—dismissal by consent 848
5475 Appeals to Court of Appeal—consent orders 849
Division 5.4.7 Appeals to Court of Appeal—convictions and
sentences
Subdivision 5.4.7.1 Appeals to Court of Appeal—convictions and
sentences preliminary
5500 Definitions—div 5.4.7 850

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Subdivision 5.4.7.2 Appeals to Court of Appeal—leave to appeal out of
time by convicted person
5505 Application—sdiv 5.4.7.2 850
5506 Appeals to Court of Appeal—application for leave to appeal out of time
against conviction or sentence 851
5507 Appeals to Court of Appeal—application for leave to appeal out of time
against conviction or sentence to be sealed 851
5508 Appeals to Court of Appeal—serving application for leave to appeal
out of time against conviction or sentence 852
5509 Appeals to Court of Appeal—response by DPP to application for leave
to appeal out of time against conviction or sentence 852
5510 Appeals to Court of Appeal—registrar’s decision on application for
leave to appeal out of time against conviction or sentence 853
Subdivision 5.4.7.3 Appeals to Court of Appeal—leave to appeal out of
time by DPP
5520 Application of div 5.4.3 to certain appeals by DPP 854
Subdivision 5.4.7.4 Appeals to Court of Appeal—convictions and
sentences generally
5530 Appeals to Court of Appeal—treating application for leave to appeal
out of time against conviction or sentence as appeal 854
5531 Appeals to Court of Appeal—grounds of appeal against conviction or
sentence 854
5532 Appeals to Court of Appeal—trial judge’s report for appeal against
conviction or sentence 855
5533 Appeals to Court of Appeal—service if convicted person in custody
and unrepresented 855
5534 Appeals to Court of Appeal—written case and presence if convicted
person appellant 856
5535 Appeals to Court of Appeal—order for production of offender 857
5536 Appeals to Court of Appeal—fine paid to be kept pending appeal 858
5537 Appeals to Court of Appeal—solicitor’s instructions to act for convicted
person ended 859
5538 Appeals to Court of Appeal—solicitor wants to withdraw from acting for
convicted person 860
5539 Appeals to Court of Appeal—notification of result of appeal against
conviction etc 861

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Division 5.4.8 Appeals to Court of Appeal—miscellaneous
5600 Appeals to Court of Appeal—power to amend proceedings in court
below 862
5601 Appeals to Court of Appeal—expediting appeals etc 862
5602 Appeals to Court of Appeal—directions about appeal etc 862
5603 Appeals to Court of Appeal—want of prosecution of appeal 863
5604 When Court of Appeal may be constituted by single judge—Supreme
Court Act 1933, s 37J (1) (h) 865
5605 Jurisdiction of Court of Appeal that may be exercised by single
judge—Supreme Court Act 1933, s 37J (3) 866
5606 Appeals to Court of Appeal—further evidence on appeal 866
5607 Appeals to Court of Appeal—keeping exhibits 867

Part 5.5 Orders to review Magistrates Court decisions

5700 Meaning of review order—pt 5.5 868
5701 Review orders—application for order 868
5702 Review orders—affidavits 869
5703 Review orders—service of applications 869
5704 Review orders—parties 869
5705 Review orders—service of review order 869
5706 Review orders—notice of intention to respond to review order 870
5707 Review orders—security for costs 870
5708 Review orders—stay 871
5709 Review orders—non-appearance of applicant 872
5710 Review orders—application to revoke review order 872

Part 5.6 Reference appeals

Division 5.6.1 Reference appeals—Supreme Court
5750 Definitions—div 5.6.1 873
5751 Reference appeals to Supreme Court—application for reference
appeal 873
5752 Reference appeals to Supreme Court—service of application etc for
reference appeal 874
5753 Reference appeals to Supreme Court—notice of intention to respond
by interested party 874

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5754 Reference appeals to Supreme Court—discontinuance of reference
appeal 875
5755 Reference appeals to Supreme Court—application of certain rules to
reference appeals 876
Division 5.6.2 Reference appeals—Court of Appeal
5770 Definitions—div 5.6.2 877
5771 Reference appeals to Court of Appeal—application for reference
appeal 878
5772 Reference appeals to Court of Appeal—service of application etc for
reference appeal 878
5773 Reference appeals to Court of Appeal—notice of intention to respond
by interested party 878
5774 Reference appeals to Court of Appeal—discontinuance of reference
appeal 879
5775 Reference appeals to Court of Appeal—application of certain rules to
reference appeals 880

Part 5.7 Special cases

Division 5.7.1 Questions referred—Supreme Court
5800 Application—div 5.7.1 881
5801 Definitions—div 5.7.1 882
5802 Question referred to Supreme Court—form 882
5803 Special case to Supreme Court—preparation and settling 883
5804 Special case to Supreme Court—person with legal disability 883
5805 Special case to Supreme Court—directions hearing 884
5806 Special case to Supreme Court—setting down for hearing 884
5807 Special case to Supreme Court—insufficient statement of case 884
5808 Special case to Supreme Court—court can draw inferences 885
5809 Special case to Supreme Court—agreement about damages and
costs 885
Division 5.7.2 Questions referred—Court of Appeal
5830 Application—div 5.7.2 885
5831 Definitions—div 5.7.2 886
5832 Question referred to Court of Appeal—form 886
5833 Special case to Court of Appeal—preparation and settling 887
5834 Special case to Court of Appeal—setting down for hearing 887

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5835 Special case to Court of Appeal—court can draw inferences 887
5836 Special case to Court of Appeal—agreement about damages and
costs 888

Part 5.8 Written cases

5850 Definitions—pt 5.8 889
5851 Application of pt 5.8 to div 5.6.1 etc 890
5852 Written cases—when used 891
5853 Written cases—appellant wants written case 891
5854 Written cases—respondent wants written case 892
5855 Written cases—filing etc written case for application 893
5856 Written cases—filing etc written case for appeal 894
5857 Written cases—form 895
5858 Written cases—inspection 896

Chapter 6 General rules for all proceedings

Part 6.1 Introductory provisions—ch 6

6000 Application—ch 6 897

Part 6.2 Applications in proceedings

6005 Definitions—pt 6.2 898
6006 Application—pt 6.2 898
6007 Application in proceeding—contents 899
6008 Application in proceeding—filing and service 901
6009 Application in proceeding—filing and service of supporting material 902
6010 Application in proceeding—absence of party 902
6011 Application in proceeding—dismissal or adjournment if application not
served etc 902
6012 Application in proceeding—adjournment generally 903
6013 Application in proceeding—orders by consent without attendance 903
6014 Application in proceeding—further hearing 904
6015 Application in proceeding—application under r 40 905
6016 Application in proceeding—oral application 905

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Part 6.2A Human rights proceedings
Division 6.2A.1 Preliminary
6020 Terms used in Human Rights Act 2004 906
6021 Application—pt 6.2A 906
Division 6.2A.2 Notice to Attorney-General and commission
6030 Application—div 6.2A.2 907
6031 Notice—human rights proceedings 907
6032 Notice—direction by court 908
6033 Contents of notice of human rights matter 908
6034 Directions hearing—human rights proceedings 909
Division 6.2A.3 Intervention of commission
6040 Human rights commissioner—application for leave to intervene 909

Part 6.2B Intervention of Attorney-General in

proceedings
6045 Attorney-General—notice of intervention 911

Part 6.3 Documents

Division 6.3.1 General provisions about documents for filing
6100 Application—div 6.3.1 912
6101 Documents—compliance with approved form 912
6102 Documents—general heading style 913
6103 Documents—layout etc 914
6104 Documents—use of copies 915
6105 Documents—use of figures 915
6106 Documents—signing 915
6107 Documents—alterations 916
Division 6.3.2 Filing documents
6120 Filing documents—number of copies 917
6121 How documents may be filed 918
6122 Filing documents personally 918
6123 Filing documents by post 919
6124 Filing documents electronically 920
6125 Practice notes about filing 921

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6126 Date of filing 921
Division 6.3.2A Documents filed electronically
6130 Keeping original documents 923
6131 Signing, sealing and stamping documents filed electronically 923
6132 Issue of documents electronically by court 924
Division 6.3.3 Rejecting filed documents
6140 Rejecting documents—noncompliance with rules etc 924
6141 Rejecting documents—inconvenient address for service 925
6142 Rejecting documents—abuse of process etc 925
6143 Rejecting document—registrar to give notice etc 926
6144 Rejecting document—costs 926
6145 Filed documents initially rejected 926

Part 6.4 Associate judge

6202 Associate judge referring proceeding or issue to judge 928

Part 6.5 Registrar

6250 Jurisdiction exercisable by registrar of Supreme Court 929
6251 Jurisdiction exercisable by registrar of Magistrates Court 935
6252 Registrar’s powers—postponement of hearing 942
6253 Registrar’s powers—subpoenas 943
6254 Order that jurisdiction in proceeding be exercised by judicial officer
other than registrar 943
6255 Registrar referring proceeding or issue to judicial officer 944
6256 Appeals from registrar’s orders etc 945

Part 6.6 Registry

6300 Office hours 947
6301 Registrar’s duties 947
6302 Cause book 948
6303 Registrar to keep seals 948
6304 Documents—sealing and stamping 949
6305 Issue of commissions 949
6306 Duplicate sealed etc documents 949
6307 Delegation by registrar 950

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Part 6.7 Time
6350 Time—certain days excluded in working out 951
6351 Time—extending and shortening by court order 951
6352 Time—fixing by court order 952

Part 6.8 Service

Division 6.8.1 Service—preliminary
6400 Application—pt 6.8 953
6401 Service of filed documents 954
Division 6.8.2 Personal service
6405 How document is personally served 954
Division 6.8.3 Service—Magistrates Court
6410 Application—div 6.8.3 955
6411 Service on individuals generally—Magistrates Court 955
6412 Service of originating process by post—Magistrates Court 956
6413 Doubtful service—Magistrates Court 957
Division 6.8.4 Ordinary service
6420 Ordinary service—address for service 958
6421 Service by filing 959
Division 6.8.5 Service—particular cases
6430 Service in Australia but outside ACT 959
6431 Service on corporations—generally 960
6432 Service on corporations—additional ways for all corporations 961
6433 Service of originating process on partnership 962
6434 Service on defendant operating under business name 963
6435 Service on children 964
6436 Service on people with mental disabilities 965
6437 Service on detainees 965
6438 Service if no-one found at party’s address for service 966
6439 Service of originating application to recover unoccupied land 967
Division 6.8.6 Time of service
6450 Time of service at address for service 968
Division 6.8.7 Service—other
6460 Substituted service 969

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6461 Informal service 970
6462 Service on agent 970
6463 Service under contract 971
6464 Acceptance of service by solicitor 971
6465 Special requirements for service by fax 972
6466 Email service—other matters 972
6467 Proof of service 974
6468 Identity of person served 976
6469 Change of address for service 976
Division 6.8.8 Service of subpoenas and notices instead of
subpoenas—general
6480 Definitions—div 6.8.8 977
6481 Subpoena—service on solicitor 977
6482 Subpoena—service on special witness 977
6483 Special witness—notice instead of subpoena 979
6484 Special witness—no shortening of time for service 979
Division 6.8.9 Service out of Australia
6500 Meaning of Australia—div 6.8.9 980
6501 . 980
6502 Service of originating process without leave 980
6503 Service of originating process with leave 984
6504 Court’s discretion whether to assume jurisdiction 985
6505 Notice to person served outside Australia 986
6506 Time for filing notice of intention to respond 986
6507 Leave to proceed if notice of intention to respond not filed 986
6508 Service of other documents outside Australia 987
6509 Mode of service 987
Division 6.8.11 Service of foreign legal process in the ACT
6540 Letter of request from foreign tribunal—procedure 987
6541 Orders for substituted service etc for div 6.8.11 989
6542 Noncompliance with div 6.8.11 989
Division 6.8.12 Service under the Hague Convention
Subdivision 6.8.12.1 Preliminary
6550 Definitions—div 6.8.12 990

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6551 Rules under this division prevail 992
Subdivision 6.8.12.2 Service abroad of local judicial documents
6552 Application—subdiv 6.8.12.2 993
6553 Application for request for service abroad 993
6554 How application to be dealt with 995
6555 Procedure on receipt of certificate of service 996
6556 Payment of costs 997
6557 Evidence of service 998
Subdivision 6.8.12.3 Default judgment following service abroad of initiating
process
6558 Application—subdiv 6.8.12.3 998
6559 Restriction on power to enter default judgment if certificate of service
filed 998
6560 Restriction on power to enter default judgment if certificate of service
not filed 1000
6561 Setting aside default judgment 1001
Subdivision 6.8.12.4 Local service of foreign judicial documents
6562 Application—subdiv 6.8.12.4 1001
6563 Certain documents to be referred back to Attorney-General of the
Commonwealth 1002
6564 Service of foreign judicial documents etc 1003
6565 Affidavit about service 1004

Part 6.9 Subpoenas

6600 Definitions—pt 6.9 1006
6601 Issuing subpoena 1006
6601A Issuing subpoena to produce—originating claim 1007
6601B Issuing subpoena to produce—originating application 1008
6602 Form of subpoena 1008
6603 Subpoena—leave to serve late 1009
6603A Subpoena—change of date for attendance of production 1011
6604 Setting aside subpoena or other relief 1011
6605 Service of subpoena 1012
6606 Compliance with subpoena 1012

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6607 Production of subpoenaed document etc otherwise than on
attendance 1013
6608 Removal, return, inspection etc of subpoenaed documents and things 1014
6609 Inspection of, and dealing with, subpoenaed documents and things
produced otherwise than on attendance 1014
6610 Disposal of subpoenaed documents and things produced 1016
6611 Costs and expenses of compliance with subpoena 1017
6612 Failure to comply with subpoena—contempt of court 1018
6613 Documents and things in custody of court 1019
6614 Application of pt 6.9—subpoena under Commercial Arbitration Act 1019
6615 Subpoena issued by ACAT—leave to serve outside ACT 1020
6615A Examination summons issued by ACT Integrity Commission—leave to
serve outside ACT 1022

Part 6.10 Evidence

Division 6.10.1 General—pt 6.10
6700 Way evidence given—civil proceedings 1024
6701 Evidence on affidavit by agreement—civil proceedings 1025
6702 Evidence in another civil proceeding etc 1025
6703 Evidence by telephone etc 1026
6704 Plans, photographs, video or audio recordings and models 1027
Division 6.10.2 Affidavits
6710 Affidavit—form 1027
6711 Affidavit—contents 1028
6712 Affidavit—annexures and exhibits 1029
6713 Affidavit—document included in 1031
6714 Affidavit—when may be taken 1031
6715 Affidavit—taking of 1031
6716 Affidavit—certificate of reading or signature for person making 1032
6717 Affidavit—alterations in 1034
6718 Affidavit—filing and service 1035
6719 Affidavit—irregular in form 1035
6720 Affidavit—scandalous matter etc 1036
6721 Affidavit—cross-examination of maker 1036
6722 Affidavit—taken before party 1037

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Division 6.10.3A Notice to produce
6748 Notice to produce 1038
Division 6.10.4 Notices under Evidence Act
6750 Evidence of previous representation notice 1039
6751 Objection to hearsay evidence notice—civil proceedings 1039
6752 Tendency evidence notice 1039
6753 Coincidence evidence notice 1040
Division 6.10.5 Exhibits, documents and things
6760 Meaning of subpoenaed document or thing—div 6.10.5 1040
6761 Registrar to keep record of proceeding 1040
6762 Custody of exhibits after proceeding 1041
6763 Duty of parties to claim exhibits 1041
6765 Requirement to give or send exhibit 1043
6766 Disposal of exhibits 1043
6767 Power to allow removal of exhibits etc 1044
Division 6.10.6 Taking evidence at trial from outside ACT but in
Australia by audiovisual link or audio link
6800 Application for direction under Evidence (Miscellaneous Provisions)
Act, s 20 1045
6801 Directions for Evidence (Miscellaneous Provisions) Act, s 20 1046
Division 6.10.8 Taking evidence otherwise than at trial
6810 Definitions—div 6.10.8 1047
6811 Effect of court directions for examination order 1047
6812 Application of div 6.10.8 to letter of request 1048
6813 Order for taking evidence otherwise than at trial 1048
6814 When examination order may be made 1049
6815 Application for examination order 1050
6816 Appointment of examiner 1050
6817 Documents for examiner 1050
6818 Time and place of examination etc 1051
6819 Conduct of examination 1051
6820 Examination of additional people 1052
6821 Objections by party or person being examined 1053
6822 Recording evidence of examination 1054

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6823 Authentication and filing of deposition of examination etc 1054
6824 Special report on examination 1055
6825 Default of witness at examination 1055
6826 Costs of examination 1056
6827 Witness expenses for witness at examination 1056
6828 Admissibility of deposition of examination 1056
6829 Letter of request 1057
6830 Use of evidence taken in examination 1058
6831 Use of evidence taken in an examination—subsequent proceedings 1060
6832 Amendment and revocation of examination orders 1061
6833 Exclusion of evidence in criminal proceeding 1062
Division 6.10.9 Taking evidence for Australian and foreign courts and
tribunals
6840 Definitions—div 6.10.9 1062
6841 Application—div 6.10.9 1063
6842 Application for div 6.10.9 order 1064
6843 Order relating to taking evidence for Australian or foreign court or
tribunal 1064
6844 Div 6.10.9 order for criminal proceeding 1065
6845 Appointment of examiner for div 6.10.9 1066
6846 Attendance by div 6.10.9 order applicant at examination 1066
6847 Procedure for taking evidence under div 6.10.9 order 1066
6848 Keeping of exhibits at div 6.10.9 examination 1067
6849 Certificate of order and depositions—div 6.10.9 examination 1067
6850 Privilege of witnesses—div 6.10.9 examination 1067
6851 Privilege of witnesses—unsupported claim etc for div 6.10.9
examination 1068

Part 6.10A Trans-Tasman proceedings

Division 6.10A.1 Trans-Tasman proceedings—general
6860 Terms in Trans-Tasman Proceedings Act 1070
Division 6.10A.2 Trans-Tasman proceedings—orders under
Trans-Tasman Proceedings Act
6861 Trans-Tasman proceedings—originating application 1070
6862 Trans-Tasman proceedings—applications in proceedings 1071

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6863 Trans-Tasman proceedings—application for interim relief 1071
Division 6.10A.3 Trans-Tasman proceedings—service of subpoenas in
New Zealand
6864 Application—div 6.10A.3 1072
6865 Trans-Tasman proceedings—application for leave to serve subpoena
in New Zealand 1072
6866 Trans-Tasman proceedings—application to set aside subpoena
served in New Zealand 1074
6867 Trans-Tasman proceedings—noncompliance with subpoena served in
New Zealand 1074
Division 6.10A.4 Trans-Tasman proceedings—remote appearances
6868 Trans-Tasman proceedings—application for order for use of audio link
or audiovisual link from New Zealand 1076
Division 6.10A.5 Trans-Tasman proceedings—enforcement of NZ
judgments
6869 Trans-Tasman proceedings—notice of registration of NZ judgment 1076
6870 Trans-Tasman proceedings—application for extension of time to give
notice of registration of NZ judgment 1077
6871 Trans-Tasman proceedings—application to set aside registration of
NZ judgment 1077
6872 Trans-Tasman proceedings—application for stay of enforcement of
registered NZ judgment 1078
6873 Trans-Tasman proceedings—application for extension of time to apply
for stay of enforcement of registered NZ judgment 1078

Part 6.11 Miscellaneous—ch 6

6900 Power to make orders 1080
6901 Orders may be made on conditions 1080
6902 Leave may be given on conditions 1080
6903 References to court acting on its own initiative 1080
6904 Mandatory order to registrar etc 1080
6905 Notices must be written 1081
6906 Mistakes in orders or court certificates 1081
6907 Power to make practice notes 1081
6908 Use of electronic devices in courtrooms 1082

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Chapter 7 Transitional

Part 7.1 Transitional—Supreme Court

7000 Transitional—existing proceedings in Supreme Court on 1 July 2006 1084
7002 Transitional—construction of outdated references to Supreme Court
rules etc 1084

Part 7.2 Transitional—Magistrates Court

7011 Transitional—existing proceedings in Magistrates Court on 1 January
2007 1086

Schedule 1 Expert witness code of conduct 1087

1.1 Application of code 1087
1.2 General duty to court 1087
1.3 Content of report 1087
1.4 Supplementary report following change of opinion 1089
1.5 Duty to comply with court’s directions 1089
1.6 Experts’ conference etc 1089

Schedule 2 Interest rates 1091

Part 2.1 Interest up to judgment 1091
2.1 Interest up to judgment after 30 June 2010—Supreme Court 1092
2.2 Interest up to judgment after 30 June 2010—Magistrates Court 1093
Part 2.2 Interest after judgment 1094
2.3 Interest on judgment after 30 June 2010—Supreme Court 1094
2.4 Interest on judgment after 30 June 2010—Magistrates Court 1095

Schedule 3 Costs amount—debts, liquidated demands,

company windings-up, enforcement orders
and certificates of registration 1097
Part 3.1 Claim for debt or liquidated demand 1097
Part 3.2 Default judgment 1097

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Part 3.3 Company winding-up 1098
Part 3.4 Enforcement orders 1098
Part 3.5 Certificate of registration 1099

Schedule 4 Scale of costs 1100

Part 4.1 Scale of costs—general 1100
4.1 Costs—general care and conduct 1100
4.2 Costs—registrar’s discretion 1101
4.3 Costs—letters sent by email 1101
4.4 Costs—allowance on affidavits to include attendances 1101
4.5 Costs—affidavit made by 2 or more people etc 1101
4.6 Costs—documents to be served together 1102
4.7 Costs—agency correspondence 1102
4.8 Costs—attendance to instruct counsel 1102
4.9 Costs—parties with same solicitor 1103
4.10 Costs—counsel drawing and settling documents 1103
4.11 Costs—premature brief 1103
4.12 Costs—transitional 1104
Part 4.2 Scale of costs—items 1105

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Division 4.2.1 Instructions
Division 4.2.2 Drawing
Division 4.2.3 Engrossing
Division 4.2.4 Copies
Division 4.2.5 Perusal
Division 4.2.6 Attendances
Division 4.2.7 Letters
Division 4.2.8 Witness expenses
Division 4.2.9 Disbursements

Schedule 5 Jurisdiction of registrar 1113

Part 5.1 Jurisdiction under rules in relation to applications in
proceedings not exercisable by registrar of Supreme
Court 1113
Part 5.2 Jurisdiction related to Corporations Act exercisable by
registrar of Supreme Court 1124
Part 5.3 Jurisdiction related to ASIC Act exercisable by
registrar of Supreme Court 1140
Part 5.4 Jurisdiction under rules in relation to applications in
proceedings not exercisable by registrar of
Magistrates Court 1141

Schedule 6 Corporations Rules 1146

Part 6.1 Corporations Rules—preliminary 1146
1.1 Name of rules 1146
1.2 . 1146
1.3 Application of sch 6 and provisions of these rules 1146
1.4 Terms used in Corporations Act 1147
1.5 Definitions—sch 6 1148
1.6 References to rules 1149
1.7 Substantial compliance with forms 1149
1.8 Court’s power to give directions 1149

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1.9 Calculation of time 1149
1.10 Extending and shortening of time 1150
Part 6.2 Proceedings generally 1151
2.1 Title of documents in a proceeding 1151
2.2 Originating process and interlocutory process 1151
2.3 Setting of hearing 1152
2.4 Supporting affidavits 1152
2.4A Application for order setting aside statutory demand (Corporations Act,
s 459G) 1153
2.5 Affidavits made by creditors 1153
2.6 Form of affidavits 1154
2.7 Service of originating process or interlocutory process and supporting
affidavit 1154
2.8 Notice of certain applications to be given to ASIC 1155
2.9 Notice of appearance (Corporations Act, s 465C) 1156
2.10 Intervention in proceeding by ASIC (Corporations Act, s 1330) 1157
2.12 Proof of publication 1157
2.13 Leave to creditor, contributory or officer to be heard 1158
2.14 Inquiry in relation to corporation’s debts etc 1159
2.15 Meetings ordered by the court 1159
Part 6.3 Compromises and arrangements in relation to Part 5.1
bodies 1160
3.1 Application—pt 1.3 1160
3.2 Nomination of chairperson for meeting 1160
3.3 Order for meetings to identify proposed scheme 1161
3.4 Notice of hearing (Corporations Act, s 411 (4) and s 413 (1)) 1161
3.5 Copy of order approving compromise or arrangement to be lodged
with ASIC 1162
Part 6.4 Receivers and other controllers of corporation
property (Corporations Act, pt 5.2) 1163
4.1 Inquiry into conduct of controller (Corporations Act, s 423) 1163
Part 6.5 Winding-up proceedings (including oppression
proceedings where winding-up is sought) 1164
5.1 Application—pt 6.5 1164

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5.2 Affidavit accompanying statutory demand (Corporations Act, s
459E (3)) 1164
5.3 Application for leave to apply for winding-up in insolvency
(Corporations Act, s 459P (2)) 1164
5.4 Affidavit in support of application for winding-up (Corporations Act, s
459P, s 462, s 464) 1165
5.5 Consent of liquidator (Corporations Act, s 532 (9)) 1165
5.6 Notice of application for winding-up 1166
5.7 Applicant to make copies of documents available 1167
5.8 Discontinuance of application for winding-up 1167
5.9 Appearance before registrar 1167
5.10 Order substituting plaintiff in application for winding-up (Corporations
Act, s 465B) 1167
5.11 Notice of winding-up order and appointment of liquidator 1168
Part 6.6 Provisional liquidators (Corporations Act, pt 5.4B) 1169
6.1 Appointment of provisional liquidator (Corporations Act, s 472) 1169
6.2 Notice of appointment of provisional liquidator 1169
Part 6.7 Liquidators 1171
7.1 Resignation of liquidator (Corporations Act, s 473 (1)) 1171
7.2 Filling vacancy in office of liquidator (Corporations Act, s 473 (7), s
502) 1171
7.3 Report to liquidator as to company’s affairs (Corporations Act, s 475) 1171
7.4 Liquidator to file certificate and copy of settled list of contributories
(Corporations Act, s 478) 1172
7.5 Release of liquidator and deregistration of company (Corporations Act,
s 480 (c) and (d)) 1172
7.6 Objection to release of liquidator 1175
7.7 Report on accounts of liquidator (Corporations Act, s 481) 1176
7.8 Application for payment of call (Corporations Act, s 483 (3) (b)) 1176
7.9 Distribution of surplus by liquidator with special leave of the court
(Corporations Act, s 488 (2)) 1177
7.10 Powers delegated to liquidator by the court (Corporations Act, s 488) 1177
7.11 Inquiry into conduct of liquidator (Corporations Act, s 536 (1) and (2)) 1177
Part 6.8 Special managers (Corporations Act, pt 5.4B) 1179
8.1 Application for appointment of special manager (Corporations Act, s
484) 1179

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8.2 Security given by special manager (Corporations Act, s 484) 1179
8.3 Special manager’s receipts and payments (Corporations Act, s 484) 1180
Part 6.9 Remuneration of office-holders 1181
9.1 Remuneration of receiver (Corporations Act, s 425 (1)) 1181
9.2 Determination by court of remuneration of administrator (Corporations
Act, s 449E (1) (c) and (1A) (c)) 1183
9.2A Review of remuneration of administrator (Corporations Act, s 449E (2))1185
9.3 Remuneration of provisional liquidator (Corporations Act, s 473 (2)) 1187
9.4 Determination by court of liquidator’s remuneration (Corporations Act,
s 473 (3) (b) (ii)) 1190
9.4A Review of remuneration of liquidator (Corporations Act, s 473 (5) and
(6) and s 504 (1)) 1192
9.5 Remuneration of special manager (Corporations Act, s 484 (2)) 1195
Part 6.10 Winding-up generally 1198
10.1 Determination of value of debts or claims (Corporations Act, s
554A (2)) 1198
10.2 Disclaimer of contract (Corporations Act, s 568 (1A)) 1198
10.3 Winding-up Part 5.7 bodies (Corporations Act s 583, s 585) and
registered schemes (Corporations Act, s 601ND) 1198
Part 6.11 Examinations and orders (Corporations Act, pt 5.9,
div 1 and div 2) 1199
11.1 Meaning of examination summons in pt 6.11 1199
11.2 Application for examination or investigation under Corporations Act, s
411 (9) (b), s 423 or s 536 (3) 1199
11.3 Application for examination summons (Corporations Act, s 596A, s
596B) 1200
11.4 Service of examination summons 1201
11.5 Discharge of examination summons 1201
11.6 Filing of record of examination (Corporations Act, s 597 (13)) 1201
11.7 Authentication of transcript of examination (Corporations Act,
s 597 (14)) 1202
11.8 Inspection of record or transcript of examination or investigation under
Corporations Act, s 411, s 423 or s 536 1202
11.9 Entitlement to record or transcript of examination held in public 1202
11.10 Default in relation to examination 1203

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11.11 Service of application for order in relation to breaches etc by person
concerned with corporation (Corporations Act, s 598) 1204
Part 6.11A Warrants (Corporations Act, s 486B and pt 5.4B, div 3,
subdiv B) 1205
11A.1 Arrest of person (Corporations Act, s 486B) 1205
Part 6.12 Takeovers, acquisitions of shares and other matters
(Corporations Act, chs 6, 6A, 6B, 6C, 6D and 7) and
securities (Corporations Act, ch 7) 1206
12.1 Service on ASIC in relation to proceedings under Corporations Act, ch
6, 6A, 6B, 6C, 6D or 7 1206
12.1A Reference to court of question of law arising in proceeding before
Takeovers Panel (Corporations Act, s 659A) 1206
12.1B Notification to court if proceeding started before end of takeover bid
period (Corporations Act, s 659B) 1206
12.2 Application for summons for appearance of person (Corporations Act,
s 1071D (4)) 1207
12.3 Application for orders relating to refusal to register transfer or
transmission of securities (Corporations Act, s 1071F) 1207
Part 6.13 . 1208
Part 6.14 Powers of courts (Corporations Act, pt 9.5) 1209
14.1 Appeal from act, omission or decision of administrator, receiver or
liquidator etc (Corporations Act, s 554A, s 1321) 1209
Part 6.15 Proceedings under ASIC Act 1211
15.1 Reference to court of question of law arising at hearing of ASIC (ASIC
Act, s 61) 1211
15.2 . 1211
15.3 Application for inquiry (ASIC Act, s 70, s 201, s 219) 1211
Part 6.15A Proceedings under the Cross-Border Insolvency Act 1212
Division 6.15A.1 Introduction
15A.1 Application—pt 6.15A and other rules 1212
15A.2 Terms used in Cross-Border Insolvency Act 1212
Division 6.15A.2 Recognition of a foreign proceeding
15A.3 Application for recognition 1214
15A.4 Application for provisional relief under Model Law, art 19 1215
15A.5 Liquidator’s consent to act 1215

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15A.6 Notice of filing application for recognition 1216
15A.7 Notice of order for recognition, withdrawal etc 1216
15A.8 Relief after recognition 1217
15A.9 Application to modify or terminate order for recognition or other relief 1218
Division 6.15A.3 Cooperation with foreign courts and representatives
15A.10 Cooperation involving court to be under coordination agreement 1219
15A.11 Application for approval of coordination agreement 1221
15A.12 Appointment of independent intermediary 1222
Division 6.15A.4 Concurrent proceedings
15A.13 Starting proceeding after recognition of a foreign main proceeding 1223
Division 6.15A.5 General
15A.14 Proof of orders or documents of foreign courts 1223
15A.15 Service in accordance with service list 1224
Part 6.16 . 1225

Dictionary 1226

Endnotes
1 About the endnotes 1252
2 Abbreviation key 1252
3 Legislation history 1253
4 Amendment history 1261
5 Earlier republications 1387

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 Australian Capital Territory

Court Procedures Rules 2006

made under the

Court Procedures Act 2004

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Chapter 1 Preliminary

Rule 1

Chapter 1 Preliminary
1 Name of rules
These rules are the Court Procedures Rules 2006.

3 Overview of rules
The note to this rule provides a general overview of these rules.
Note on general overview of rules
Chapter 1 Preliminary
Ch 1 deals with the application of these rules and dispensing with compliance. It
also contains formal provisions.
Chapter 2 Civil proceedings generally
Ch 2 contains rules about civil proceedings generally, including the steps in a civil
proceeding eg how to start a civil proceeding.
Chapter 3 Particular civil proceedings
Ch 3 contains rules about particular civil proceedings, eg adoption proceedings
and administration and probate proceedings in the Supreme Court.
Chapter 4 Criminal proceedings
Ch 4 contains rules about criminal proceedings, including the steps in a criminal
proceeding eg arraignments.
Chapter 5 Appellate proceedings
Ch 5 contains rules about appellate proceedings, including the steps in an
appellate proceeding eg when appeal papers must be filed.
Chapter 6 General rules for all proceedings
Ch 6 contains general rules that apply to all proceedings, eg rules about service
and documents.
Chapter 7 Transitional
Ch 7 deals with the application of these rules to existing proceedings and contains
other transitional provisions.
Schedule 1 Expert witness code of conduct
Sch 1 sets out the code of conduct applying to expert witnesses.

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 Preliminary Chapter 1

Rule 4

Schedule 2 Interest rates

Sch 2 sets out the interest rates applying to judgments.
Schedule 3 Costs amount—debts and liquidated claims
Sch 3 sets up the prescribed costs amount for claims for debts and liquidated
demands and for default judgments.
Schedule 4 Scale of costs
Sch 4 sets out the scale of costs.
Schedule 5 Jurisdiction of registrar
Sch 5 contains provisions about the jurisdiction of the registrar (see also pt 6.5).
Schedule 6 Corporations Rules
Sch 6 contains rules for proceedings under the corporations law.
Dictionary
The dictionary defines certain terms used in these rules.

4 Application of rules
(1) Unless a territory law otherwise provides, these rules apply to all
proceedings in the Supreme Court and Magistrates Court.
Note A territory law includes these rules (see Legislation Act, s 98).

(2) Also, a provision of these rules mentioned in an item in the following

table, column 2 does not apply to a proceeding in the Supreme Court
until the provision mentioned in the item, column 3 is repealed or
otherwise ceases to apply for the purpose of proceedings in that court.

Table 4.1 Provisions with delayed application to Supreme Court

proceedings
column 1 column 2 column 3
item provision of these rules provision of other law

1 division 2.11.7 Civil Law (Wrongs)

(Mediation and Act 2002, part 15.1
neutral evaluation) (Mediation and neutral
evaluation)

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Chapter 1 Preliminary

Rule 5

(3) Subrule (2) (including table 4.1) and this subrule expire on the day
the last of the provisions mentioned in the table, column 3 is repealed
or otherwise ceases to apply for the purpose of proceedings in the
Supreme Court.

5 References to court, judicial officer etc

(1) In a provision of these rules, a reference to the court is a reference to
the Supreme Court, the Magistrates Court or both, whichever is
appropriate in the context of the provision.
(2) Also, in these rules, a reference to the court—
(a) for the exercise of jurisdiction given to the associate judge under
a territory law—includes a reference to the associate judge; and
(b) for the exercise of jurisdiction given to the registrar under a
territory law—includes a reference to the registrar.
Note 1 A territory law includes these rules (see Legislation Act, s 98).
Note 2 Pt 6.4 deals with the jurisdiction of the associate judge and pt 6.5 deals
with the jurisdiction of the registrar (see also sch 5).

(3) In these rules, a reference to a judicial officer is a reference to—

(a) in relation to the Supreme Court—any of the following:
(i) a judge;
(ii) as far as these rules provide for the exercise of the court’s
jurisdiction by the associate judge, the associate judge;
(iii) as far as these rules provide for the exercise of the court’s
jurisdiction by the registrar, the registrar; and
(b) in relation to the Magistrates Court—any of the following:
(i) a magistrate;
(ii) as far as these rules provide for the exercise of the court’s
jurisdiction by the registrar, the registrar.

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 Preliminary Chapter 1

Rule 6

(4) In these rules, a reference to the registrar in relation to a court is a

reference to the registrar or a deputy registrar of the court.
(5) In a provision of these rules, a reference to the deputy registrar is a
reference to a deputy registrar of the Supreme Court or a deputy
registrar of the Magistrates Court, whichever is appropriate in the
context of the provision.
(6) In a provision of these rules, a reference to the registry is a reference
to the registry of the Supreme Court or Magistrates Court, whichever
is appropriate in the context of the provision.

6 Dispensing with rules

(1) The court may, by order, dispense with the application of a provision
of these rules to a particular proceeding, before or after the provision
applies and on any conditions it considers appropriate.
Examples
1 Rule 111 (5) (Conditional notice of intention to respond) provides that, not
later than 14 days after the day a conditional notice of intention to respond
becomes an unconditional notice of intention to respond, the defendant must
file a defence. The court may order that the defendant must file the defence
not later than 21 days instead.
2 Rule 6009 (Application in proceeding—filing and service of supporting
material) requires the supporting material for an application in a proceeding to
be filed and served with the application. The court may order that the applicant
may file the supporting material at time other than when the application is
filed.
3 Rule 6350 (3) (Time—certain days excluded in working out) provides that any
day in the period beginning on 25 December and ending on 1 January is
excluded in working out when a thing must or may be, or is, done. In an urgent
matter, the court may order that those days are not excluded when working out
when a document is served.

(2) If an application for an order under this rule in relation to a proceeding

is made during the proceeding or after judgment is given in the
proceeding, the application must be made in accordance with part 6.2
(Applications in proceedings).

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Chapter 1 Preliminary

Rule 7

(3) Without limiting rule 6016 (Application in proceeding—oral

application), an application for a decision or order under this rule may
be made orally, unless the court otherwise orders on its own initiative.
(4) For the Supreme Court, if an application for an order under this rule
in relation to a proceeding is made before the proceeding starts, the
application must be made by originating application.
(5) An express reference in a provision of these rules to the court
dispensing with the application (however expressed) of a provision of
these rules (an affected provision) does not, by implication, limit the
operation of this rule to the affected provision or to any other
provision of these rules.

7 Dictionary
The dictionary at the end of these rules is part of these rules.
Note 1 The dictionary at the end of these rules defines certain terms used in these
rules, and includes references (signpost definitions) to other terms
defined elsewhere in these rules.
For example, the signpost definition ‘earnings redirection order—see
rule 2350.’ means that the term ‘earnings redirection order’ is defined in
that rule.
Note 2 A definition in the dictionary (including a signpost definition) applies to
the entire rules unless the definition, or another provision of these rules,
provides otherwise or the contrary intention otherwise appears (see
Legislation Act, s 155 and s 156 (1)).

8 Notes
A note included in these rules is explanatory and is not part of these
rules.
Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

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 Civil proceedings generally Chapter 2
Introductory provisions—ch 2 Part 2.1

Rule 20

Chapter 2 Civil proceedings generally

Part 2.1 Introductory provisions—ch 2

20 Meaning of plaintiff and defendant
(1) For a proceeding (other than an application in the proceeding or a
proceeding on a counterclaim or third-party notice)—
(a) a reference in these rules to the plaintiff is a reference to the
party claiming relief; and
(b) a reference in these rules to the defendant is a reference to the
party against whom relief is sought or who otherwise responds
to the originating process.
Note 1 Third-party notice includes a fourth-party notice, a fifth-party notice etc
(see r 322 (2) (c)).
Note 2 Rule 6007 (Application in proceeding—contents) requires an application
in a proceeding to identify the person making the application and each
person against whom relief is sought.

(2) For a proceeding on a counterclaim or third-party notice (the

process)—
(a) a reference in these rules to the plaintiff includes a reference to
the party who files and serves the process; and
(b) a reference in these rules to the defendant includes a reference
to the person on whom the process is served.

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Chapter 2 Civil proceedings generally
Part 2.1 Introductory provisions—ch 2

Rule 22

22 Application—ch 2
(1) This chapter applies to every proceeding in the Supreme Court or
Magistrates Court to which these rules apply.
Note 1 Rule 4 (Application of rules) deals with the proceedings to which these
rules apply.
Note 2 This chapter has been disapplied (with exceptions) in relation to family
and personal violence proceedings (see r 3802) and workers
compensation proceedings (see r 3903).
Note 3 The Magistrates Court includes the Childrens Court (see Magistrates
Court Act 1930, s 287).

(2) However, this chapter applies to a criminal proceeding, forensic

proceeding or appellate proceeding only as far as a territory law
provides that it applies.
Note 1 Criminal proceeding and appellate proceeding are defined in the
dictionary.
Note 2 Forensic proceeding is defined in rule 4800.
Note 3 Ch 4 deals with criminal and forensic proceedings and ch 5 deals with
appellate proceedings.
Note 4 A territory law includes these rules or a provision of these rules (see
Legislation Act, s 98 and s 97 (1), def ACT law).

(3) Also, this chapter does not apply to another proceeding as far as—
(a) this chapter provides that it does not apply to the proceeding; or
(b) chapter 3 (Particular civil proceedings) provides that this chapter
does not apply to the proceeding or otherwise makes provision
for the proceeding inconsistent with this chapter; or
(c) another territory law (including another provision of these rules)
provides that this chapter does not apply to the proceeding.
Note Ch 6 has provisions applying to all proceedings (see r 6000
(Application—ch 6).

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 Civil proceedings generally Chapter 2
Starting civil proceedings Part 2.2
How civil proceedings are started Division 2.2.1
Rule 30

Part 2.2 Starting civil proceedings

Division 2.2.1 How civil proceedings are started
30 Who may start and carry on a proceeding
(1) An individual may start and carry on a proceeding in the court—
(a) in person; or
(b) by a solicitor acting for the individual.
Note Rule 275 (1) (Person with legal disability—litigation guardian to start
proceeding etc) provides that a person with a legal disability may start or
defend, and carry on, a proceeding only by the person’s litigation
guardian.

(2) However, a relator may only start and carry on a proceeding by a

solicitor acting for the relator.
Note A relator is a person who starts and carries on a proceeding in the
Attorney-General’s name. A person may bring a proceeding as relator
with the Attorney-General’s permission (or fiat) where the proceeding
involves the public interest and the person would otherwise not have
standing to bring the proceeding.

(3) A solicitor may act for a relator in a proceeding only if—

(a) the relator has given the solicitor written authority to act in the
proceeding; and
(b) the authority is filed in the court.
(4) A corporation may start and carry on a proceeding in the Supreme
Court—
(a) by a solicitor acting for the corporation; or
(b) with the court’s leave, by an officer or employee of the
corporation authorised by the corporation to represent it.

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Chapter 2 Civil proceedings generally
Part 2.2 Starting civil proceedings
Division 2.2.1 How civil proceedings are started
Rule 30

(5) If an application for leave under subrule (4) is made during the
proceeding or after judgment is given in the proceeding, the
application must be made in accordance with part 6.2 (Applications
in proceedings).
(6) For the Supreme Court, if an application for leave under subrule (4)
is made before the proceeding starts, the application must be made by
originating application.
(7) A corporation may start and carry on a proceeding in the Magistrates
Court—
(a) by a solicitor acting for the corporation; or
(b) by an officer or employee of the corporation authorised by the
corporation to represent it.
(8) An officer or employee mentioned in subrule (7) must file with the
first document that is filed in the court for the corporation in the
proceeding—
(a) an affidavit stating—
(i) the position the person holds in the corporation; and
(ii) that the person has been authorised by the corporation to
represent the corporation in the proceeding; and
(iii) that the authority has not been revoked; and
(iv) that the person is aware that the person may be liable to pay
some or all of the costs of the proceeding; and
(b) a copy of an instrument authorising, or evidencing the
authorisation of, the person to represent the corporation in the
proceeding.
Note An instrument is defined in the Legislation Act, s 14 as any writing or
other document. Writing and document are defined in the Legislation
Act, dict, pt 1.

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 Civil proceedings generally Chapter 2
Starting civil proceedings Part 2.2
How civil proceedings are started Division 2.2.1
Rule 31

31 Kinds of originating processes

(1) A proceeding may be started by an originating claim or originating
application in accordance with these rules.
(2) An application in a proceeding is not an originating process.
Note An originating process means an originating claim or originating
application (see dict). An application in a proceeding is defined in r 6006
to include an application to the court about the proceeding.

32 When civil proceeding starts

(1) A proceeding started by an originating process starts on the day the
originating process for the proceeding is filed.
Note 1 Rule 6145 (5) (Filed documents initially rejected) provides that, if a
document is rejected by the registrar, it is taken to have been filed on the
day it was first filed.
Note 2 Rule 301 deals with when a third-party proceeding starts.

(2) However, if a proceeding is started by oral originating application

under rule 37 (When oral originating application may be made in
Supreme Court), the proceeding starts on the day the oral originating
application is made.
(3) For this rule, it does not matter—
(a) that the originating process later ceases to be valid for service or
is renewed under rule 74 (Originating process—duration and
renewal); or
(b) that the proceeding started by the originating process is later
dismissed under rule 75 (When proceeding taken to be
dismissed); or
(c) that the proceeding started by the originating process is
reinstated under rule 76 (Reinstating dismissed proceeding).

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Chapter 2 Civil proceedings generally
Part 2.2 Starting civil proceedings
Division 2.2.1 How civil proceedings are started
Rule 33

33 When originating claim must be used

(1) A proceeding must be started by originating claim if a territory law
requires the proceeding to be started by originating claim.
Note A territory law includes these rules (see Legislation Act, s 98).

(2) A proceeding must also be started by originating claim unless a

territory law requires or allows the proceeding to be started by
originating application.

34 When originating application must be used

(1) A proceeding must be started by originating application if a territory
law requires the proceeding to be started by originating application.
Note 1 A territory law includes these rules (see Legislation Act, s 98).
Note 2 For cases in which an originating application is required under these
rules, see the following provisions:
• r 6 (4) (Dispensing with rules)
• r 30 (6) (Who may start and carry on a proceeding)
• r 211 (4) (Including parties—common issues of law or fact)
• r 280 (10) (Litigation guardian—appointment and removal by court)
• r 282 (2) (Person with legal disability—approval of settlement etc)
• r 650 (2) (Discovery to identify potential defendant)
• r 651 (2) (Discovery to identify right to claim relief)
• r 706 (4) (Urgent orders before start of proceeding)
• r 728 (1) (Div 2.9.4 order—procedure)
• r 2600 (3) (Interpleader—application by stakeholder)
• r 2746 (3) (Estate and trust accounts—order requiring examination
and passing of accounts)
• r 3005 (1) (Grant of representation—application)
• r 3020 (1) (Reseal of foreign grant—application)
• r 3069 (3) (Caveat—setting aside)
• r 3080 (3) (Revocation of grant—urgent order before start of
proceeding)

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 Civil proceedings generally Chapter 2
Starting civil proceedings Part 2.2
How civil proceedings are started Division 2.2.1
Rule 35

• r 3092 (1) (Division 3.1.9 proceeding—starting)

• r 3114 (3) (Failure of executor to prove will—Administration and
Probate Act)
• r 3115 (3) (Failure by executor, administrator or trustee to comply
with beneficiary’s request etc)
• r 3303 (2) (Cross-vesting—application for transfer or removal of
proceedings)
• r 3454 (1) (Foreign confiscation orders—proceedings for
registration)
• r 3463 (1) (Interstate confiscation orders—proceedings for
registration)
• r 3473 (1) (Foreign judgment—application for registration)
• r 3252 (Commercial arbitration—application)
• r 3504 (1) (Habeas corpus—application and service)
• r 3556 (1) (Judicial review—application)
• r 3608 (1) (Admission—application for admission).
Note 3 See also r 3353 (Election application etc originating application).

(2) A proceeding must also be started by originating application if—

(a) a territory law requires or allows a person to apply to the court
for an order or another kind of relief; and
(b) the law does not state the kind of originating process to be used.

35 When originating application may be used

(1) A proceeding may be started by originating 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 anyone with the originating process; or
(c) there is not enough time to prepare an originating claim because
of the urgent nature of the relief sought; or

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Division 2.2.1 How civil proceedings are started
Rule 35

(d) a territory law allows the proceeding to be started by originating

application.
Note 1 A territory law includes these rules (see Legislation Act, s 98).
Note 2 Rule 2501 (Contempt—applications generally) allows a contempt
application to be made by originating application.

(2) Without limiting subrule (1), a proceeding may be started by

originating application if—
(a) the only or main issue in the proceeding is the interpretation of
legislation and a substantial dispute of fact is unlikely; or
(b) the only or main issue in the proceeding is the interpretation of
a deed, will, contract or other document and a substantial dispute
of fact is unlikely; or
(c) the relief sought is a declaration of right and there is no opposing
party to the proceeding; or
(d) for a question or matter in relation to the estate of a deceased
person or a trust, without administration of the estate or trust—
(i) the only or main issue in the proceeding is an issue of law
and a substantial dispute of fact is unlikely; or
(ii) there is no opposing party to the proceeding or it is not
intended to serve anyone with the originating process.
Examples for r (2) (d)
1 a question affecting the rights or interests of someone claiming to be a creditor,
domestic partner or next of kin of the deceased person or beneficiary of the
trust
2 finding out any class of creditors, next of kin or others
3 producing any particular accounts by the executors, administrators or trustees,
and verifying the accounts (if necessary)
4 paying into court any amount held by the executors, administrators or trustees
5 directing the executors, administrators or trustees to do or not do something as
executor, administrator or trustee

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 Civil proceedings generally Chapter 2
Starting civil proceedings Part 2.2
How civil proceedings are started Division 2.2.1
Rule 36

6 approving any sale, purchase, compromise or other transaction

7 deciding any question arising in the administration of the estate or trust

(3) Also, a proceeding may be started by originating application if—

(a) a territory law requires or allows a person to apply to the court
for an order or another kind of relief; and
(b) a particular kind of originating process (other than an originating
claim or originating application) is required or allowed under a
territory law.

36 When originating application taken to be used

A proceeding is taken to be started by originating application if—
(a) a territory law requires or allows a person to apply to the court
for an order or another kind of relief; and
(b) a particular kind of originating process (other than an originating
claim or originating application) (the particular originating
process) is required or allowed under a territory law; and
(c) the proceeding is started by the particular originating process.

37 When oral originating application may be made in

Supreme Court
(1) This rule applies only in relation to the Supreme Court.
(2) The court may give leave for a proceeding to be started by oral
originating application if satisfied that it is necessary to start the
proceeding in this way.
Example of necessity
urgent relief is sought

(3) An application for leave to start a proceeding or for an order under

this rule must be made in accordance with part 6.2 (Applications in
proceedings).

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Part 2.2 Starting civil proceedings
Division 2.2.1 How civil proceedings are started
Rule 38

(4) Without limiting rule 6016 (Application in proceeding—oral

application), an application for a decision or order under this rule may
be made orally, unless the court otherwise orders on its own initiative.
(5) The plaintiff must file a written originating application in the same
terms as the oral originating application.
(6) The written originating application must be filed—
(a) as soon as practicable after the oral originating application is
made; or
(b) if the court makes an order about when it must be filed—in
accordance with the order.

38 Proceeding incorrectly started by originating claim

(1) This rule applies if the court considers that a proceeding started by
originating claim should have been started by originating application
or may more conveniently continue as if started by originating
application.
(2) The court may—
(a) order that the proceeding continue as if started by originating
application; and
(b) give the directions it considers appropriate for the conduct of the
proceeding; and
Note See r 1401 (Directions generally).

(c) make any other order it considers appropriate.

Example
the court may order that the content of any pleadings filed in the proceeding be put
before the court as affidavits
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
or direction under this rule.

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Starting civil proceedings Part 2.2
How civil proceedings are started Division 2.2.1
Rule 39

(3) If the court makes an order under subrule (2) (a)—

(a) the originating claim is taken to be an originating application;
and
(b) the proceeding is taken to be a proceeding started by originating
application.

39 Proceeding incorrectly started by originating application

(1) This rule applies if the court considers that a proceeding started by
originating application should have been started by originating claim
or may more conveniently continue as if started by originating claim.
(2) The court may do all or any of the following:
(a) order that the proceeding continue as if started by originating
claim;
(b) give the directions it considers appropriate for the conduct of the
proceeding;
(c) order that any affidavits filed in the proceeding be treated as
pleadings, alone or supplemented by particulars;
(d) order that the plaintiff file and serve a statement of claim;
(e) make any other order it considers appropriate.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
or direction under this rule.

(3) If the court makes an order under subrule (2) (a)—

(a) the originating application is taken to be an originating claim;
and
(b) the proceeding is taken to be a proceeding started by originating
claim.

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Chapter 2 Civil proceedings generally
Part 2.2 Starting civil proceedings
Division 2.2.1 How civil proceedings are started
Rule 40

40 Setting aside originating process etc

(1) 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) amend or set aside leave under rule 6503 (Service of originating
process with leave); or
(i) make an order protecting or releasing—
(i) property seized, or threatened with seizure, in a
proceeding; or
(ii) property subject to an order restraining its disposal or in
relation to which an order restraining its disposal is sought;
or
(j) make an order declining to exercise jurisdiction in a proceeding;
or

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 Civil proceedings generally Chapter 2
Starting civil proceedings Part 2.2
Originating claims Division 2.2.2
Rule 50

(k) make any other order it considers appropriate.

Note 1 Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.
Note 2 Rule 6015 (Application in proceeding—application under r 40) provides
that an application for an order under this rule must be filed within the
time mentioned in r 102 (Notice of intention to respond or defence—
filing and service) for filing a notice of intention to respond or, if no
notice of intention to respond is filed, a defence.
Note 3 The registrar may reject an originating process that is filed (see r 6140
(Rejecting documents—noncompliance with rules etc) and r 6142
(Rejecting documents—abuse of process etc).

(2) However, the court must not—

(a) set aside a proceeding only because the proceeding was started
by the incorrect originating process; or
(b) set aside an originating process only because the incorrect
originating process was used.

Division 2.2.2 Originating claims

50 Originating claim—content etc
(1) An originating claim must state briefly and specifically the nature of
the claim made and relief sought.
Note See approved form 2.1 (Originating claim) AF2006-246.

(2) A statement of claim must be attached to the originating claim.

Note 1 See
• approved form 2.2 (Statement of claim—debt or liquidated demand)
AF2007-60
• approved form 2.3 (Statement of claim—motor vehicle death or
personal injury) AF2014-160
• approved form 2.4 (Statement of claim—employment death or
personal injury) AF2014-26
• approved form 2.6 (Statement of claim—general) AF2006-447.

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Chapter 2 Civil proceedings generally
Part 2.2 Starting civil proceedings
Division 2.2.2 Originating claims
Rule 50

Note 2 Rule 52 sets out requirements for the statement of claim for a motor
vehicle death or personal injury claim and r 53 sets out requirements for
a statement of claim for an employment death or personal injury claim.
Note 3 A statement of claim is a pleading (see dict, def pleading) and therefore
must comply with pt 2.6 (Pleadings).
Note 4 Attached to a document is defined in the dictionary.

(3) An originating claim filed in the Magistrates Court, or the attached

statement of claim, must show that the court has jurisdiction to decide
the claim.
Note The Magistrates Court Act 1930, pt 4.2 (Civil jurisdiction) deals with the
civil jurisdiction of the Magistrates Court under that Act.

(4) An originating claim must state—

(a) whether the plaintiff is represented by a solicitor; and
(b) if the plaintiff is represented by a solicitor—the name of the
solicitor; and
(c) the plaintiff’s address for service; and
(d) if the plaintiff is suing in a representative capacity—the
representative capacity in which the plaintiff is suing; and
(e) if a defendant is being sued in a representative capacity—the
representative capacity in which the defendant is being sued.
Note Address for service is defined in the dictionary.

(5) An originating claim must state specifically any claim for—

(a) exemplary damages or aggravated damages; and
(b) interest up to the day of judgment.
(6) An originating claim need not specifically claim costs unless the
claim is for a debt or liquidated demand.
Note Liquidated demand is defined in the dictionary.

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 Civil proceedings generally Chapter 2
Starting civil proceedings Part 2.2
Originating claims Division 2.2.2
Rule 51

(7) If the relief sought requires the court’s decision or direction on any
question, the originating claim must state the question.

51 Originating claim—additional matters for claims for debt

and liquidated demands
(1) This rule applies to an originating claim that includes a claim for a
debt or liquidated demand.
Note Liquidated demand is defined in the dictionary.

(2) A claim for interest up to the day of judgment—

(a) must state the period or periods for which interest is claimed;
and
(b) may state the rate or rates at which interest is claimed.
(3) If a rate is not claimed under subrule (2) (b), the rate is taken to be the
rate of interest applying, from time to time, under schedule 2, part 2.1
(Interest up to judgment).
(4) The costs amount applying under schedule 3, part 3.1 (Claim for debt
or liquidated demand) must be specifically claimed for costs.

52 Originating claim—statement of claim for motor vehicle

death and personal injury claims
(1) This rule applies in relation to an originating claim that includes a
claim for damages for death or personal injury caused by, or arising
out of, the negligent use of a motor vehicle (the accident).
(2) The statement of claim for the originating claim must include, and is
sufficient if it includes, the following:
(a) the time, date, place and circumstances of the accident
(including, if possible, the registration details of all motor
vehicles involved);
(b) precise particulars of the negligence claimed;

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Part 2.2 Starting civil proceedings
Division 2.2.2 Originating claims
Rule 53

(c) for a claim for personal injury—details of the nature and extent
of the injuries and disabilities resulting from the accident, as far
as is known, that is enough (if possible) to enable the defendant
to nominate the kind of expert required to examine the plaintiff;
(d) the name of each health professional who has treated the
plaintiff for the injuries and disabilities, and for any condition
exacerbated by the injury or disability;
(e) the nature of any claim for past or future economic loss, as far
as is known, including (if relevant) the name and address of each
employer of the plaintiff during a reasonable period before and
since the accident.
Note 1 See approved form 2.3 (Statement of claim—motor vehicle death or
personal injury) AF2014-160.
Note 2 A statement of claim is a pleading (see dict, def pleading) and therefore
must comply with pt 2.6 (Pleadings).

53 Originating claim—statement of claim for employment

death and personal injury claims
(1) This rule applies in relation to an originating claim that includes a
claim for damages for death or personal injury caused by, or arising
out of, negligence or breach of statutory duty by an employer (the
incident).
(2) The statement of claim for the originating claim must include, and is
sufficient if it includes, the following:
(a) if the cause of action is based on negligence—the time, date,
place and circumstances of the negligence claimed, including
the acts or omissions making up the negligence;
(b) if the cause of action is based on negligence and the negligence
claimed was that of someone (other than the defendant) for
whose negligence the defendant is vicariously liable—
particulars of the person, and particulars of the claim for
vicarious liability;

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Starting civil proceedings Part 2.2
Originating claims Division 2.2.2
Rule 53

(c) if the cause of action is based on breach of statutory duty—the

name and provision of the statute and a precise statement of the
acts or omissions making up the breach claimed;
(d) for a claim for personal injury—details of the nature and extent
of the injuries and disabilities resulting from the incident, as far
as is known, that is enough (if possible) to enable the defendant
to nominate the kind of expert required to examine the plaintiff;
(e) the name of each health professional who has treated the
plaintiff for the injuries and disabilities, and for any condition
exacerbated by the injury or disability;
(f) the nature of any claim for past or future economic loss, as far
as is known, including (if relevant) the name and address of each
employer of the plaintiff during a reasonable period before and
since the incident;
(g) the jurisdiction that the plaintiff claims is the Territory or State
of connection for the Workers Compensation Act 1951,
section 182D (Applicable substantive law for damages claims).
Note 1 See approved form 2.4 (Statement of claim—employment death or
personal injury) AF2014-26.
Note 2 A statement of claim is a pleading (see dict, def pleading) and therefore
must comply with pt 2.6 (Pleadings).

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Chapter 2 Civil proceedings generally
Part 2.2 Starting civil proceedings
Division 2.2.2 Originating claims
Rule 54

54 Originating claim—filing and service

(1) An originating claim and attached statement of claim must be filed in
the court and a sealed copy then served on each defendant.
(2) The originating claim and attached statement of claim must be served
personally on each defendant, unless otherwise provided by these
rules.
Note See r 6405 (How document is personally served). A number of rules
provide that particular kinds of non-personal service are taken to be
personal service eg r 6412 (Service of originating process by post—
Magistrates Court) and r 6431 (Service on corporations—generally).
Also, service may be made in another way eg by substituted service (see
r 6460 (Substituted service)).

55 Originating claim—abandonment of excess in

Magistrates Court
(1) This rule applies if a person has a cause of action against another
person for more than $250 000.
(2) The person may start a proceeding for the cause of action in the
Magistrates Court if the person—
(a) abandons the excess and limits the claim to $250 000; and
(b) states in the claim that the excess is abandoned.
(3) Judgment in a proceeding under this rule—
(a) is in full discharge of all demands in relation to the cause of
action; and
(b) must record the abandonment.

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 Civil proceedings generally Chapter 2
Starting civil proceedings Part 2.2
Originating applications Division 2.2.3
Rule 60

Division 2.2.3 Originating applications

60 Originating application—content etc
(1) Subject to division 2.4.6 (Representation—trustees and personal
representatives), an originating application must name as defendants
everyone directly affected by the relief sought in the application.
Note See approved form 2.7 (Originating application) AF2006-252.

(2) Subrule (1) does not apply if—

(a) a territory law allows the hearing of the originating application
without it being served on anyone; or
Note A territory law includes these rules (see Legislation Act, s 98).

(b) the relief sought in the application is a declaration of right.

(3) The originating application must state specifically the orders or other
relief sought in the proceeding.
(4) The originating application must list the affidavits to be relied on by
the plaintiff (the supporting affidavits).
(5) The court may order the plaintiff to an originating application to file
supporting affidavits for the application.
(6) An originating application filed in the Magistrates Court, or the
supporting affidavits, must show that the court has jurisdiction to
decide the application.
Note The Magistrates Court Act 1930, pt 4.2 (Civil jurisdiction) deals with the
civil jurisdiction of the Magistrates Court under that Act.

(7) An originating application must state—

(a) whether the plaintiff is represented by a solicitor; and
(b) if the plaintiff is represented by a solicitor—the name of the
solicitor; and
(c) the plaintiff’s address for service; and

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Part 2.2 Starting civil proceedings
Division 2.2.3 Originating applications
Rule 60

(d) if the plaintiff is suing in a representative capacity—the

representative capacity in which the plaintiff is suing; and
(e) if the defendant is being sued in a representative capacity—the
representative capacity in which the defendant is being sued.
Note Address for service is defined in the dictionary.

(8) If an originating application is made under a statute, the application

must state the name and provision of the statute under which the
application is made.
(9) The originating application, and any copies of the application for
service, must state a return date for the application unless a territory
law requires that a return date not be set for the application.
Note 1 Return date for an application is defined in the dictionary.
Note 2 Some provisions of these rules require that a return date not be set for an
application under the rule unless the court otherwise orders. See the
following provisions:
• r 3005 (6) (Grant of representation—application)
• r 3020 (4) (Reseal of foreign grant—application)
• r 3454 (4) (Foreign confiscation orders—proceedings for
registration)
• r 3463 (4) (Interstate confiscation orders—proceedings for
registration)
• r 3473 (4) (Foreign judgment—application for registration).

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 Civil proceedings generally Chapter 2
Starting civil proceedings Part 2.2
Originating applications Division 2.2.3
Rule 61

61 Originating application—filing and service

(1) An originating application must be filed in the court and a sealed copy
then served on each defendant and anyone else the court directs.
(2) For an originating application for a question in relation to the estate
of a deceased person or a trust, without administration of the estate or
trust—
(a) if the application is by a personal representative of the estate or
a trustee of the trust—the application must be served on
everyone directly affected by the relief sought in the application;
or
Note See also div 2.4.6 (Representation—trustees and personal
representatives).

(b) if the proceeding the subject of the application is started by

someone other than a personal representative of the estate or a
trustee of the trust—the application must be served on the
personal representatives or trustees.
(3) The originating application must be served personally on each
defendant or each person mentioned in subrule (2), unless otherwise
provided by these rules.
Note See r 6405 (How document is personally served). A number of rules
provide that particular kinds of non-personal service are taken to be
personal service eg r 6412 (Service of originating process by post—
Magistrates Court) and r 6431 (Service on corporations—generally).
Also, service may be made in another way eg by substituted service (see
r 6460 (Substituted service)).

(4) For an originating application for which there are no defendants, the
court may order that the application be served on anyone the court
directs.
Example
an originating application in which the relief sought is a declaration of right

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Chapter 2 Civil proceedings generally
Part 2.2 Starting civil proceedings
Division 2.2.3 Originating applications
Rule 62

(5) The court may give a direction under subrule (1) or (4) on application
or its own initiative.
Note Pt 6.2 (Applications in proceedings) applies to an application for a
direction.

62 When originating application must be served

(1) An originating application must be served at least 5 days before the
return date for the application.
Note Return date for an application is defined in the dictionary.

(2) However, subrule (1) does not apply if—

(a) a territory law allows the originating application to be heard and
decided without being served; or
Note A territory law includes these rules (see Legislation Act, s 98).

(b) the plaintiff proposes in the originating application that it be

decided without a hearing; or
(c) another time is provided for under these rules; or
(d) the court otherwise orders.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(3) If the court makes an order under subrule (2) (d), a sealed copy of the
order must be served with the application.

63 What happens if originating application not served in

time
(1) This rule applies if—
(a) an originating application is served on a defendant; but
(b) it is not served at least 5 days before the return date for the
application.
Note Return date for an application is defined in the dictionary.

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 Civil proceedings generally Chapter 2
Starting civil proceedings Part 2.2
Rules about originating process Division 2.2.4
Rule 64

(2) The court may only hear and decide the application on the return date
if the court considers it just to hear and decide the application on that
date and—
(a) the court is satisfied that the defendant will suffer no significant
prejudice if it hears and decides the application on the return
date; or
(b) the defendant agrees to the court hearing and deciding the
application on the return date.
(3) The court may make an order on the return date if the plaintiff gives
an undertaking acceptable to the court.
(4) On application by a person affected by the order, the court may set
aside the order.
Note Pt 6.2 (Applications in proceedings) applies to an application to set aside
the order.

64 Originating application—filing and service of supporting

affidavits
(1) The supporting affidavits for an originating application must be filed
in the court and a stamped copy then served with 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.
Note Pt 6.2 (Applications in proceedings) applies to an application for leave.

Division 2.2.4 Rules about originating process

70 Originating process to be sealed
The registrar must seal the original and filed copies of an originating
process.
Note The registrar may reject an originating process that is filed (see r 6140
(Rejecting documents—noncompliance with rules etc) and r 6142
(Rejecting documents—abuse of process etc).

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Chapter 2 Civil proceedings generally
Part 2.2 Starting civil proceedings
Division 2.2.4 Rules about originating process
Rule 71

71 Numbering etc of proceedings

(1) When an originating process is sealed, the registrar must give a
distinguishing number or other unique identifier to the proceeding
started by the process.
(2) The registrar must ensure that the original and each copy sealed under
rule 70 is endorsed with—
(a) the distinguishing number or other unique identifier given to the
proceeding; and
(b) the date when—
(i) the process was filed in the court; or
(ii) if the proceeding was started by an oral originating
application—the application was made.
Note See r 37 (When oral originating application may be made in Supreme
Court).

72 Originating process—solicitor’s statement about filing

(1) This rule applies if—
(a) it appears from an originating process that the plaintiff is
represented by a solicitor; and
(b) a defendant to the proceeding asks the solicitor in writing
whether the process was filed by the solicitor.
(2) The solicitor must tell the defendant in writing whether the process
was filed in the court by the solicitor.
(3) If the solicitor tells the defendant that the solicitor did not file the
process, the defendant may apply to the court to stay the proceeding.
Note Pt 6.2 (Applications in proceedings) applies to an application to stay the
proceeding.

(4) On the defendant’s application, the court may stay the proceeding.

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 Civil proceedings generally Chapter 2
Starting civil proceedings Part 2.2
Rules about originating process Division 2.2.4
Rule 73

73 Defendant taken to be served by filing notice of intention

to respond or defence
(1) This rule applies to a defendant in a proceeding if the defendant has
not been served with the originating process for the proceeding, but
files a notice of intention to respond (other than a conditional notice
of intention to respond) or a defence.
(2) The defendant is taken to have been served with the originating
process on the day the defendant files the notice of intention to
respond or defence.

74 Originating process—duration and renewal

(1) An originating process is valid for service for 1 year starting on the
day it is filed in the court.
(2) The plaintiff may apply to the court to renew the originating process
if the process has not been served on the defendant.
Note Pt 6.2 (Applications in proceedings) applies to an application to renew
the originating process.

(3) If the court is satisfied that reasonable efforts have been made to serve
the defendant or that there is another good reason to renew the
originating process, the court may renew the process for a further
period, of not longer than 6 months at a time, starting on the day after
the day the process would otherwise end.
(4) The originating process may be renewed whether or not it is valid for
service.
(5) Before an originating process renewed under this rule is served, it
must be stamped and show the period for which the process is
renewed.
(6) Despite subrule (1), for any time limit (including a limitation period),
an originating process that is renewed is taken to have started on the
day the process was filed in the court.

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Chapter 2 Civil proceedings generally
Part 2.2 Starting civil proceedings
Division 2.2.4 Rules about originating process
Rule 75

(7) Failing to serve an originating process within the time limited by

these rules does not prevent the plaintiff from starting a fresh
proceeding by filing another originating process.

75 When proceeding taken to be dismissed

(1) A proceeding is taken to be dismissed in relation to a defendant if—
(a) at the end of 1 year after the day the originating process is
issued, an affidavit of service of the process on the defendant
has not been filed in the court; or
(b) at the end of 1 year after the day the originating process is served
on the defendant—
(i) a notice of intention to respond or defence has not been
filed in the court by the defendant; and
(ii) judgment has not been entered in relation to the defendant;
and
(iii) the proceeding has not otherwise been disposed of in
relation to the defendant.
(2) Also, a proceeding is taken to be dismissed in relation to a party if the
party does not take a step in the proceeding before the end of 1 year
after the day the last step was taken in the proceeding.
(3) For subrule (2), the filing in the court of a notice of intention to
proceed in relation to a proceeding is taken to be a step in the
proceeding.
Note See approved form 2.84 (Notice of intention to proceed) AF2008-3.

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 Civil proceedings generally Chapter 2
Starting civil proceedings Part 2.2
Rules about originating process Division 2.2.4
Rule 76

(4) A proceeding is taken to be dismissed under subrule (1) or (2) on the

day after the day the relevant 1-year period mentioned in the subrule
ends.
Example
There is 1 plaintiff and 1 defendant to a proceeding. The defendant takes a step in
the proceeding on 1 July 2006. If the plaintiff fails to take the next step on or before
1 July 2007, the proceeding is taken to be dismissed on 2 July 2007.

76 Reinstating dismissed proceeding

(1) A person whose proceeding has been dismissed under rule 75 may
apply to the court to reinstate the proceeding.
Note Pt 6.2 (Applications in proceedings) applies to an application to reinstate
the proceeding.

(2) The court may reinstate the proceeding if it is in the interests of justice
to reinstate the proceeding.
(3) A proceeding that has been dismissed under rule 75 (2) is reinstated
if, before the end of 1 year after the day the proceeding is dismissed,
a party to the proceeding files a document in the proceeding.
(4) The party filing the document must serve a copy of the document on
each other active party to the proceeding not later than 3 days after
the day the document is filed.
Note Active party—see the dictionary.

(5) For any time limit (including a limitation period), a proceeding that
is reinstated is taken to have started on the day the originating process
for the proceeding was filed in the court and is taken never to have
been dismissed.

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Chapter 2 Civil proceedings generally
Part 2.3 Notice of intention to respond and defence
Division 2.3.1 Notice of intention to respond and defence—general
Rule 100

Part 2.3 Notice of intention to respond

and defence
Division 2.3.1 Notice of intention to respond and
defence—general
100 No step without notice of intention to respond or defence
(1) Except with the court’s leave, a defendant to an originating claim may
take a step in a proceeding only if the defendant has filed in the
court—
(a) a notice of intention to respond; or
(b) if the defendant chooses not to file a notice of intention to
respond—a defence.
Note 1 Pt 6.2 (Applications in proceedings) applies to an application for leave
under this rule.
Note 2 A defendant who proposes to challenge the court’s jurisdiction or to
assert an irregularity must file a conditional notice of intention to respond
(see r 111).
Note 3 A defendant who intends to take no active part in a proceeding must file
a notice of intention to respond (see r 106).
Note 4 See
• approved form 2.8 (Notice of intention to respond) AF2021-23
• approved form 2.9 (Defence and counterclaim) AF2015-28.

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 Civil proceedings generally Chapter 2
Notice of intention to respond and defence Part 2.3
Notice of intention to respond and defence—general Division 2.3.1
Rule 101

(2) Subject to rule 106 (Defendant may submit to judgment by notice of

intention to respond), if a defendant to an originating claim files an
unconditional notice of intention to respond in the court, the
defendant must also file a defence.
Note 1 Rule 111 (Conditional notice of intention to respond) provides that, if a
defendant files a conditional notice of intention to respond, the defendant
must apply for an order under r 40 (Setting aside originating process etc).
If the defendant fails to apply, or the defendant applies but the application
is refused, the conditional notice of intention to respond becomes an
unconditional notice of intention to respond, and the defendant must file
a defence.
Note 2 See div 2.11.3 (Default by defendant) for the possible consequences of
not filing a notice of intention to respond or defence.
Note 3 See also r 279 (Person with legal disability—effect of no notice of
intention to respond or defence).

(3) Except with the court’s leave, a defendant to an originating

application may take a step in a proceeding only if the defendant has
filed in the court a notice of intention to respond.

101 Notice of intention to respond or defence—details to be

included
(1) A notice of intention to respond filed by the defendant must state—
(a) whether the defendant is represented by a solicitor; and
(b) if the defendant is represented by a solicitor—the name of the
solicitor; and
(c) the defendant’s address for service; and
(d) if any particulars of the defendant stated in the originating
process are incorrect—the correct particulars.
Note 1 See approved form 2.8 (Notice of intention to respond) AF2021-23.
Note 2 Address for service is defined in the dictionary.

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Chapter 2 Civil proceedings generally
Part 2.3 Notice of intention to respond and defence
Division 2.3.1 Notice of intention to respond and defence—general
Rule 102

(2) If the defendant to an originating claim chooses not to file a notice of

intention to respond, but files a defence, the defence must state—
(a) whether the defendant is represented by a solicitor; and
(b) if the defendant is represented by a solicitor—the name of the
solicitor; and
(c) the defendant’s address for service; and
(d) if any particulars of the defendant stated in the originating
process are incorrect—the correct particulars.
Note See approved form 2.9 (Defence and counterclaim) AF2015-28.

(3) If the defendant includes corrected particulars of the defendant’s

name in the notice of intention to respond or defence, the court may
amend the originating process accordingly.

102 Notice of intention to respond or defence—filing and

service
(1) In a proceeding started by an originating claim, a defendant must file
any notice of intention to respond, defence, or notice of intention to
respond and defence, not later than the later of the following:
(a) 28 days after the day the claim is served on the defendant;
(b) if the defendant makes an unsuccessful application under rule 40
(Setting aside originating process etc) to have the claim set
aside—7 days after the day the application is refused.
(2) However, if, before the defendant files a defence, an application for
summary judgment under rule 1146 (Summary judgment—for
plaintiff) is served on the defendant, but the court does not on the
application dispose of all the claims for relief against the defendant,
the court may set a time within which the defendant must file a
defence.
Note Pt 6.2 (Applications in proceedings) applies to an application to set a
time.

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 Civil proceedings generally Chapter 2
Notice of intention to respond and defence Part 2.3
Notice of intention to respond and defence—general Division 2.3.1
Rule 103

(3) In a proceeding started by an originating application, a defendant

must file a notice of intention to respond not later than the later of the
following:
(a) on or before the return date for the application;
(b) if the defendant makes an unsuccessful application under rule 40
to have the originating application set aside—7 days after the
day the application is refused.
Note Return date for an application is defined in the dictionary.

(4) The registrar must seal the original and filed copies of the notice of
intention to respond or defence.
Note The registrar may reject a notice of intention to respond or defence that
is filed (see r 6140 (Rejecting documents—noncompliance with rules etc)
and r 6141 (Rejecting documents—inconvenient address for service).

(5) The defendant must serve a sealed copy of the notice of intention to
respond or defence on the plaintiff at the plaintiff’s address for service
on the day it is filed in the court.
Note Address for service is defined in the dictionary.

103 Notice of intention to respond or defence—late filing or

service
(1) A defendant may file and serve a notice of intention to respond or
defence at any time before judgment, even if the notice or defence is
served or filed after the time limited by rule 102.
Note For a defendant to an originating claim, see div 2.11.3 (Default by
defendant) for the possible consequences of not filing within the time
limited for filing.

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Chapter 2 Civil proceedings generally
Part 2.3 Notice of intention to respond and defence
Division 2.3.1 Notice of intention to respond and defence—general
Rule 104

(2) If a defendant to an originating claim files and serves a notice of

intention to respond after the time limited by rule 102, the defendant
is not entitled to any extra time for filing and serving a defence or for
any other purpose, unless the court otherwise orders.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
otherwise ordering.

104 Ground of defence arising after defence filed etc

(1) This rule applies if a ground of defence to an originating claim arises
after—
(a) a defendant files a defence; or
(b) the time limited by rule 102 (1) (Notice of intention to respond
or defence—filing and service) for a defendant to file a defence
ends.
(2) The defendant may file a further defence not later than 7 days after
the day the ground of defence arises or at a later time with the court’s
leave.
Note Pt 6.2 (Applications in proceedings) applies to an application for leave
under this subrule.

(3) The registrar must seal the original and filed copies of the further
defence.
Note The registrar may reject a further defence that is filed (see r 6140
(Rejecting documents—noncompliance with rules etc).

(4) The defendant must serve a sealed copy of the further defence on the
plaintiff at the plaintiff’s address for service on the day it is filed in
the court.
Note Address for service is defined in the dictionary.

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 Civil proceedings generally Chapter 2
Notice of intention to respond and defence Part 2.3
Notice of intention to respond and defence—general Division 2.3.1
Rule 105

105 Defence—reliance on defence not disclosed

A defendant in a proceeding started by originating claim may rely at
the hearing of the proceeding on a ground of defence not stated in a
defence or further defence filed and served by the defendant only if—
(a) the plaintiff agrees; or
(b) the court gives leave.
Note 1 Pt 6.2 (Applications in proceedings) applies to an application for leave.
Note 2 Rule 6902 (Leave may be given on conditions) provides that, if the court
gives leave under these rules, it may give the leave on the conditions it
considers appropriate.

106 Defendant may submit to judgment by notice of intention

to respond
(1) This rule applies if a defendant in a proceeding intends to—
(a) submit to the orders of the court; but
(b) take no active part in the proceeding.
(2) The defendant must—
(a) file a notice of intention to respond; and
(b) include in the notice a statement to the effect that the defendant
submits to all orders sought and to judgment in relation to all
claims made.
(3) However, the defendant may add to the statement words to the effect
that the defendant does not submit in relation to costs.
Example of addition
except as to costs

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Chapter 2 Civil proceedings generally
Part 2.3 Notice of intention to respond and defence
Division 2.3.1 Notice of intention to respond and defence—general
Rule 106

(4) Except with the court’s leave, a defendant who has filed a notice of
intention to respond that includes the statement mentioned in
subrule (2) (b) may not file a defence or affidavit or take any other
step in the proceeding.
Note Pt 6.2 (Applications in proceedings) applies to an application for leave.

(5) The court may order that a plaintiff pay a defendant’s costs as a
submitting party if the defendant—
(a) files a notice of intention to respond that includes the statement
mentioned in subrule (2) (b); and
(b) takes no active part in the proceeding.
(6) If—
(a) a defendant files a notice of intention to respond; and
(b) the defendant is entitled to include in the notice the statement
mentioned in subrule (2) (b), but does not include the statement;
and
(c) the defendant takes no active part in the proceeding;
the court may order that a plaintiff pay the defendant’s costs, but,
unless it otherwise orders, the amount awarded for the costs must not
be more than the amount that could have been awarded if the
statement had been included in the notice.
(7) The court may make an order under subrule (5) or (6) on application
by the defendant or on its own initiative.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under r (5) or r (6).

(8) If a plaintiff has been ordered to pay costs under subrule (5) or (6),
the costs must be included in any costs payable to the plaintiff by any
other defendant or opponent of the plaintiff in the proceeding.

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 Civil proceedings generally Chapter 2
Notice of intention to respond and defence Part 2.3
Notice of intention to respond and defence—general Division 2.3.1
Rule 107

107 Notice of intention to respond or defence—several

defendants with same solicitor
(1) This rule applies if 2 or more defendants in the same proceeding are
represented by the same solicitor at the same time.
(2) The names of all the defendants may be included in a single notice of
intention to respond or defence.

108 Notice of intention to respond or defence—person sued

under partnership name
(1) This rule applies if a proceeding is started against a person under a
partnership name.
Note See also div 2.4.10 (Partnerships).

(2) Any notice of intention to respond or defence must not be filed in the
partnership name.
(3) The person may file a notice of intention to respond or defence only
in the person’s own name.
(4) If the person files a notice of intention to respond or defence in the
person’s own name—
(a) the proceeding continues in the partnership name; and
(b) the person must also file a statement of the names and home
addresses of all the people who were carrying on business under
the partnership name when the cause of action arose
(a partnership statement).
(5) The court may order that a notice of intention to respond or defence
filed by the person be struck out if the person fails to comply with
subrule (4) (b).
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this subrule.

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Chapter 2 Civil proceedings generally
Part 2.3 Notice of intention to respond and defence
Division 2.3.1 Notice of intention to respond and defence—general
Rule 109

(6) Subrules (4) (b) and (5) do not apply if a partnership statement has
been filed in the proceeding by another defendant who is a partner in
the partnership.

109 Notice of intention to respond or defence—person

incorrectly served as partner
(1) If a proceeding is started against a person under a partnership name,
the person may file a conditional notice of intention to respond
stating—
(a) the person files the notice because the person was served as a
partner; and
(b) the person denies being a partner at the relevant time or being
liable as a partner.
(2) On application, the court may, by order—
(a) set aside service of the 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 respond on the
ground that the person is a partner or is liable as a partner.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
or direction under this rule.

(3) The court may give directions about how to decide the liability of the
person or the liability of the partners.
(4) This rule does not limit rule 111 (Conditional notice of intention to
respond).

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 Civil proceedings generally Chapter 2
Notice of intention to respond and defence Part 2.3
Notice of intention to respond and defence—general Division 2.3.1
Rule 110

110 Notice of intention to respond or defence—person sued

under business name
(1) This rule applies if a proceeding is started against a person in a
business name that is not the person’s own name, whether or not the
business name is registered under the Business Names Registration
Act 2011 (Cwlth).
Note See also div 2.4.11 (Business names).

(2) Any notice of intention to respond or defence must not be filed in the
business name.
(3) The person may file a notice of intention to respond or defence only
in the person’s own name.
(4) If the person files a notice of intention to respond or defence in the
person’s own name—
(a) the proceeding continues in the business name until the
amendments mentioned in rule 292 (3) (Business names—
amendment about parties) are made; and
Note Rule 292 (3) provides that the plaintiff must make the amendments
necessary for the proceeding to be continued against a named
defendant and not in the business name.

(b) the person must also file a statement of the names and home
addresses of all the people who were carrying on business under
the business name when the cause of action arose (a business
name statement).
(5) The court may order that a notice of intention to respond or defence
filed by the person be struck out if the person fails to comply with
subrule (4) (b).
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this subrule.

(6) Subrules (4) (b) and (5) do not apply if a business name statement has
been filed in the proceeding by another defendant who is carrying on
business under the business name.

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Chapter 2 Civil proceedings generally
Part 2.3 Notice of intention to respond and defence
Division 2.3.1 Notice of intention to respond and defence—general
Rule 111

111 Conditional notice of intention to respond

(1) If a defendant proposes to challenge the court’s jurisdiction or to
assert an irregularity, the defendant must file a conditional notice of
intention to respond.
Note See also r 109 (Notice of intention to respond or defence—person
incorrectly served as partner).

(2) If a defendant files an unconditional notice of intention to respond or

defence, the defendant is taken to have submitted to the court’s
jurisdiction, and waived any irregularity in the proceeding or defect
in service of the originating process.
(3) If a defendant files a conditional notice of intention to respond, the
defendant must apply for an order under rule 40 (Setting aside
originating process etc) not later than 28 days after the day the notice
is filed.
(4) If the defendant does not apply for an order under rule 40 before the
end of the 28-day period, or the defendant applies but the application
is refused, the conditional notice of intention to respond becomes an
unconditional notice of intention to respond.
(5) If the conditional notice of intention to respond becomes an
unconditional notice of intention to respond and the proceeding was
started by originating claim, the defendant must file a defence not
later than 14 days after the day the conditional notice becomes an
unconditional notice.

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 Civil proceedings generally Chapter 2
Notice of intention to respond and defence Part 2.3
Noticeofintentiontorespondanddefence—proceedingsinSupremeCourtforpossessionofland Division 2.3.2
Rule 150

Division 2.3.2 Notice of intention to respond and

defence—proceedings in Supreme
Court for possession of land
150 Application—div 2.3.2
This division applies only in relation to a proceeding in the Supreme
Court for the possession of land.

151 Proceeding for possession of land—leave to file defence

etc
(1) If a person who is in possession of the land, or part of it, (either
directly or by a tenant) is not named in the originating process for the
proceeding, the person may apply to the Supreme Court for leave to
file a notice of intention to respond or defence.
Note Pt 6.2 (Applications in proceedings) applies to an application for leave.

(2) The application must be supported by an affidavit—

(a) showing the person is in possession of the land or part of it; and
(b) stating how the person is in possession.
(3) The court may give leave for the person to file the notice or defence.
Note Rule 6902 (Leave may be given on conditions) provides that, if the court
gives leave under these rules, it may give the leave on the conditions it
considers appropriate.

(4) If the person is in possession of only part of the land, the leave may
be limited to that part of the land.

152 Proceeding for possession of land—filing defence etc

(1) If the court gives a person leave under rule 151 to file a notice of
intention to respond or defence, the person must file the notice or
defence—
(a) not later than 7 days after the day the leave is given; or

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Chapter 2 Civil proceedings generally
Part 2.3 Notice of intention to respond and defence
Division 2.3.2 Noticeofintentiontorespondanddefence—proceedingsinSupremeCourtforpossessionofland
Rule 153

(b) if the court makes an order about when it must be filed—in

accordance with the order.
Note See
• approved form 2.8 (Notice of intention to respond) AF2021-23.
• approved form 2.9 (Defence and counterclaim) AF2015-28.

(2) If the person files the notice or defence as lessor of the land, the
person must include in the notice or defence a statement that the
person is responding to the claim as lessor.
(3) On the filing by a person of a notice of intention to respond or defence
under this rule, the person is taken, for all purposes, to be a defendant
in the proceeding.

153 Proceeding for possession of land—service of defence

etc
(1) If a person files a notice of intention to respond or defence under rule
152, the person must serve the following (the relevant documents) on
every other active party to the proceeding:
(a) a sealed copy of the notice or defence;
(b) a stamped copy of the affidavit mentioned in rule 151 (2)
(Proceeding for possession of land—leave to file defence etc).
Note Active party is defined in the dictionary.

(2) The person must serve the relevant documents—

(a) not later than 7 days after the day the notice or defence is filed;
or
(b) if the court makes an order about when they must be served—in
accordance with the order.

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 Civil proceedings generally Chapter 2
Parties and proceedings Part 2.4
Including causes of action Division 2.4.1
Rule 200

Part 2.4 Parties and proceedings

Division 2.4.1 Including causes of action
200 Including causes of action
(1) A plaintiff 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.
(2) However, for the Magistrates Court, causes of action may be included
in the same proceeding only if the total amount claimed in the
proceeding is not more than the maximum amount for which the court
has jurisdiction.
(3) Also, a claim by a trustee in bankruptcy must not be included with a
claim by the trustee in any other capacity except with the court’s
leave.
Note Pt 6.2 (Applications in proceedings) applies to an application for leave.

(4) This rule is subject to rule 202 (Including causes of action

inconveniently etc).

201 Joint and separate claims

Claims by plaintiffs jointly may be included with claims by them or
any of them separately against the same defendant.

202 Including causes of action inconveniently etc

(1) This rule applies if the court considers that including a cause of action
in a proceeding—
(a) may unfairly prejudice another party; or
(b) may delay the conduct of the proceeding; or
(c) is otherwise inconvenient.

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Chapter 2 Civil proceedings generally
Part 2.4 Parties and proceedings
Division 2.4.2 Including and substituting parties
Rule 210

(2) The court may—

(a) order separate trials; or
(b) make any other order (including about costs) it considers
appropriate.
Examples for par (b)
1 an order for costs in favour of a party for attending a part of a trial in which
the party has no interest
2 an order relieving a party from attending a part of a trial in which the party has
no interest
3 an order staying the proceeding against a defendant until the trial between the
plaintiff and another defendant is decided, on condition that the defendant is
bound by the findings of fact in the trial against the other defendant

(3) The court may make an order under this rule on application by a
defendant to the proceeding or on its own initiative.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

Division 2.4.2 Including and substituting parties

210 Necessary parties
Each person whose presence as a party is necessary to enable the court
to adjudicate effectively and completely on all issues in dispute in a
proceeding must be included as a party to the proceeding.

211 Including parties—common issues of law or fact

(1) Two or more people may be included as plaintiffs or defendants in a
proceeding—
(a) if—
(i) separate proceedings by or against each of them may give
rise to a common issue of law or fact; and

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 Civil proceedings generally Chapter 2
Parties and proceedings Part 2.4
Including and substituting parties Division 2.4.2
Rule 212

(ii) any of the rights to relief claimed 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; or
(b) if the court orders that they be included.
(2) A person included as a plaintiff under subrule (1) must not start a
proceeding against the defendant in relation to the same cause of
action unless the court gives leave.
(3) If an application for an order under subrule (1) (b) or leave under
subrule (2) is made during the proceeding, the application must be
made in accordance with part 6.2 (Applications in proceedings).
(4) For the Supreme Court, if an application for an order under
subrule (1) (b) or leave under subrule (2) is made before the
proceeding starts, the application must be made by originating
application.

212 Including parties—defendants may be sued jointly,

severally, or in alternative
(1) If a plaintiff claims a right to relief against a person in a proceeding
(whether jointly, severally or in the alternative), the person may be
included as a defendant in the proceeding.
(2) The court may enter judgment against any defendant found to be
liable in accordance with the defendant’s proportionate liability.
(3) This rule is subject to the Civil Law (Wrongs) Act 2002, chapter 7A
(Proportionate liability).

213 Including parties—joint entitlement

(1) If a plaintiff seeks relief to which someone else is entitled jointly with
the plaintiff, everyone entitled to the relief must be parties to the
proceeding.

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Chapter 2 Civil proceedings generally
Part 2.4 Parties and proceedings
Division 2.4.2 Including and substituting parties
Rule 214

(2) A person entitled to seek relief who does not agree to be a plaintiff
must be included as a defendant.
(3) This rule does not require a person to be included if another law
provides that the person need not be included or must not be included.
Example
The Bankruptcy Act 1966 (Cwlth), s 62 (Actions on joint contracts) provides that if
a bankrupt is a contractor in relation to a contract jointly with someone else or other
people, the person or people may sue or be sued in relation to the contract without
joining the bankrupt.

214 Including parties—joint or several liability

(1) If a plaintiff seeks relief against a defendant who is liable jointly and
severally with someone else, the other person need not be made a
defendant to the proceeding.
(2) If people are liable jointly, but not severally, and a plaintiff seeks
relief in a proceeding against some but not all of them, the court may
stay the proceeding until the others are included as defendants.
Note Pt 6.2 (Applications in proceedings) applies to an application for a stay.

215 Including parties—plaintiff in doubt about defendant etc

Two or more people may be included as defendants in a proceeding
if—
(a) there is doubt about—
(i) the person from whom the plaintiff is entitled to relief; or
(ii) the respective amounts for which each may be liable; or
(b) they have all caused damage or loss to the plaintiff, whether or
not there is a factual connection between the claims apart from
the involvement of the plaintiff.

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 Civil proceedings generally Chapter 2
Parties and proceedings Part 2.4
Including and substituting parties Division 2.4.2
Rule 216

216 Including defendants—identical interest in relief

unnecessary
(1) It is not necessary for every defendant to be interested in all the relief
sought or in every cause of action included in a proceeding.
(2) However, the court may make any order it considers appropriate to
stop the defendant being prejudiced or put to expense by being
required to attend any proceeding in which the defendant has no
interest.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

217 Including parties inconveniently etc

(1) If the court considers that including a party to a proceeding may
unfairly prejudice another party, may delay the conduct of the
proceeding or is otherwise inconvenient, it may—
(a) order separate trials; or
(b) make any other order (including about costs) it considers
appropriate.
Examples for par (b)
1 an order for costs in favour of a party for attending a part of a trial in which
the party has no interest
2 an order relieving a party from attending a part of a trial in which the party has
no interest
3 an order staying the proceeding against a defendant until the trial between the
plaintiff and another defendant is decided, on condition that the defendant is
bound by the findings of fact in the trial against the other defendant

(2) The court may make an order under this rule on application by a party
to the proceeding (other than a plaintiff) or on its own initiative.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

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Chapter 2 Civil proceedings generally
Part 2.4 Parties and proceedings
Division 2.4.2 Including and substituting parties
Rule 218

218 Including parties—parties incorrectly included or not

included
Despite rule 213 (Including parties—joint entitlement), 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.

219 Counterclaim or set-off when co-plaintiff wrongly

included
(1) This rule applies if—
(a) a person has been incorrectly or unnecessarily included as a co-
plaintiff in a proceeding; and
(b) the defendant has set up a counterclaim or set–off.
(2) The defendant may get the benefit of the counterclaim or set-off by
proving the claim or set-off against the parties other than the
co-plaintiff.
(3) The defendant’s entitlement under subrule (2) is not affected by—
(a) the inclusion of the co-plaintiff; or
(b) any proceeding resulting from the inclusion.

220 Court may include party if appropriate or necessary

(1) The court may order that a person be included as a party to a
proceeding if—
(a) the person ought to have been included as a party; or
(b) including the person as a party is necessary to enable the court
to adjudicate effectively and completely on all issues in dispute
in the proceeding.
(2) The court may make an order under this rule—
(a) at any stage of the proceeding; and

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 Civil proceedings generally Chapter 2
Parties and proceedings Part 2.4
Including and substituting parties Division 2.4.2
Rule 221

(b) on application by the person or a party to the proceeding or on

its own initiative; and
(c) whether the person to be included should be a plaintiff or
defendant.
Note 1 Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.
Note 2 Rule 6901 (Orders may be made on conditions) provides that the court
may make an order under these rules on any conditions it considers
appropriate.

221 Plaintiffs may be included or substituted

(1) This rule applies if a proceeding has been started in the name of the
wrong person as plaintiff or there is doubt whether the proceeding has
been started in the name of the right person as plaintiff.
(2) The court may order that someone else, or other people, be included
or substituted as plaintiff if satisfied—
(a) that starting the proceeding in the wrong name was a genuine
mistake; and
(b) that it is necessary to enable the court to adjudicate effectively
and completely on all issues in dispute in the proceeding.
Note 1 Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.
Note 2 Rule 6901 (Orders may be made on conditions) provides that the court
may make an order under these rules on any conditions it considers
appropriate.

222 Inclusion or substitution as plaintiff requires agreement

A person may be included or substituted as a plaintiff in a proceeding
only if the person agrees to be included or substituted.

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Chapter 2 Civil proceedings generally
Part 2.4 Parties and proceedings
Division 2.4.3 Changing parties
Rule 223

223 Including parties—procedure

(1) An application by a person to be included as a party to a proceeding
must be supported by an affidavit showing the person’s interest in—
(a) the issues in dispute in the proceeding; or
(b) an issue in dispute to be decided between the person and a party
to the proceeding.
(2) An application to include a person as a defendant must be served on
all active parties to the proceeding and on the person.
Note 1 Pt 6.2 (Applications in proceedings) applies to an application mentioned
in this rule.
Note 2 Active party is defined in the dictionary.

224 Including parties—inclusion to recover costs

(1) A party must not include someone else as a party to a proceeding for
the purpose of applying for costs against the person.
(2) This rule does not apply if—
(a) the person would otherwise be an appropriate or necessary party
to the proceeding; or
(b) the party includes the person by way of a third-party notice in
relation to a claim for costs against the party.

Division 2.4.3 Changing parties

230 Removing parties
(1) The court may order that a person be removed as a party to a
proceeding if the person—
(a) has been inappropriately or unnecessarily included as a party; or
(b) has stopped being an appropriate or necessary party.

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 Civil proceedings generally Chapter 2
Parties and proceedings Part 2.4
Changing parties Division 2.4.3
Rule 231

(2) The court may make an order under this rule—

(a) at any stage of the proceeding; and
(b) on application by a party to the proceeding or on its own
initiative; and
(c) whether the person to be removed is a plaintiff or defendant.
Note 1 Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.
Note 2 Rule 6901 (Orders may be made on conditions) provides that the court
may make an order under these rules on any conditions it considers
appropriate.

231 Party becomes bankrupt, dies or becomes person with

mental disability
(1) This rule applies if—
(a) a party to a proceeding becomes bankrupt, or dies, during the
proceeding, but a cause of action in the proceeding survives; or
(b) a party to a proceeding becomes a person with a mental
disability during the proceeding.
Note Person with a mental disability is defined in the dictionary.

(2) The proceeding is not suspended and does not end.

(3) However, a person must not take a further step in the proceeding for
or against the party unless—
(a) the court gives the person leave to continue the proceeding; and
(b) the person complies with the conditions (if any) of the leave.
Note Pt 6.2 (Applications in proceedings) applies to an application for leave
and an order or directions under this rule.

(4) The court may make any order it considers appropriate about
including, removing, substituting or rearranging parties.

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Chapter 2 Civil proceedings generally
Part 2.4 Parties and proceedings
Division 2.4.3 Changing parties
Rule 231

(5) However, if someone is made a party in place of a party who has

become bankrupt or died, but the person is already a party on the other
side of the proceeding, the court must order the person to cease to be
a party on the other side.
(6) The court may make an order under this rule—
(a) on application by a party to the proceeding or anyone to whom
an interest or liability in the proceeding has passed; or
(b) on its own initiative.
(7) An application for an order under this rule must be served on
everyone who could be affected by the order.
(8) Before making an order under this rule because a party has died, the
court may require notice to be given to—
(a) an insurer of the deceased party who has an interest in the
proceeding; and
(b) anyone else who has an interest in the deceased party’s estate.
(9) An insurer or other person given notice is entitled to be heard on the
hearing of the application.
(10) A sealed copy of an order made under this rule must be served on all
parties, including a party (other than any applicant for the order) who
has been included, removed or substituted.
(11) The court may give directions about the service of the order.
(12) If—
(a) a party who has died does not have a personal representative and
the court orders that a person be substituted as a party for the
party; and
(b) a grant of probate or administration is later made;
the person must give the personal representative a copy of all
documents in the person’s possession relating to the proceeding.

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 Civil proceedings generally Chapter 2
Parties and proceedings Part 2.4
Changing parties Division 2.4.3
Rule 232

232 Amending or setting aside order for new party made on

death etc of party
(1) If a person is made a party under rule 231 (4), the person may apply
to have the order making the person a party amended or set aside.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(2) The application must be made not later than 14 days after—
(a) if the person is a person with a legal disability who does not have
a litigation guardian—the day a litigation guardian is appointed;
or
(b) in any other case—the day a sealed copy of the order is served
on the person.
Note 1 Person with a mental disability is defined in the dictionary.
Note 2 Div 2.4.9 deals with the appointment of a litigation guardian.

(3) On application under this rule, the court may amend or set aside the
order.
(4) If the person made a party under rule 231 (4) is a person with a legal
disability who does not have a litigation guardian, the order under the
subrule does not apply to the person during the period an application
can be made to the court under this rule.

233 Failure to proceed after death of party

(1) This rule applies to a proceeding if—
(a) a party to the proceeding dies during the proceeding, but a cause
of action in the proceeding survives the party’s death; and
(b) an order to substitute a person for the deceased party has not
been made at the end of 3 months after the day of the death.

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Chapter 2 Civil proceedings generally
Part 2.4 Parties and proceedings
Division 2.4.4 Included or changed parties—future conduct of proceedings
Rule 240

(2) If the deceased party is a plaintiff, the court may order that the
proceeding in relation to the cause of action be dismissed in relation
to the plaintiff, and the defendant have judgment on any counterclaim
against the plaintiff, if an application to substitute a person for the
deceased party is not made within a stated time.
(3) If the deceased party is a defendant, the court may order that judgment
be entered for the plaintiff against the defendant, and any
counterclaim by the defendant be dismissed, if an application to
substitute a person for the deceased party is not made within a stated
time.
(4) An application for an order under this rule may be made by anyone
to whom the deceased party’s interest or liability in relation to the
cause of action has passed (whether or not a party to the proceeding).
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

Division 2.4.4 Included or changed parties—future

conduct of proceedings
240 Application—div 2.4.4
This division applies if the court makes an order under division 2.4.2
(Including and substituting parties) or division 2.4.3 (Changing
parties) in a proceeding.

241 Included or substituted defendant—filing and service of

amended originating process
If the court orders that a person be included or substituted as a
defendant in the proceeding—
(a) the plaintiff must—
(i) file an amended originating process in the court; and

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 Civil proceedings generally Chapter 2
Parties and proceedings Part 2.4
Included or changed parties—future conduct of proceedings Division 2.4.4
Rule 242

(ii) serve the person with a sealed copy of the amended

originating process in accordance with these rules as if the
person were an original defendant to be served with the
originating process; and
Note An originating process must be served personally, unless otherwise
provided by these rules (see r 54 (2) and r 61 (3)). See pt 6.8 (Service)
about other ways an originating process may be served.

(b) the person must file a notice of intention to respond or defence

as required by the order.

242 Included or substituted parties—date proceeding taken to

start
(1) This rule applies if the court orders that a person be included or
substituted as a party in the proceeding.
(2) The date the proceeding starts in relation to the person is taken to be—
(a) the date when the order is made; or
(b) if another date is stated in the order—that date.
(3) However, an earlier date must not be stated in the order if the
inclusion or substitution of the person on that date would bring the
start of the proceeding within a limitation period applying to the
person.

243 Included or substituted parties—effect of action

previously taken in proceeding
(1) Unless the court otherwise orders—
(a) if the court orders that a person be included as a party in the
proceeding—the proceeding continues as if the person were an
original party to the proceeding; and

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Chapter 2 Civil proceedings generally
Part 2.4 Parties and proceedings
Division 2.4.4 Included or changed parties—future conduct of proceedings
Rule 244

(b) if the court orders that a person be substituted for a party or

former party in the proceeding—everything previously done in
the proceeding has the same effect in relation to the new party
as it had in relation to the previous party.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
otherwise ordering.

(2) If the previous party was a defendant, subrule (1) (b) does not apply
to the following:
(a) the filing of a notice of intention to respond or defence by the
previous party;
(b) an admission made by the previous party;
(c) an order for costs in favour of, or against, the previous party.

244 Included or changed parties—other orders about future

conduct of proceeding
The court may also make any order it considers appropriate for the
future conduct of the proceeding, including, for example, an order
about—
(a) serving the order, and other documents; and
(b) amending documents; and
(c) filing a notice of intention to respond or defence by a person
included or substituted as a defendant.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

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 Civil proceedings generally Chapter 2
Parties and proceedings Part 2.4
Representation in proceedings for personal injuries Division 2.4.4A
Rule 245

Division 2.4.4A Representation in proceedings for

personal injuries
245 Separate representation of defendant for insurer’s period
on risk
(1) A defendant in a proceeding in relation to a personal injury claim may
be separately represented in the proceeding for each insurer on risk in
relation to the claim.
(2) These rules apply to the defendant as if, for each separate
representation, the defendant were a separate party.
(3) A notice of intention to respond or, if a notice is not filed, a defence,
filed in relation to the separate representation must state the risk to
which the notice or defence relates.

Division 2.4.5 Proceedings under Civil Law

(Wrongs) Act 2002, pt 3.1
250 One proceeding for benefit of members of deceased
person’s family
(1) Not more than 1 proceeding under the Civil Law (Wrongs) Act 2002,
part 3.1 (Wrongful act or omission causing death) may be started
against a person in relation to a death.
(2) The proceeding must be started by the deceased person’s personal
representative for the benefit of the members of the person’s family
(the beneficiaries) who suffered damage or loss because of the death.
(3) However, if the proceeding has not been started by the personal
representative at the end of 6 months after the day of the death, any 1
or more of the beneficiaries may start the proceeding.

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Chapter 2 Civil proceedings generally
Part 2.4 Parties and proceedings
Division 2.4.5 Proceedings under Civil Law (Wrongs) Act 2002, pt 3.1
Rule 251

(4) The proceeding mentioned in subrule (3) must be for the benefit of
the same people and subject to the same provisions and procedures
(with any necessary changes) as if it were started by the deceased
person’s personal representative for the benefit of the beneficiaries.

251 Orders in proceedings for compensation to relatives in

death claims
(1) If—
(a) a proceeding under the Civil Law (Wrongs) Act 2002, part 3.1
(Wrongful act or omission causing death) is started in the court;
and
(b) the court is satisfied that a person whose name is not included in
the names of the people for whose benefit the proceeding is
stated to have been started is a person whose name should have
been included;
the court may order that the proceeding continue as if the name of the
person had been included.
(2) The court may make an order under subrule (1)—
(a) on application by the person; or
(b) on its own initiative.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(3) In a proceeding under the Civil Law (Wrongs) Act 2002, part 3.1, the
court may order that any 1 or more of the people for whose benefit
the proceeding has been started must be separately represented by a
legal practitioner.
(4) If the court makes an order under this rule, it may, at the same time
or later, make the orders about procedure in the proceeding that it
considers appropriate.

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 Civil proceedings generally Chapter 2
Parties and proceedings Part 2.4
Representation—trustees and personal representatives Division 2.4.6
Rule 255

(5) The powers of the court under this rule are additional to any other
powers of the court.

Division 2.4.6 Representation—trustees and

personal representatives
255 Application—div 2.4.6
This division does not apply to a proceeding to which division 2.4.5
(Proceedings under Civil Law (Wrongs) Act 2002, pt 3.1) applies.

256 Representation—by trustees and personal

representatives
(1) A proceeding in relation to a trust, or a deceased person’s estate, may
be started or continued by or against the trustees, or personal
representatives, without including anyone with a beneficial interest in
or claim against the trust or estate (a beneficiary).
(2) Subrule (1) has effect despite rule 213 (Including parties—joint
entitlement).
(3) In a proceeding mentioned in subrule (1)—
(a) the trustees or personal representatives are taken to represent
every beneficiary; and
(b) an order made in the proceeding is binding on every beneficiary.
(4) However, the court may order that an order does not bind a
beneficiary if satisfied that the trustee or personal representative did
not in fact represent the beneficiary.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(5) Also, the court may, at any stage in the proceeding, order that a
beneficiary be made a party to the proceeding in addition to or instead
of an existing party.

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Chapter 2 Civil proceedings generally
Part 2.4 Parties and proceedings
Division 2.4.6 Representation—trustees and personal representatives
Rule 257

(6) This rule applies to trustees and personal representatives in a

proceeding to enforce a security by foreclosure or otherwise.

257 Representation—trustees and personal representatives

must be parties
(1) In a proceeding in relation to a deceased person’s estate, all personal
representatives must be parties.
(2) In a proceeding in relation to a trust, all trustees must be parties.
(3) In a proceeding started by trustees or personal representatives, a
trustee or personal representative who does not agree to being
included as a plaintiff must be made a defendant.

258 Representation—beneficiaries and claimants

(1) In a proceeding in relation to a deceased person’s estate, everyone
having a beneficial interest in or claim against the estate need not be
parties, but the plaintiff may make parties of any of them the plaintiff
considers appropriate.
(2) In a proceeding in relation to a trust, everyone having a beneficial
interest under the trust need not be parties, but the plaintiff may make
parties of any of them the plaintiff considers appropriate.
(3) This rule has effect despite rule 213 (Including parties—joint
entitlement).

259 Representation—proceeding about administration of

deceased person’s estate or trust property
(1) If 2 or more people are or may be interested in or affected by a
proceeding in relation to either or both of the following matters, the
court may appoint 1 or more of them to represent all or some of them:
(a) the administration of a deceased person’s estate;

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 Civil proceedings generally Chapter 2
Parties and proceedings Part 2.4
Representation—trustees and personal representatives Division 2.4.6
Rule 260

(b) property subject to a trust.

Note Pt 6.2 (Applications in proceedings) applies to an application for an
appointment.

(2) The court must not appoint a person under subrule (1) unless
satisfied—
(a) that the interested or affected people (or some of them) cannot,
or cannot readily, be identified; or
(b) that the interested or affected people (or some of them), although
identified, cannot be found; or
(c) that, although all of the interested or affected people have been
identified and found, it is appropriate for a representative to be
appointed to represent all or some of them.
(3) If the court makes an order under subrule (1) appointing 2 or more
people, it may give the conduct of the proceeding, or any part of the
proceeding, to the person it considers appropriate.
(4) For this rule, people may be taken to have an interest or liability even
if—
(a) in relation to 1 or more of them—the interest or liability is a
contingent or future interest or liability; or
(b) 1 or more of them is an unborn child.
(5) This rule does not limit the operation of rule 261 (Representation—
interests of deceased person’s estate).

260 Representation—orders bind represented people in

estate or trust proceeding
(1) This rule applies if a person (the appointed person) has been
appointed under rule 259 (1) to represent another person or other
people in a proceeding.

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Chapter 2 Civil proceedings generally
Part 2.4 Parties and proceedings
Division 2.4.6 Representation—trustees and personal representatives
Rule 261

(2) An order made in the proceeding is binding on everyone represented

by the appointed person as if the represented person were a party to
the proceeding.

261 Representation—interests of deceased person’s estate

(1) This rule applies to a proceeding if the court is satisfied—
(a) that a deceased person’s estate has an interest in or is affected
by the proceeding, but is not represented in the proceeding; or
(b) that the personal representative of the deceased person has an
interest in the proceeding adverse to the interests of the deceased
person’s estate.
(2) The court may—
(a) order that the proceeding continue in the absence of the personal
representative; or
(b) by order, appoint a personal representative for the deceased
person’s estate for the proceeding.
(3) The court may make an order under this rule on the application of a
person interested in the deceased person’s estate or on its own
initiative.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(4) The court must not appoint a person under subrule (2) (b) unless the
person agrees to the appointment.
(5) If the court orders that the proceeding continue in the absence of a
personal representative for the deceased person’s estate, any order
made under this rule, and any order subsequently made in the
proceeding, is binding on the estate as if a personal representative
were a party to the proceeding.

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 Civil proceedings generally Chapter 2
Parties and proceedings Part 2.4
Representation—numerous concurrent interests Division 2.4.7
Rule 265

(6) Before making an order under this rule on application, the court may
order that notice of the application be given to anyone with an interest
in the estate it considers appropriate.

Division 2.4.7 Representation—numerous

concurrent interests
265 Application—div 2.4.7
This division does not apply to a proceeding to which either of the
following divisions applies:
(a) division 2.4.5 (Proceedings under Civil Law (Wrongs)
Act 2002, pt 3.1);
(b) division 2.4.6 (Representation—trustees and personal
representatives).

266 Representation—numerous concurrent interests

(1) If numerous people have the same interest or liability in a proceeding,
the proceeding may be started and, unless the court otherwise orders,
continued by or against any 1 or more of them as representing all of
them.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(2) At any stage in the proceeding, the plaintiff may apply to the court
for an order appointing any 1 or more of numerous defendants, or
other people whom the defendants represent in the proceeding, to
represent all defendants in the proceeding.
(3) If the court appoints a person under subrule (2) who is not a defendant
in the proceeding, it must include the person as a defendant in the
proceeding under rule 220 (Court may include party if appropriate or
necessary).

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Chapter 2 Civil proceedings generally
Part 2.4 Parties and proceedings
Division 2.4.8 Multiple proceedings
Rule 267

(4) If the court appoints 2 or more people under subrule (2), it may give
the conduct of the proceeding, or any part of the proceeding, to the
person it considers appropriate.

267 Orders in div 2.4.7 proceeding bind represented people

(1) An order made in a proceeding against or in favour of a party who
represents others under this division—
(a) is binding on everyone represented by the party in the
proceeding; but
(b) is not enforceable against or by a person who is not a party to
the proceeding without the court’s leave.
(2) An application for leave under subrule (1) (b) must be served on the
person against whom the enforcement of the order is sought as if the
application were an originating process.
Note 1 Pt 6.2 (Applications in proceedings) applies to an application for leave.
Note 2 Rule 6902 (Leave may be given on conditions) provides that, if the court
gives leave under these rules, it may give the leave on the conditions it
considers appropriate.

(3) This rule does not prevent a person against whom an order is sought
to be enforced from disputing liability because of circumstances
peculiar to the person.

Division 2.4.8 Multiple proceedings

270 Consolidation etc of proceedings
(1) This rule applies if, in relation to 2 or more proceedings, it appears to
the court that—
(a) a common issue of law or fact arises; or
(b) the relief sought in each of the proceedings is in relation to, or
arises out of, the same transaction or event or series of
transactions or events; or

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 Civil proceedings generally Chapter 2
Parties and proceedings Part 2.4
Multiple proceedings Division 2.4.8
Rule 270

(c) a decision in a proceeding will decide or affect the other

proceeding or proceedings; or
(d) it is otherwise desirable to make an order under this rule.
(2) The court may order that—
(a) the proceedings be consolidated; or
(b) the proceedings be heard together or in a particular sequence; or
(c) any of the proceedings be stayed until any other of the
proceedings have been decided.
Note Consolidation results in the proceedings becoming a single proceeding
and, for example, only 1 judgment is given in the consolidated
proceeding.

(3) The court may make an order under this rule on application by a party
to any of the proceedings or on its own initiative.
Note 1 Pt 6.2 (Applications in proceedings) applies to an application for an order
or direction under this rule.
Note 2 Rule 6901 (Orders may be made on conditions) provides that the court
may make an order under these rules on any conditions it considers
appropriate.

(4) If the court orders that proceedings be consolidated or heard together

or in a particular sequence, it may give the directions it considers
appropriate for the conduct of the proceeding or proceedings.
(5) Before or during the hearing of a consolidated hearing or of hearings
ordered to be heard together or in a particular sequence, the court may
order that the proceedings be separated or heard in another sequence.

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Chapter 2 Civil proceedings generally
Part 2.4 Parties and proceedings
Division 2.4.9 People with a legal disability
Rule 275

Division 2.4.9 People with a legal disability

275 Person with legal disability—litigation guardian to start
proceeding etc
(1) Unless a territory law otherwise provides, a person with a legal
disability may start or defend, and carry on, a proceeding only by the
person’s litigation guardian.
Example—territory law otherwise providing
The Court Procedures Act 2004, s 74E provides that in a proceeding in a court in
relation to a child or young person, the child or young person may be represented
by a lawyer or litigation guardian, or both.
Note 1 Person with a legal disability is defined in the dictionary.
Note 2 A territory law includes these rules (see Legislation Act, s 98).

(2) However, a child may start, and carry on, a proceeding in the
Magistrates Court to recover wages, salary or any other amount
owing to the child in relation to the child’s employment, or a contract
for services for the doing of work by the child, as if the child were an
adult.
(3) Anything in a proceeding (including a related enforcement
proceeding) required or allowed by these rules to be done by a party
may be done only by the party’s litigation guardian if the party is a
person under a legal disability.
(4) However, part 2.8 (Disclosure) applies to a party who is a person
under a legal disability as if the person were not a person under a legal
disability.
(5) An act required to comply with an order under part 2.8 may be
performed by—
(a) if the party can perform it—the party; or
(b) in any other case—the party’s litigation guardian.

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 Civil proceedings generally Chapter 2
Parties and proceedings Part 2.4
People with a legal disability Division 2.4.9
Rule 276

(6) A party’s litigation guardian who is not a legal practitioner may act
only by a solicitor.

276 Who may be litigation guardian

(1) A person may be a litigation guardian of a person with a legal
disability for a proceeding if the person—
(a) is not a person with a legal disability; and
(b) has no interest in the proceeding adverse to the interests of the
person with a legal disability; and
(c) has agreed to be the person’s litigation guardian.
(2) If a person is authorised under a territory law to conduct a proceeding
in the name of or for (however described) a person with a legal
disability, the authorised person is entitled to be litigation guardian of
the person with a legal disability in any proceeding to which the
authorised person’s authority extends, unless the court otherwise
orders.
Examples
1 The Guardianship and Management of Property Act 1991, s 7 (3) provides
that a person’s guardian may be given the power by the ACAT to bring or
continue a proceeding for or in the name of the person.
2 That Act, s 8 provides that the ACAT may appoint a manager to manage a
person’s property. The powers that may be given to a person’s manager are
the powers that the person would have if the person were legally competent to
exercise powers in relation to the person’s property.
Note 1 Pt 6.2 (Applications in proceedings) applies to an application for an order
otherwise ordering.
Note 2 A territory law includes these rules (see Legislation Act, s 98).

277 Litigation guardian—liability for costs

(1) A litigation guardian for a plaintiff is liable for any costs for which
the plaintiff would have been liable if the plaintiff were not a person
with a legal disability.

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Chapter 2 Civil proceedings generally
Part 2.4 Parties and proceedings
Division 2.4.9 People with a legal disability
Rule 278

(2) An order for costs against the plaintiff or the litigation guardian may
be enforced against the litigation guardian.
(3) A litigation guardian for a defendant is not liable for any costs in a
proceeding unless the costs are incurred because of the litigation
guardian’s negligence or misconduct.

278 Becoming a litigation guardian

(1) Unless a territory law otherwise provides, a person may become the
litigation guardian of a person with a legal disability without the need
for any formal instrument of appointment or any order of a court.
Note A territory law includes these rules (see Legislation Act, s 98).

(2) Unless a person is appointed as a litigation guardian by the court, a

person becomes the litigation guardian of a person with a legal
disability for a proceeding by filing in the court—
(a) an affidavit by the solicitor for the person with a legal disability,
or someone else with knowledge of the facts, stating that the
person—
(i) has agreed to be the litigation guardian; and
(ii) is an appropriate person to be the litigation guardian; and
(iii) does not have an interest in the proceeding adverse to the
interest of the person with a legal disability; and
(b) the person’s written consent to be the litigation guardian of the
person with a legal disability; and

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 Civil proceedings generally Chapter 2
Parties and proceedings Part 2.4
People with a legal disability Division 2.4.9
Rule 279

(c) if the person with a legal disability is a plaintiff in the

proceeding—an undertaking by the person that the person will
be liable for any costs that the person with a legal disability
might otherwise be required to pay in the proceeding.
Note See
• approved form 2.10 (Affidavit for person to act as litigation
guardian) AF2006-255
• approved form 2.11 (Consent and undertaking by person to act as
litigation guardian) AF2006-256.

279 Person with legal disability—effect of no notice of

intention to respond or defence
(1) If a defendant who is a person with a legal disability does not file a
notice of intention to respond or defence within the time limited by
these rules, the plaintiff may not continue the proceeding unless
someone is made litigation guardian of the defendant.
(2) This rule has effect despite division 2.11.3 (Default by defendant).

280 Litigation guardian—appointment and removal by court

(1) A person may not replace someone else as litigation guardian of a
person with a legal disability except by an order of the court.
(2) If a party to a proceeding is or becomes a person with a legal disability
and the party does not have a litigation guardian, the court may, by
order, appoint a litigation guardian.
(3) If a party to a proceeding is or becomes a person with a legal disability
and the party has a litigation guardian, the court may, by order,
remove the party’s litigation guardian and appoint another litigation
guardian.
(4) In a proceeding in relation to a person with a legal disability who is
not a party, the court may, by order, appoint a litigation guardian of
the person and include the person as a party to the proceeding.

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Chapter 2 Civil proceedings generally
Part 2.4 Parties and proceedings
Division 2.4.9 People with a legal disability
Rule 281

(5) If the court removes a party’s litigation guardian, it may also, by

order, stay the proceeding until the appointment of a new litigation
guardian.
(6) An application for an order under this rule must be served on the
person with a legal disability and, if the application proposes removal
of a litigation guardian, on the litigation guardian.
(7) In a proceeding on an application for the appointment of a litigation
guardian, evidence in support of the application must include
evidence—
(a) that the party for whom a litigation guardian is to be appointed
is a person with a legal disability; and
(b) that the proposed litigation guardian agrees to being appointed
and does not have an interest in the proceeding adverse to the
interests of the person with a legal disability.
(8) The court may make an order under this rule on application by a party
to the proceeding or anyone else or on its own initiative.
(9) If an application for an order under this rule is made during the
proceeding or after judgment is given in the proceeding, the
application must be made in accordance with part 6.2 (Applications
in proceedings).
(10) For the Supreme Court, if an application for an order under this rule
is made before the proceeding starts, the application must be made by
originating application.

281 Litigation guardian—accounts

Division 2.9.5 (Receivers) applies in relation to a litigation guardian’s
accounts, with any necessary changes, in the same way as it applies
to a receiver’s accounts.

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 Civil proceedings generally Chapter 2
Parties and proceedings Part 2.4
Partnerships Division 2.4.10
Rule 282

282 Person with legal disability—approval of settlement etc

(1) In a proceeding (or proposed proceeding) in which there is a claim
for an amount (including an amount of damages) by or on behalf of a
person with a legal disability, a settlement or compromise may only
be entered into, and an amount paid into court may only be accepted,
with the court’s approval.
(2) The application for the court’s approval must be made by originating
application, unless the application is made in a proceeding that has
already been started.
Note 1 Div 2.2.3 (Originating applications) contains provisions about the content
of originating applications, the filing and service of originating
applications, etc.
Note 2 Pt 6.2 (Applications in proceedings) applies to an application for the
court’s approval in a proceeding that has already been started.

(3) If the court approves a settlement, compromise or acceptance of an

amount paid into court, the court may enter judgment for the amount
of the settlement, compromise or payment into court.
(4) This rule applies whether the person is suing alone or with another
party.

Division 2.4.10 Partnerships

285 Meaning of partnership proceeding—div 2.4.10
In this division:
partnership proceeding means 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.
Note See also r 108 (Notice of intention to respond or defence—person sued
under partnership name) and r 109 (Notice of intention to respond or
defence—person incorrectly served as partner).

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Chapter 2 Civil proceedings generally
Part 2.4 Parties and proceedings
Division 2.4.10 Partnerships
Rule 286

286 Proceeding in partnership name

(1) Two or more partners may start a proceeding in the partnership name.
(2) A proceeding against people claimed to be partners may be started
against the claimed 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 an incorporated limited partnership, the name of the partnership
when the cause of action arose is the name in which the partnership
was registered under the Partnership Act 1963, section 59
(Registration of incorporated limited partnership) when the cause of
action arose.
(5) Unless the court otherwise orders, a partnership proceeding must
continue in the partnership name and not in the name of the individual
partners.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
otherwise ordering.

287 Disclosure of partners’ names

(1) At any stage of a partnership proceeding, a party may by notice served
on the partnership require the partnership to give the party the names
and home addresses of all of the people who were partners in the
partnership when the cause of action arose.
Note Rule 6433 deals with service of an originating process on a partnership.

(2) The notice must state a date for compliance with the notice that is at
least 2 days after the day the notice is served on the partnership.
(3) If the partnership does not give the party the information required by
the notice, the court may make any order it considers appropriate,
including an order—
(a) staying the proceeding until the information is given; and

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 Civil proceedings generally Chapter 2
Parties and proceedings Part 2.4
Business names Division 2.4.11
Rule 290

(b) striking out a pleading or affidavit.

Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

Division 2.4.11 Business names

290 Proceeding in registered business name
A proceeding may be started against a name registered under the
Business Names Registration Act 2011 (Cwlth).

291 Proceeding in business name if unregistered etc

(1) This rule applies to a business name under which business is being
carried on by a person in contravention of the Business Names
Registration Act 2011 (Cwlth) because—
(a) the name is not registered under that Act; or
(b) the name is registered under that Act, but is not registered in
relation to the person; or
(c) the name is registered under that Act in relation to the person
but the person has not complied with that Act, section 12
(Notification of changes in particulars relating to registered
business names etc) in relation to the name.
(2) If a proceeding is started against the person under the business name,
the following provisions apply:
(a) the proceeding is not invalid only because of the contravention;
(b) the business name is a sufficient designation of the person in any
process in or in relation to the proceeding until the plaintiff
makes the amendments mentioned in rule 292 (3).
Note See r 110 (Notice of intention to respond or defence—person sued under
business name).

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Chapter 2 Civil proceedings generally
Part 2.4 Parties and proceedings
Division 2.4.11 Business names
Rule 292

292 Business names—amendment about parties

(1) This rule applies to a business name under which business is being
carried on by a person in contravention of the Business Names
Registration Act 2011 (Cwlth) because—
(a) the name is not registered under that Act; or
(b) the name is registered under that Act, but is not registered in
relation to the person.
(2) If a proceeding is started against the person under the business name,
the plaintiff must take all reasonable steps to find out the person’s
name.
(3) The plaintiff must also make the amendments necessary for the
proceeding to be continued against a named defendant and not in the
business name.
(4) Until the amendments are made, the plaintiff may only take a step in
the proceeding with the court’s leave.
Note Pt 6.2 (Applications in proceedings) applies to an application for leave.

(5) Subrule (4) does not apply to—

(a) the filing or service of an originating process; or
(b) the filing or service of an application under rule 650 (Discovery
to identify potential defendant) or rule 651 (Discovery to
identify right to claim relief); or
(c) the filing or service of an application for an order under rule 706
(Urgent orders before start of proceeding); or
(d) a step taken to comply with this rule; or
(e) the filing or service of an application for leave under subrule (4).

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 Civil proceedings generally Chapter 2
Parties and proceedings Part 2.4
Business names Division 2.4.11
Rule 292

(6) An amendment for this rule must be made in accordance with rule 509
(Amendment—procedure) and served in accordance with rule 511
(Amendment—service of amended document).
(7) This rule applies in addition to part 2.7 (Amendment).

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Chapter 2 Civil proceedings generally
Part 2.5 Third-party and similar proceedings

Rule 300

Part 2.5 Third-party and similar

proceedings

300 Purpose—pt 2.5

The purpose of this part is to provide for a third-party procedure in
proceedings started by originating claim.
Note A proceeding incorrectly started by originating application is taken to be
a proceeding started by originating claim if the court orders that the
proceeding continue as if started by originating claim (see r 39).

301 When a third-party proceeding starts

A third-party proceeding starts on the day the third-party notice for
the proceeding is filed in the court.
Note Rule 6145 (5) (Filed documents initially rejected) provides that, if a
document is rejected by the registrar, it is taken to have been filed on the
day it was first filed.

302 Third-party proceeding—when available

A defendant may file a third-party notice if the defendant wants to—
(a) claim a contribution or indemnity against a person who is not
already a party to the proceeding; or
(b) claim relief against a person who is not already a party to the
proceeding that—
(i) relates to or is connected with the original subject matter
of the proceeding; and
(ii) is substantially the same as some relief claimed by the
plaintiff; or

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 Civil proceedings generally Chapter 2
Third-party and similar proceedings Part 2.5

Rule 303

(c) require an issue relating to or connected with the original subject

matter of the proceeding to be decided not only as between the
plaintiff and defendant but also between either of them and a
person not already a party to the proceeding.

303 Third-party notice—content etc

(1) A third-party notice must state briefly and specifically the nature of
the claim made and relief sought.
Note See approved form 2.12 (Third-party notice) AF2006-257.

(2) A statement of claim must be attached to the third-party notice.

Note 1 See
• approved form 2.2 (Statement of claim—debt or liquidated demand)
AF2007-60
• approved form 2.3 (Statement of claim—motor vehicle death or
personal injury) AF2014-160
• approved form 2.4 (Statement of claim—employment death or
personal injury) AF2014-26
• approved form 2.6 (Statement of claim—general) AF2006-447.
Note 2 See r 305 (Third-party notice—statement of claim for certain personal
injuries claims).
Note 3 A statement of claim is a pleading (see dict, def pleading) and therefore
must comply with pt 2.6 (Pleadings).
Note 4 Attached to a document is defined in the dictionary.

(3) A third-party notice filed in the Magistrates Court, or the attached

statement of claim, must show that the court has jurisdiction to decide
the claim.
Note The Magistrates Court Act 1930, pt 4.2 (Civil jurisdiction) deals with the
civil jurisdiction of the Magistrates Court under that Act.

(4) A third-party notice must state—

(a) whether the defendant is represented by a solicitor; and

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Chapter 2 Civil proceedings generally
Part 2.5 Third-party and similar proceedings

Rule 304

(b) if the defendant is represented by a solicitor—the name of the

solicitor; and
(c) the defendant’s address for service; and
(d) if the defendant is suing in a representative capacity—the
representative capacity in which the defendant is suing; and
(e) if a third party is being sued in a representative capacity—the
representative capacity in which the third party is being sued.
Note Address for service is defined in the dictionary.

(5) A third-party notice must state specifically any claim for—

(a) exemplary damages or aggravated damages; and
(b) interest up to the day of judgment.
(6) A third-party notice need not specifically claim costs unless the claim
is for a debt or liquidated demand.
Note Liquidated demand is defined in the dictionary.

(7) If the relief sought requires the court’s decision or direction on any
question, the third-party notice must state the question.

304 Third-party notice—additional matters for claims for debt

and liquidated demands
(1) This rule applies to a third-party notice that includes a claim for a debt
or liquidated demand.
Note Liquidated demand is defined in the dictionary.

(2) A claim for interest up to the day of judgment—

(a) must state the period or periods for which interest is claimed;
and
(b) may state the rate or rates at which interest is claimed.

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 Civil proceedings generally Chapter 2
Third-party and similar proceedings Part 2.5

Rule 305

(3) If a rate is not claimed under subrule (2) (b), the rate is taken to be the
rate of interest applying, from time to time, under schedule 2, part 2.1
(Interest up to judgment).
(4) The costs amount applying under schedule 3, part 3.1 (Claim for debt
or liquidated demand) must be specifically claimed for costs.

305 Third-party notice—statement of claim for certain

personal injury claims
The following rules apply, with any necessary changes, to a statement
of claim for a third-party notice in the same way as they apply to a
statement of claim for an originating claim:
(a) rule 52 (Originating claim—statement of claim for motor
vehicle death and personal injury claims);
(b) rule 53 (Originating claim—statement of claim for employment
death and personal injury claims).

306 Third-party notice—filing

(1) Unless the court gives leave, a third-party notice—
(a) must not be filed by a defendant until the defendant has filed a
defence; and
(b) must be filed not later than 28 days after the end of whichever
of the following periods ends last:
(i) the time limited for filing the defence of the defendant who
is filing the third-party notice (the prescribed period);
(ii) if the plaintiff agrees to an extension of the prescribed
period—the agreed period.
Note 1 Pt 6.2 (Applications in proceedings) applies to an application for leave or
directions under this rule.
Note 2 Rule 6351 (Time—extending and shortening by court order) provides for
the extending of time by the court.

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Chapter 2 Civil proceedings generally
Part 2.5 Third-party and similar proceedings

Rule 307

(2) The defendant must serve a stamped copy of an application for leave
under subrule (1) to file a third-party notice on—
(a) the plaintiff; and
(b) each other active party who has filed a notice of intention to
respond or defence.
Note Active party is defined in the dictionary.

(3) If the court gives leave under subrule (1) to the defendant to file a
third-party notice, it may give directions about filing and serving the
notice.

307 Third-party notice—sealing

The registrar must seal the original and filed copies of a third-party
notice.
Note The registrar may reject an originating process that is filed (see r 6140
(Rejecting documents—noncompliance with rules etc) and r 6142
(Rejecting documents—abuse of process etc).

308 Third-party notice—service

(1) A defendant to a proceeding who files a third-party notice must serve
a sealed copy of the notice and attached statement of claim on the
third party as if—
(a) the notice were an originating claim in a proceeding; and
(b) the defendant were a plaintiff and the third party were a
defendant in the proceeding.
Note Rule 54 (Originating claim—filing and service) deals with service of an
originating claim.

(2) The defendant must serve the following documents with the third-
party notice:
(a) a sealed copy of any order giving leave to file the notice;

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 Civil proceedings generally Chapter 2
Third-party and similar proceedings Part 2.5

Rule 309

(b) a sealed copy of any directions about filing and serving the
notice;
(c) a copy of a sealed copy of any other relevant order made in
relation to the proceeding;
(d) a copy of a sealed copy of the originating claim and attached
statement of claim;
(e) a copy of a stamped copy of all other pleadings filed in the
proceeding;
(f) a copy of a stamped copy of all applications in the proceeding
not finally disposed of;
Note Application in a proceeding is defined in r 6006.

(g) a copy of all affidavits filed in the proceeding, other than

affidavits that are not relevant to the issues arising on the third-
party notice;
(h) a copy of all other documents that have been served by the
plaintiff on the defendant, or by the defendant on the plaintiff,
and are intended to be relied on;
(i) a copy of all amendments of any document mentioned in
paragraphs (d) to (h) or details of the amendments.

309 Third-party notice—effect 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.

310 Third-party notice—setting aside

Rule 40 (Setting aside originating process etc) applies, with necessary
changes, to a proceeding started by a third-party notice as if the
proceeding were a proceeding started by an originating process.

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Chapter 2 Civil proceedings generally
Part 2.5 Third-party and similar proceedings

Rule 311

311 Third-party notice—notice of intention to respond and

defence
(1) Part 2.3 (Notice of intention to respond and defence) applies, with
necessary changes, to a proceeding started by a third-party notice as
if—
(a) the proceeding were a proceeding started by an originating
process; and
(b) the third-party notice were the originating claim in the
proceeding; and
(c) the defendant were a plaintiff and the third party were a
defendant in the proceeding.
(2) The third party may, in the defence to the third-party notice, deny a
plaintiff’s claims against a defendant and claim a matter showing a
plaintiff’s claim against a defendant is not maintainable.

312 Service of pleadings after filing of third-party notice

A party who files a pleading after the filing of a third-party notice
must serve the pleading on all other active parties.

313 Counterclaim by third party

(1) A third party who has a claim against the defendant who included the
third party may counterclaim against the defendant.
(2) The third party may include the plaintiff or someone else as a
defendant to the counterclaim if the person could be included as a
defendant if the third party brought a separate proceeding.
(3) Rule 462 (Counterclaim—against additional party) applies, with
necessary changes, to a counterclaim by a third party.

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 Civil proceedings generally Chapter 2
Third-party and similar proceedings Part 2.5

Rule 314

314 Third-party notice—default by third party

(1) This rule applies if—
(a) a default judgment is entered for the plaintiff against the
defendant who included a third party; and
(b) the third party is in default in relation to the third-party notice.
Note Div 2.11.3 (Default by defendant) applies to a third-party notice (see
r 1116 (Application—div 2.11.3) and r 1117 (When is a defendant in
default—generally).

(2) The third party—

(a) is taken to admit a claim stated in the third-party notice or its
statement of claim; and
(b) is bound by the default judgment between the plaintiff and
defendant as far as it is relevant to a claim or issue stated in the
third-party notice or statement of claim.
(3) The defendant—
(a) 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; and
(b) with the court’s leave, may obtain a judgment against the third
party for other relief or remedy claimed in the notice.
Note Pt 6.2 (Applications in proceedings) applies to an application for leave or
an order (including an order setting aside, amending or a judgment) under
this rule.

(4) The court may amend or set aside the judgment against the third party.

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Chapter 2 Civil proceedings generally
Part 2.5 Third-party and similar proceedings

Rule 315

315 Third parties—disclosure

(1) A third party to a proceeding may serve on the defendant who
included the third party a notice requiring the defendant to disclose
discoverable documents for the proceeding only if the third party files
a notice of intention to respond or defence.
(2) A third party to a proceeding may serve on a plaintiff a notice
requiring the plaintiff to disclose discoverable documents for the
proceeding 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.
(3) However, disclosure may be ordered by the court.
Note Pt 6.2 (Applications in proceedings) applies to an application for a
disclosure order.

316 Third-party notice—hearing

(1) A third party may appear at, and take part in, the hearing of the
proceeding as the court directs.
Note Pt 6.2 (Applications in proceedings) applies to an application for a
direction or order under this rule.

(2) At the hearing, the issues between the defendant who included the
third party and the third party must be heard with the issues between
the plaintiff and the defendant.
(3) However, the court may, at any time, order that the issues between
the defendant who included the third party and the third party be heard
separately from the issues between the plaintiff and the defendant if
it considers that hearing them together would—
(a) unfairly prejudice a party; or
(b) embarrass or delay the hearing of the proceeding; or
(c) be otherwise inconvenient.

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 Civil proceedings generally Chapter 2
Third-party and similar proceedings Part 2.5

Rule 317

(4) The court may order the separate hearing—

(a) on application by a party before the party files and serves a third-
party notice; or
(b) on its own initiative.
(5) The court may give the orders it considers appropriate about the
conduct of the separate hearing.

317 Third party—extent bound by judgment between plaintiff

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

318 Third-party notice—judgment between defendant and

third party
(1) In a proceeding, the court may enter judgment in favour of—
(a) a defendant who included a third party against the third party; or
(b) the third party against the defendant.
(2) If—
(a) judgment is entered in favour of the plaintiff against a defendant;
and
(b) judgment is entered in favour of the defendant against a third
party;
the defendant must not enforce the judgment against the third party
unless the judgment against the defendant is satisfied, or the court
otherwise orders.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
otherwise ordering.

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Chapter 2 Civil proceedings generally
Part 2.5 Third-party and similar proceedings

Rule 319

319 Notice claiming contribution or indemnity against another

party
(1) A party to a proceeding, other than a plaintiff, may file a notice
claiming a contribution or indemnity (a notice claiming contribution
or indemnity) if the party wants to—
(a) claim against another party to the proceeding a contribution or
indemnity; or
(b) claim against another 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 an issue relating to or connected with the original subject
matter of the proceeding to be decided not only as between the
plaintiff and defendant but also between either of them and
another party to the proceeding.
(2) A notice claiming contribution or indemnity must state briefly and
specifically the nature of the claim made and relief sought.
Note See approved form 2.13 (Notice claiming contribution or indemnity)
AF2009-283.

(3) A notice claiming contribution or indemnity filed in the Magistrates

Court must show that the court has jurisdiction to decide the claim.
Note The Magistrates Court Act 1930, pt 4.2 (Civil jurisdiction) deals with the
civil jurisdiction of the Magistrates Court under that Act.

(4) A notice claiming contribution or indemnity must state specifically

any claim for interest up to the day of judgment.
(5) A notice claiming contribution or indemnity need not specifically
claim costs.

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 Civil proceedings generally Chapter 2
Third-party and similar proceedings Part 2.5

Rule 320

(6) Rule 316 (Third-party notice—hearing), rule 317 (Third party—

extent bound by judgment between plaintiff and defendant) and
rule 318 (Third-party notice—judgment between defendant and third
party) apply, with necessary changes, to a notice claiming
contribution or indemnity as if—
(a) the notice were a third-party notice; and
(b) the party who filed the notice were the defendant; and
(c) the party against whom the claim in the notice is made were a
third party.

320 Notice claiming contribution or indemnity—filing and

service etc
(1) Unless the court gives leave, a notice claiming contribution or
indemnity—
(a) must not be filed by a party until the party has filed a defence;
and
(b) must be filed not later than 28 days after the end of whichever
of the following periods ends last:
(i) the time limited for filing the defence of the party who is
filing the notice claiming contribution or indemnity (the
prescribed period);
(ii) if the plaintiff and the defendant, if the defendant is not the
party filing the notice, agree to an extension of the
prescribed period—the agreed period.
Note 1 Pt 6.2 (Applications in proceedings) applies to an application for leave or
directions under this rule.
Note 2 Rule 6351 (Time—extending and shortening by court order) provides for
the extending of time by the court.

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Chapter 2 Civil proceedings generally
Part 2.5 Third-party and similar proceedings

Rule 321

(2) An application for leave under subrule (1) to file a notice claiming
contribution or indemnity must be served on—
(a) the party against whom the claim is made; and
(b) each other active party.
(3) If the court gives leave under subrule (1) to the party to file a notice
claiming contribution or indemnity, it may give directions about
filing and serving the notice.
(4) A party who files a notice claiming contribution or indemnity must
serve stamped copies of the notice on the party against whom the
claim is made and each other active party.
(5) A party served with a notice claiming contribution or indemnity need
not file a notice of intention to respond or defence to the notice if the
party has filed a notice of intention to respond or defence in the
proceeding.

321 Contribution under Civil Law (Wrongs) Act, s 21

If the only relief claimed by a party is a contribution under the Civil
Law (Wrongs) Act 2002, section 21 (Right of contribution) against
another party, the party may file and serve a notice claiming
contribution or indemnity without further pleading.

322 Third-party notice—fourth and subsequent parties

(1) If a third party has filed a notice of intention to respond or defence,
this part applies, with necessary changes, as if the third party were a
defendant.
(2) If a person included as a party (the fourth party) by a third party by
notice (the fourth-party notice) files a notice of intention to respond
or defence—
(a) this part as applied by this rule has effect in relation to the fourth
party and any other further person included (as fifth-party and
so on successively); and

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 Civil proceedings generally Chapter 2
Third-party and similar proceedings Part 2.5

Rule 322

(b) a reference in these rules to a third party includes a reference to

the fourth party and any other further person included (as fifth-
party and so on successively); and
(c) a reference in these rules to a third-party notice includes a
reference to the fourth-party notice and the notice including any
other further person (a fifth-party notice and so on successively).

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Chapter 2 Civil proceedings generally
Part 2.6 Pleadings
Division 2.6.1 Application—pt 2.6
Rule 400

Part 2.6 Pleadings

Division 2.6.1 Application—pt 2.6
400 Application—pt 2.6
(1) This part applies to—
(a) a proceeding started by originating claim or third-party notice;
and
(b) a counterclaim made in a proceeding started by originating
claim or third-party notice.
Note 1 A proceeding incorrectly started by originating application is taken to be
a proceeding started by originating claim if the court orders that the
proceeding continue as if started by originating claim (see r 39).
Note 2 Third-party notice includes a fourth-party notice, fifth-party notice etc
(see r 322 (2) (c)).

(2) However, despite rule 39 (3) (Proceeding incorrectly started by

originating application), this part applies to a proceeding started by
an originating application only if the court orders the plaintiff to file
and serve a statement of claim.

Division 2.6.2 Rules of pleading

405 Pleadings—formal requirements
(1) Each pleading must be in writing.
(2) If a pleading alleges or otherwise deals with several matters—
(a) the pleading must be divided into paragraphs; and
(b) each matter must, as far as convenient, be put in a separate
paragraph; and
(c) the paragraphs must be numbered consecutively.

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 Civil proceedings generally Chapter 2
Pleadings Part 2.6
Rules of pleading Division 2.6.2
Rule 406

(3) If a plaintiff seeks relief in relation to 2 or more distinct claims based

on different grounds, they must be stated, as far as possible,
separately.
(4) If a defendant relies on 2 or more distinct grounds of defence, set-off
or counterclaim based on different facts, they must be stated, as far as
possible, separately.
(5) If a pleading is settled by counsel, it must state—
(a) that it was settled by counsel; and
(b) counsel’s name.
Note Div 6.3.1 (General provisions about documents for filing) contains
provisions about formal requirements for documents (including
pleadings) to be filed, see esp r 6103 (1) (Documents—layout etc) and
r 6106 ((Documents—signing).

406 Pleadings—statements in
(1) Each pleading must—
(a) be as brief as the nature of the case allows; and
(b) contain a statement in a summary form of 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 419 (Pleadings—other relief), state specifically
any relief the party claims; and
(e) if a claim or defence under a statute is relied on—identify the
specific provision of the statute.
(2) A party may raise a point of law in a pleading if the party also pleads
the material facts in support of the point.

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Chapter 2 Civil proceedings generally
Part 2.6 Pleadings
Division 2.6.2 Rules of pleading
Rule 407

407 Pleadings—matters to be specifically pleaded

(1) Without limiting rule 406, the following matters must be specifically
pleaded:
(a) an accident the cause of which is unknown and undiscoverable;
(b) breach of contract or trust;
(c) breach of statutory duty;
Note See r 432 (Pleadings—negligence and breach of statutory duty).

(d) damages of every kind claimed, including, for example, special

and exemplary damages;
Note See also r 417 (Pleadings—kind of damages etc).

(e) duress;
(f) estoppel;
(g) extinction of right or title;
(h) fraud or illegality;
(i) interest (including the rate of interest and method of calculation)
claimed;
(j) malice or ill will;
(k) misrepresentation;
(l) motive, intention or other condition of mind, including
knowledge or notice;
(m) negligence or contributory negligence;
Note See r 432 (Pleadings—negligence and breach of statutory duty).

(n) payment;
(o) performance or part performance;
(p) release;

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 Civil proceedings generally Chapter 2
Pleadings Part 2.6
Rules of pleading Division 2.6.2
Rule 407

(q) statute of limitations;

(r) a statute requiring that contracts be in, or evidenced by, writing
(for example, statute of frauds);
(s) undue influence;
(t) voluntary assumption of risk;
(u) waiver;
(v) want of capacity, including disorder or disability of mind;
(w) that a testator did not know and approve of the contents of a will;
(x) that a will was not properly made;
(y) wilful default;
(z) anything else required by a practice note 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) In a defence or pleading after a defence, a party must specifically
plead any 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) raises an issue of fact not arising out of a previous pleading.

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Chapter 2 Civil proceedings generally
Part 2.6 Pleadings
Division 2.6.2 Rules of pleading
Rule 407A

407A Pleadings in human rights proceedings—generally

(1) This rule applies to a proceeding if a party to the proceeding relies on
the Human Rights Act 2004 for relief.
(2) The party’s pleadings must state—
(a) the human right that the party relies on, including—
(i) the relevant content of the right; and
(ii) any particular aspect of the right that the party relies on;
and
(b) the facts on which the party relies to assert that the Human
Rights Act 2004 applies to the proceeding; and
(c) the relief sought.

407B Pleadings in human rights proceedings—public

authorities
(1) This rule applies to a proceeding to which the Human Rights
Act 2004, section 40C applies.
Note The Human Rights Act 2004, s 40C applies if a person—
(a) claims that a public authority has acted in contravention of that Act,
s 40B (Public authorities must act consistently with human rights);
and
(b) alleges that the person is or would be a victim of the contravention.

(2) The plaintiff’s pleading must state—

(a) the human right the plaintiff alleges was breached in
contravention of the Human Rights Act 2004, section 40B; and
(b) the details of the alleged breach; and
(c) the relief sought.

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 Civil proceedings generally Chapter 2
Pleadings Part 2.6
Rules of pleading Division 2.6.2
Rule 408

408 Pleadings—money claims short form

(1) This rule applies if the plaintiff claims an amount payable by the
defendant to the plaintiff for any of the following:
(a) goods sold and delivered by the plaintiff to the defendant;
(b) goods bargained and sold by the plaintiff to the defendant;
(c) work done or materials provided by the plaintiff for the
defendant at the defendant’s request;
(d) money lent by the plaintiff to the defendant;
(e) money paid by the plaintiff for the defendant at the defendant’s
request;
(f) money had and received by the defendant for the plaintiff’s use;
(g) interest on money owing by the defendant to the plaintiff;
(h) interest for forbearance by the plaintiff at the defendant’s
request on money owing by the defendant to the plaintiff;
(i) money found to be owing by the defendant to the plaintiff on
accounts stated between them.
(2) The plaintiff may plead the facts using the form of words set out in
the relevant paragraph of subrule (1).
(3) The defendant may file a notice requiring the plaintiff to plead the
facts on which the plaintiff relies in accordance with the provisions
of this part other than this rule (the facts in full).
(4) The defendant must file any notice under subrule (3) within the time
limited by these rules for the defendant to file a defence.
Note Rule 102 provides that, in a proceeding started by an originating claim, a
defendant must file a defence not later than the later of the following:
(a) 28 days after the day the claim is served on the defendant;
(b) if the defendant makes an unsuccessful application under r 40 to
have the claim set aside—7 days after the day the application is
refused.

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Chapter 2 Civil proceedings generally
Part 2.6 Pleadings
Division 2.6.2 Rules of pleading
Rule 409

However, if, before the defendant files a defence, an application for

summary judgment under r 1146 is served on the defendant, but the court
does not on the application dispose of all the claims for relief against the
defendant, the court may set a time within which the defendant must file
a defence.

(5) If the defendant files a notice under subrule (3), the defendant must
serve a stamped copy of the notice on the plaintiff at the plaintiff’s
address for service on the day it is filed.
Note Address for service is defined in the dictionary.

(6) If the defendant files a notice under subrule (3)—

(a) the plaintiff must, not later than 28 days after the day the notice
is served on the plaintiff—
(i) file an amended statement of claim pleading the facts in
full; and
(ii) include in the amended statement of claim a note to the
effect that the statement has been amended in response to
the notice; and
(b) if the defendant has not already filed a defence—the time for
filing the defence is extended until 14 days after the day a
stamped copy of the plaintiff’s amended statement of claim is
served on the defendant.
(7) The plaintiff is not prevented from amending the statement of claim
under rule 505 (Amendment—of pleadings before close of pleadings)
only because the plaintiff has amended the statement of claim under
this rule.

409 Pleadings—certain facts need not be pleaded

(1) A party need not 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.

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 Civil proceedings generally Chapter 2
Pleadings Part 2.6
Rules of pleading Division 2.6.2
Rule 410

(2) This rule does not apply if it is necessary to plead the fact—
(a) to comply with rule 406 (Pleadings—statements in); or
(b) to meet a specific denial of the fact pleaded by another party.

410 Pleadings—technical objections

A technical objection must not be raised to any pleading on the
ground of want of form.

411 Pleadings—references to spoken words and documents

(1) This rule applies if spoken words or a document is referred to in a
pleading.
(2) The effect of the spoken words or document must be stated as far as
material.
(3) The precise terms of the spoken words or document need not be
stated, except as far as the terms are themselves material.

412 Pleadings—conditions precedent

(1) An allegation of the performance or happening of a condition
precedent necessary for a party’s case is implied in the party’s
pleadings.
(2) A party who denies the performance or happening of a condition
precedent must specifically plead the denial.
Examples of conditions precedent
1 a thing has been done
2 an event has happened
3 a state of affairs exists, or has existed at some time or times
4 the party is ready and willing, or was at all relevant times ready and willing,
to perform an obligation

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Chapter 2 Civil proceedings generally
Part 2.6 Pleadings
Division 2.6.2 Rules of pleading
Rule 413

413 Pleadings—matters arising after start of proceeding

(1) A party to a proceeding may plead a matter that arose after the
proceeding started.
(2) A party to a proceeding may plead facts giving rise to a cause of
action that arose after the proceeding started only—
(a) if it is not unjust to any other party; and
(b) with the court’s leave.
Note 1 See r 502 (3) (Amendment—of documents) about including a cause of
action arising after a proceeding is started.
Note 2 See also r 104 (Ground of defence arising after defence filed etc), r 467
(Counterclaim—defence arising after answer) and r 481 (3) (Pleadings—
after reply).
Note 3 Pt 6.2 (Applications in proceedings) applies to an application for leave.

414 Pleadings—inconsistent allegations etc

(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.
Note Pt 2.7 (Amendment) deals with amendment of pleadings.

415 Pleadings—notice pleaded as a fact

(1) This rule applies if—
(a) notice to someone of something is to be stated in a pleading; and
(b) the form or the precise terms of the notice, or the circumstances
from which the notice is to be inferred, are not material.
(2) The pleading may state the notice as a fact.

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 Civil proceedings generally Chapter 2
Pleadings Part 2.6
Rules of pleading Division 2.6.2
Rule 416

416 Pleadings—implied contracts or relations

(1) This rule applies if a contract or any relation between people is to be
implied from letters or conversations or from a number of
circumstances.
(2) The pleading may state the contract or relation as a fact.
(3) The pleading may refer to the letters, conversations or circumstances
as briefly as possible without setting out all or part of them.

417 Pleadings—kind of damages etc

(1) If damages are claimed in a pleading, the pleading must state—
(a) each kind of damages claimed; and
(b) for any damages that are not general damages—the amount of
the damages claimed that is known to the party.
(2) Without limiting rule 407 (1) (d) (Pleadings—matters to be
specifically pleaded), 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.
(3) If practicable, the party must also plead each kind of general damages
and state the nature of the damages claimed for each kind.

418 Pleadings—amount of unliquidated damages

(1) A pleading must not claim an amount for unliquidated damages.

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Chapter 2 Civil proceedings generally
Part 2.6 Pleadings
Division 2.6.3 Pleadings—general
Rule 419

(2) However, a pleading in a proceeding in the Magistrates Court may

claim an amount for unliquidated damages if—
(a) the claim is for the recovery of 1 or more of the following if it is
or they were a consequence of damage alleged to have happened
because of the defendant’s negligence:
(i) the cost of repairing a motor vehicle;
(ii) a motor vehicle’s value, less any salvage value;
(iii) the cost of towing a motor vehicle; or
(b) the claim is for the recovery of 1 or both of the following if it is
or they were a consequence of damage alleged to have happened
because of the defendant’s negligence in driving, riding or
controlling a motor vehicle:
(i) the cost of repairing property;
(ii) property’s value, less any salvage value.
(3) In this rule:
property does not include a motor vehicle.

419 Pleadings—other relief

The court may grant relief other than that stated in the pleadings
whether or not other relief is expressly claimed in the pleadings.

Division 2.6.3 Pleadings—general

425 Pleadings—striking out
(1) The court may, at any stage of a proceeding, order that a pleading or
part of a pleading be struck out if the pleading—
(a) discloses no reasonable cause of action or defence appropriate
to the nature of the pleading; or

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 Civil proceedings generally Chapter 2
Pleadings Part 2.6
Pleadings—general Division 2.6.3
Rule 426

(b) may tend to prejudice, embarrass or delay the fair trial of the
proceeding; or
(c) is frivolous, scandalous, unnecessary or vexatious; or
(d) is otherwise an abuse of the process of the court.
Note 1 The registrar may also reject a document that is filed if it does not comply
with these rules (see r 6140 (Rejecting documents—noncompliance with
rules etc) or if it is an abuse of the court’s process or is frivolous or
vexatious (see r 6142 (Rejecting documents—abuse of process etc)).
Note 2 Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.
Note 3 Rule 6901 (Orders may be made on conditions) provides that the court
may make an order under these rules on any conditions it considers
appropriate.

(2) The court may receive evidence on the hearing of an application for
an order under this rule.
(3) If the court makes an order under this rule, it may also make any other
order it considers appropriate, including, for example—
(a) if the court makes an order under subrule (1) (a)—an order
staying or dismissing the proceeding or entering judgment; and
(b) an order about the future conduct of the proceeding.

426 Pleadings—trial without

(1) This rule applies if, in a proceeding, the court considers that—
(a) the issues between the parties can be defined without pleadings
or further pleadings; or
(b) for any other reason the proceeding may properly be tried
without pleadings or further pleadings.

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Chapter 2 Civil proceedings generally
Part 2.6 Pleadings
Division 2.6.4 Particulars
Rule 430

(2) The court may order that the proceeding be tried without pleadings or
further pleadings.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(3) If the court makes an order under subrule (2), it may order the parties
to prepare a statement of facts and issues involved in the proceeding
or, if the parties do not agree on a statement, may settle a statement
itself.

Division 2.6.4 Particulars

430 Pleadings—all necessary particulars must be included
(1) 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 identify the case that the pleading
requires the opposite party to meet; and
(c) support a matter specifically pleaded under rule 407
(Pleadings—matters to be specifically pleaded).
(2) This rule does not require a party to include in a pleading particulars
of any claim for interest up to judgment other than those required by
rule 51 (2) (Originating claim—additional matters for claims for debt
and liquidated demands) or rule 304 (2) (Third-party notice—
additional matters for claims for debt and liquidated demands).

431 Pleadings—use of ‘Scott schedule’

(1) This rule applies to a proceeding involving a building, technical or
other matter in which a number of items of a claim are in dispute in
relation to liability, amount or both.

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 Civil proceedings generally Chapter 2
Pleadings Part 2.6
Particulars Division 2.6.4
Rule 432

(2) The party making the claim—

(a) may prepare and file a ‘Scott schedule’; and
(b) if the court orders—must prepare and file a ‘Scott schedule’.
Note 1 See approved form 2.14 (Scott schedule) AF2006-259.
Note 2 Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(3) A party on whom a Scott schedule is served must complete and file
the schedule.
Note A ‘Scott schedule’ is a document that contains a summary of the parties’
claims and defences. The summary is set out in columns so that it is easy
to see the issues on which the parties agree and those on which they do
not agree.

432 Pleadings—negligence and breach of statutory duty

(1) If a party pleads negligence (whether contributory or otherwise) or
breach of statutory duty, the particulars must state the facts and
circumstances of the negligent act or omission or breach of statutory
duty.
(2) Also, if the party alleges 2 or more negligent acts or omissions or
breaches of statutory duty, the particulars must, as far as practicable,
state separately the facts and circumstances of each negligent act or
omission or breach of statutory duty.

433 Pleadings—how particulars must be given

(1) The particulars to be given by a pleading 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.

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Chapter 2 Civil proceedings generally
Part 2.6 Pleadings
Division 2.6.4 Particulars
Rule 434

434 Pleadings—application for better particulars

(1) A party may apply to the court for an order for better particulars of
the opposite party’s pleading.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(2) The court may make any order under this rule it considers appropriate,
including, for example, an order about the future conduct of the
proceeding.
Note Rule 6901 (Orders may be made on conditions) provides that the court
may make an order under these rules on any conditions it considers
appropriate.

(3) Unless the court otherwise orders, 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.

435 Pleadings—failure to comply with better particulars order

If a party does not comply with an order made under rule 434
(Pleadings—application for better particulars), the court may make
the order, including give the judgment, it considers appropriate.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

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 Civil proceedings generally Chapter 2
Pleadings Part 2.6
Answering pleadings Division 2.6.5
Rule 440

Division 2.6.5 Answering pleadings

Note to div 2.6.5
For rules about when a defence must be filed etc, see r 102 (Notice of intention to
respond and defence—filing and service). For an answer to a counterclaim, see
r 466 (Counterclaim—answer to).

440 Pleadings—answering
(1) In response to a pleading, a party may plead a denial, non-admission
or admission.
(2) A plea of non-admission operates as a denial.

441 Pleadings—denials and non-admissions

(1) It is not enough for a party to deny generally the grounds alleged in a
pleading.
(2) Instead, a party must deal specifically with each allegation of fact.
(3) However, a pleading in response to a pleading that alleges damage or
damages is taken not to admit the allegation unless it specifically
admits the allegation.
(4) A party in a pleading must not deny an allegation of fact in the
previous pleading of an opposite party in an evasive way.
(5) Instead, a party must answer the point of substance.
Example
A plaintiff alleges that a defendant received an amount of money. It is not enough
for the defendant to deny that the defendant received that amount. Instead, the
defendant must deny that the defendant received that amount or any part of it, or
set out how much the defendant received.

(6) If an allegation is made with various circumstances, it is not enough

to deny it along with the circumstances.

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Chapter 2 Civil proceedings generally
Part 2.6 Pleadings
Division 2.6.5 Answering pleadings
Rule 442

442 Pleadings—defence to debt and liquidated demand

claims
(1) In a defence to a claim for debt or a liquidated demand, it is not
enough for the defendant simply to deny the debt.
(2) Instead, the defendant must deny the matters of fact from which the
defendant’s liability is alleged to arise that are disputed.

443 Pleadings—defence to personal injury claims

(1) This rule applies to a defence to an originating claim that includes a
claim for damages for personal injury.
(2) The defendant must, in the defence, specifically admit or deny every
material allegation of fact in the originating claim and statement of
claim, including any allegation by way of particulars.
(3) The allegation is taken to be admitted if the defendant does not
comply with subrule (2) in relation to it.
(4) A statement in the defence that the defendant does not know and
therefore cannot admit a fact alleged in the originating claim or
statement is taken to be a denial.
(5) If the defendant wishes to prove a version of facts different from that
alleged in the originating claim or statement of claim, the defendant
must plead that version in the defence.
(6) The defendant must plead every ground of defence to be relied on,
together with the facts necessary to establish each ground.

444 Pleadings—defence to proceeding on bill of exchange etc

(1) This rule applies to a proceeding on a bill of exchange, cheque or
promissory note.
(2) The defendant must deny some matter of fact in a defence in denial.
Examples

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 Civil proceedings generally Chapter 2
Pleadings Part 2.6
Answering pleadings Division 2.6.5
Rule 445

the drawing, making, endorsing, accepting, presenting, or notice of dishonour of

the bill, cheque or note

445 Pleadings—denial of representative capacity or

partnership constitution
(1) This rule applies if a party wants to deny—
(a) another party’s right to claim as a representative (including a
personal representative or trustee) of someone else; or
(b) the alleged constitution of a partnership.
(2) The party must deny it specifically.

446 Pleadings—denial of contract

(1) This rule applies if a contract is alleged by a party in a pleading.
(2) A bare denial of the contract by the opposite party is taken only as a
denial in fact of the express contract alleged or of the matters of fact
from which the contract may be implied by law, and not as a denial
of the legality or sufficiency in law of the contract.
(3) In this rule:
contract includes promise and agreement.

447 Pleadings—allegations admitted unless denied etc

(1) An allegation of fact made by a party in a pleading is taken to be
admitted by any opposite party required to plead in response unless,
either expressly or by necessary implication—
(a) it is denied in the pleading of the opposite party; or
(b) it is stated to be not admitted in the pleading of the opposite
party; or
(c) a joinder of issue under rule 482 (Pleadings—joinder of issue)
operates as a denial of the allegation.

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Chapter 2 Civil proceedings generally
Part 2.6 Pleadings
Division 2.6.6 Special defences
Rule 448

Note Rule 441 (3) (Pleadings—denials and non-admissions) provides that a

pleading in response to a pleading that alleges damage or damages is
taken to deny the allegation unless it specifically admits the allegation.

(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 with a legal disability.

448 Pleadings—unreasonable denials and non-admissions

If the court considers that an allegation of fact denied or not admitted
should have been admitted, it may order the party who denied or did
not admit the allegation to pay the additional costs caused by the
denial or non-admission.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

449 Pleadings—confession of defence

(1) If a defendant alleges a defence that arose after the proceeding was
started, the plaintiff may file and serve a confession of defence.
Note See approved form 2.15 (Confession of defence) AF2006-260.

(2) On filing and serving a confession of defence, the plaintiff may obtain
a judgment for costs to be assessed up to the day the defence was
served on the plaintiff, unless the court otherwise orders.
(3) In this rule:
defendant includes a defendant to a counterclaim.

Division 2.6.6 Special defences

455 Pleadings—defence of tender
A defendant cannot plead a defence of tender before the proceeding
was started unless the defendant has paid the amount tendered into
court or filed a bond or other security approved by the registrar for
the payment of the amount.

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 Civil proceedings generally Chapter 2
Pleadings Part 2.6
Counterclaims Division 2.6.7
Rule 456

456 Pleadings—defence of set-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, whether or not 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
give the defendant other relief to which it considers the
defendant is entitled.
Examples of other relief
injunction, or stay, if within the court’s jurisdiction

(3) Despite subrules (1) and (2)—

(a) if the court considers that dealing with a set-off in a proceeding
would unfairly prejudice a party, embarrass or delay the hearing
of the proceeding or be otherwise inconvenient, it may, by order,
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
hearing; or
(b) if the court considers a set-off should not be allowed, it may, by
order, set aside a defence or counterclaim by way of set-off.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

Division 2.6.7 Counterclaims

460 Counterclaim—cause of action arising after start of
proceeding
A counterclaim may be made in relation to a cause of action that arose
after the proceeding started.

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Chapter 2 Civil proceedings generally
Part 2.6 Pleadings
Division 2.6.7 Counterclaims
Rule 461

461 Counterclaim—against plaintiff

(1) In a proceeding, a defendant may make a counterclaim against a
plaintiff, instead of bringing a separate proceeding.
Note See r 464 (Counterclaim—pleading) and approved form 2.9 (Defence and
counterclaim) AF2015-28.

(2) The defendant must state specifically that the defendant is making a
counterclaim.
(3) For the Magistrates Court, the amount claimed by the counterclaim
must not be more than the maximum amount for which the court has
jurisdiction.
Note 1 The Magistrates Court Act 1930, pt 4.2 (Civil jurisdiction) deals with the
civil jurisdiction of the Magistrates Court under that Act. See also r 463
(Counterclaim—abandonment of excess in Magistrates Court).
Note 2 See r 219 (Counterclaim or set-off when co-plaintiff wrongly included).

462 Counterclaim—against additional party

(1) A defendant to a proceeding may make a counterclaim against a
person other than a plaintiff (whether or not the person is 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.
Note See r 464 (Counterclaim—pleading) and approved form 2.9 (Defence and
counterclaim) AF2015-28.

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 Civil proceedings generally Chapter 2
Pleadings Part 2.6
Counterclaims Division 2.6.7
Rule 462

(2) If a defendant to a proceeding counterclaims against a person who is

not a party to the original proceeding, the defendant must—
(a) make the counterclaim; and
(b) serve the following on the person within the time allowed for
service on a plaintiff:
(i) the defence (including the counterclaim);
(ii) a sealed copy of any directions about filing and serving the
defence (including the counterclaim);
(iii) a copy of a sealed copy of any other relevant order made in
relation to the proceeding;
(iv) a copy of a sealed copy of the originating claim and its
statement of claim;
(v) a copy of a stamped copy of all other pleadings filed in the
proceeding;
(vi) a copy of a stamped copy of all applications in the
proceeding not finally disposed of;
Note Application in a proceeding is defined in r 6006.

(vii) a copy of all affidavits filed in the proceeding, other than

affidavits that are not relevant to the issues arising on the
counterclaim;
(viii) a copy of all other documents that have been served by the
plaintiff on the defendant, or by the defendant on the
plaintiff, and are intended to be relied on;
(ix) a copy of all amendments of any document mentioned in
subparagraphs (iv) to (viii) or details of the amendments.
(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 (including the counterclaim).

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Chapter 2 Civil proceedings generally
Part 2.6 Pleadings
Division 2.6.7 Counterclaims
Rule 463

(4) If a defendant makes a counterclaim against a person not a party to

the original proceeding, the relevant provisions (see subrule (5))
apply, with necessary changes, as if—
(a) the counterclaim were a proceeding started by originating claim;
and
(b) the party making the counterclaim were a plaintiff; and
(c) each party against whom the counterclaim is made were a
defendant.
(5) In subrule (4):
relevant provisions means the following provisions:
• part 2.2 (Starting civil proceedings)
• part 2.3 (Notice of intention to respond and defence)
• division 2.11.2 (Default by plaintiff)
• division 2.11.3 (Default by defendant)
• division 2.11.4 (Default by defendant—partial defence)
• division 2.11.5 (Summary judgment).

463 Counterclaim—abandonment of excess in Magistrates

Court
(1) This rule applies to a defendant in a proceeding in the Magistrates
Court if the defendant has a cause of action against a plaintiff for an
amount that is more than the maximum amount for which the court
has jurisdiction (the maximum amount).
(2) The defendant may make a counterclaim in relation to the cause of
action if the defendant abandons the amount over the maximum
amount in the counterclaim.
(3) In the counterclaim proceeding—
(a) the defendant may not recover an amount that is more than the
maximum amount; and

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 Civil proceedings generally Chapter 2
Pleadings Part 2.6
Counterclaims Division 2.6.7
Rule 464

(b) final judgment in the proceeding operates in full discharge of all

claims in relation to the cause of action.

464 Counterclaim—pleading
A counterclaim must be included in the same document as the
defence.

465 Counterclaim—plaintiff may rely on previous pleadings

A plaintiff to a counterclaim may, in the counterclaim, plead all or
any of the facts on which the plaintiff relies by referring to the
previous pleadings in the proceeding in which the counterclaim is
made.

466 Counterclaim—answer to
(1) A defendant to a counterclaim may plead to the counterclaim by filing
and serving an answer to the counterclaim.
Note See approved form 2.16 (Answer to counterclaim) AF2015-29.

(2) If a plaintiff in a proceeding is the defendant to a counterclaim and is

filing and serving a reply, any answer to the counterclaim must be
included in the reply.
(3) Any answer to a counterclaim must be filed and served not later
than—
(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.

467 Counterclaim—defence arising after answer

(1) This rule applies if a ground of defence to a counterclaim arises
after—
(a) the defendant to the counterclaim files an answer to the
counterclaim; or

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Chapter 2 Civil proceedings generally
Part 2.6 Pleadings
Division 2.6.7 Counterclaims
Rule 468

(b) the time limited by rule 466 (Counterclaim—answer to) for the
defendant to the counterclaim to file an answer to the
counterclaim ends.
(2) The defendant to the counterclaim may file a further answer to the
counterclaim not later than 7 days after the day the ground of defence
arises or at a later time with the court’s leave.
Note Pt 6.2 (Applications in proceedings) applies to an application for leave.

(3) The registrar must seal the original and filed copies of the further
answer to the counterclaim.
Note The registrar may reject a further answer to a counterclaim that is filed
(see r 6140 (Rejecting documents—noncompliance with rules etc).

(4) The defendant to the counterclaim must serve a sealed copy of the
further answer to the counterclaim on the plaintiff to the counterclaim
at the plaintiff’s address for service on the day it is filed.
Note Rule 449 (Pleadings—confession of defence) applies to a defendant to a
counterclaim.

468 Counterclaim—effect of no answer

If no answer to a counterclaim is filed and served, the facts stated in
the counterclaim are taken to have been admitted.

469 Counterclaim—response to answer

(1) A plaintiff to a counterclaim may file a response to an answer to the
counterclaim.
Note See approved form 2.17 (Response to answer to counterclaim)
AF2006-262.

(2) It is not necessary for a party to file a response only for the purpose
of denying the allegations in the answer to the counterclaim (that is,
to join issue on the answer).

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 Civil proceedings generally Chapter 2
Pleadings Part 2.6
Counterclaims Division 2.6.7
Rule 470

(3) The response must be filed not later than 14 days after the day the
answer to the counterclaim is served on the plaintiff to the
counterclaim.
Note Rule 6351 (Time—extending and shortening by court order) provides for
the extending of time by the court.

(4) The plaintiff to the counterclaim must serve a sealed copy of the
response on the defendant to the counterclaim at the defendant’s
address for service on the day it is filed.

470 Counterclaim—conduct and pleading

(1) These rules apply, with necessary changes, to the conduct and
pleading of a counterclaim 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 the
original proceeding; and
(c) the counterclaim were an originating process.
(2) However, if a party against whom a counterclaim is made has filed
and served a notice of intention to respond or defence in accordance
with part 2.3 (Notice of intention to respond and defence), the party
is not required to file and serve a notice of intention to respond in
relation to the counterclaim.
(3) Subject to rule 471 (Counterclaim—order for separate hearing), a
counterclaim must be heard at the hearing of the plaintiff’s claim.

471 Counterclaim—order for separate hearing

(1) The court may, at any time, order that a counterclaim be heard
separately from the hearing for the proceeding in which the
counterclaim is made if it considers that hearing them together
would—
(a) unfairly prejudice a party; or

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Chapter 2 Civil proceedings generally
Part 2.6 Pleadings
Division 2.6.7 Counterclaims
Rule 472

(b) embarrass or delay the hearing of the proceeding; or

(c) be otherwise inconvenient.
(2) The court may order that a counterclaim be heard separately—
(a) on application by a party before the party files and serves an
answer to the counterclaim; or
(b) on its own initiative.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(3) The court may make the orders it considers appropriate about the
conduct of the separate hearing.

472 Counterclaim—after judgment etc in original proceeding

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

473 Counterclaim—judgment 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.

474 Counterclaim—stay 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.
Note Pt 6.2 (Applications in proceedings) applies to an application for a stay.

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 Civil proceedings generally Chapter 2
Pleadings Part 2.6
Progress of pleading Division 2.6.8
Rule 480

Division 2.6.8 Progress of pleading

480 Pleadings—reply to defence
(1) A plaintiff may file a reply to a defence.
Note See approved form 2.18 (Reply to defence) AF2006-263.

(2) It is not necessary for a party to file a reply only for the purpose of
denying the allegations in the defence (that is, to join issue on the
defence).
(3) The reply must be filed not later than 14 days after the day the defence
is served on the plaintiff.
Note Rule 6351 (Time—extending and shortening by court order) provides for
the extending of time by the court.

(4) The plaintiff must serve a sealed copy of the reply on the defendant
at the defendant’s address for service on the day it is filed.
Note 1 Rule 469 deals with the response to an answer to a counterclaim.
Note 2 Address for service is defined in the dictionary.

481 Pleadings—after reply

(1) A party to a proceeding must not file a pleading after a reply (the
further pleading) without the court’s leave.
Note Pt 6.2 (Applications in proceedings) applies to an application for leave.

(2) A party may apply for leave to file the further pleading not later than
14 days after the day the party is served with the pleading to which
the further pleading responds.
(3) However, if a ground of defence to a set-off arises after a plaintiff
files a reply, or the time limited by rule 480 (Pleadings—reply to
defence) for a plaintiff to file a reply ends, the plaintiff may file a
further reply not later than 7 days after the day the ground of defence
arises or at a later time with the court’s leave.

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Chapter 2 Civil proceedings generally
Part 2.6 Pleadings
Division 2.6.8 Progress of pleading
Rule 482

(4) The registrar must seal the original and filed copies of the further
reply.
Note The registrar may reject a further defence that is filed (see r 6140
(Rejecting documents—noncompliance with rules etc).

(5) The plaintiff must serve a sealed copy of the further reply on each
active party at the party’s address for service on the day it is filed.
Note Address for service is defined in the dictionary.

482 Pleadings—joinder of issue

(1) A pleading may expressly join issue on a previous pleading.
Example
an express denial

(2) An express joinder of issue on a pleading operates as a denial of every

allegation of fact made in the pleading other than an allegation that is
expressly admitted.
(3) If there is no reply by a plaintiff to a defence, there is an implied
joinder of issue on the defence.
(4) If there is no answer by the opposite party to a reply or subsequent
pleading, there is an implied joinder of issue on the reply or
subsequent pleading.
(5) An implied joinder of issue on a pleading operates as a denial of every
allegation of fact made in the pleading.

483 Pleadings—close
(1) 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) in any other case—7 days after the day the defence, or answer
to a counterclaim, is served.

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 Civil proceedings generally Chapter 2
Pleadings Part 2.6
Admissions Division 2.6.9
Rule 490

(2) If a third-party notice, or subsequent notice, is served in a proceeding,

the pleadings in the proceeding on that notice close—
(a) if a pleading is served after the defence, or answer to a
counterclaim, to the notice—on service of the pleading; or
(b) in any other case—7 days after the day the defence, or answer
to a counterclaim, to the notice is served.

Division 2.6.9 Admissions

490 Admissions—voluntary admission
(1) A party to a proceeding may, in a pleading or notice served on another
party, admit, in favour of the other party, the facts stated in the
pleading or notice.
(2) An admission made under subrule (1) has effect only for the
proceeding.

491 Admissions—notice 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 stated in the notice.
Note See
• approved form 2.19 (Notice to admit facts) AF2006-264
• approved form 2.20 (Notice to admit authenticity of documents)
AF2006-265.

(2) The other party is taken to admit, for the proceeding only, each of the
facts, or the authenticity of each of the documents, stated in the notice
if, at the end of 14 days after the day the notice is served on the party,
the party has not served a notice on the first party disputing the fact
or authenticity of the document.
Note See
• approved form 2.21 (Notice disputing facts) AF2006-266

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Chapter 2 Civil proceedings generally
Part 2.6 Pleadings
Division 2.6.9 Admissions
Rule 492

• approved form 2.22 (Notice disputing authenticity of documents)

AF2006-267.

(3) If the other party serves a notice under subrule (2) disputing a fact or
authenticity of a document and afterwards the fact or authenticity of
the document is proved in the proceeding, the party must pay the costs
of the proof, unless the court otherwise orders.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

492 Admissions—withdrawal
(1) A party may withdraw an admission made under rule 490
(Admissions—voluntary admission) or taken to have been made
under rule 491 (2) (Admissions—notice to admit facts or documents)
only with the court’s leave.
(2) The court may order the withdrawal of the admission.
Note 1 Pt 6.2 (Applications in proceedings) applies to an application for an order
otherwise ordering.
Note 2 Rule 6901 (Orders may be made on conditions) provides that the court
may make an order under these rules on any conditions it considers
appropriate.

493 Admissions—orders on
(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 another
party’s application, make an order to which the party applying is
entitled on the admission.
Note Pt 6.2 (Applications in proceedings) applies to an application for leave or
an order under this rule.

(2) The court may give judgment or make another order even though
other issues in the proceeding have not been decided.

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 Civil proceedings generally Chapter 2
Pleadings Part 2.6
Admissions Division 2.6.9
Rule 493

(3) If an application under this rule is made by a plaintiff, the court may,
instead of assessing damages, enter judgment for the plaintiff against
the defendant for damages to be assessed.

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Chapter 2 Civil proceedings generally
Part 2.7 Amendment

Rule 500

Part 2.7 Amendment

500 Application—pt 2.7

This part applies in relation to documents (other than affidavits) that
have been filed in a proceeding.
Note See r 6107 (Documents—alterations) about alterations to documents
before filing.

501 Amendment—when must be made

All necessary amendments of a document must be made for the
purpose of—
(a) deciding the real issues in the proceeding; or
(b) correcting any defect or error in the proceeding; or
(c) avoiding multiple proceedings.

502 Amendment—of documents

(1) At any stage of a proceeding, the court may give leave for a party to
amend, or direct a party to amend, an originating process, anything
written on an originating process, a pleading, an application or any
other document filed in the court in a proceeding in the way it
considers appropriate.
(2) The court may give leave, or give a direction, on application by the
party or on its own initiative.
Note 1 Pt 6.2 (Applications in proceedings) applies to an application for leave or
a direction under this rule.
Note 2 Rule 6902 (Leave may be given on conditions) provides that, if the court
gives leave under these rules, it may give the leave on the conditions it
considers appropriate.

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 Civil proceedings generally Chapter 2
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Rule 503

(3) The court may give leave to make an amendment even if the effect of
the amendment would be to include a cause of action arising after the
proceeding was started.
(4) If there is a mistake in the name or identity of a party, the court must
give leave for, or direct the making of, amendments necessary to
correct the mistake, even if the effect of the amendments is to
substitute another person as a party.
(5) This rule does not apply in relation to an amendment of an order.
Note See r 6906 (Mistakes in orders or court certificates) for amendment of
orders.

(6) This rule is subject to rule 503 (Amendment—after limitation period).

503 Amendment—after limitation period

(1) This rule applies in relation to an application for leave in a proceeding
to make an amendment mentioned in this rule if a relevant period of
limitation, current at the date the proceeding was started, has ended.
Note Pt 6.2 (Applications in proceedings) applies to an application for leave
under this rule.

(2) The court may give leave to make an amendment correcting a mistake
in the name or identity of a party, even if the effect of the amendment
is to substitute a new party, only if—
(a) the court considers it appropriate; and
(b) the court is satisfied that the mistake sought to be corrected—
(i) was a genuine mistake; and
(ii) was not misleading or likely to cause any reasonable doubt
about the identity of the person intending to sue or intended
to be sued.

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Chapter 2 Civil proceedings generally
Part 2.7 Amendment

Rule 504

(3) The court may give leave to make an amendment changing the
capacity in which a party sues, whether as plaintiff or counter-
claiming defendant, only if—
(a) the court considers it appropriate; and
(b) the changed capacity in which the party would then sue is a
capacity in which the party might have sued on the day the
proceeding was started by the party.
(4) The court may give leave to make an amendment to include a new
cause of action only if—
(a) the court considers it appropriate; and
(b) the new cause of action arises out of the same facts or
substantially the same facts as a cause of action for which relief
has already been claimed in the proceeding by the party applying
for leave to make the amendment.

504 Amendment—of originating process

(1) An originating process may be amended only with the court’s leave.
Note 1 Pt 6.2 (Applications in proceedings) applies to an application for leave
under this rule.
Note 2 The registrar may make an order amending the originating process if the
parties affected by the order consent to it and the registrar considers it
appropriate (see r 1611 (Orders—by consent)).

(2) This rule does not apply to a pleading or particular included in an

originating process.

505 Amendment—of pleadings before close of pleadings

(1) A party may, without the court’s leave, amend the party’s
pleadings—
(a) once before the close of pleadings; and

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 Civil proceedings generally Chapter 2
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Rule 506

(b) as often as necessary before the close of pleadings, with the

agreement of all other parties to the proceeding.
(2) This rule does not apply to an amendment for which the court’s leave
is required.

506 Amendment—of pleadings disallowed

(1) If a party makes an amendment without the court’s leave before the
close of pleadings, another party may, not later than 14 days after the
day the amendment is served on the party, apply to the court to
disallow all or part of the amendment.
Note Pt 6.2 (Applications in proceedings) applies to an application under this
rule.

(2) On the application, the court may make any order it considers
appropriate.
(3) However, the court must disallow all or part of the amendment if
satisfied that, had an application for leave to make the amendment or
part been made, it would not have given leave to make the amendment
or part.

507 Amendment—of pleadings after close of pleadings

A party may amend the party’s pleadings after the close of pleadings
only with the court’s leave.
Note 1 Pt 6.2 (Applications in proceedings) applies to an application for leave
under this rule.
Note 2 The registrar may make an order amending a pleading if the parties
affected by the order consent to it and the registrar considers it
appropriate (see r 1611 (Orders—by consent)).

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Chapter 2 Civil proceedings generally
Part 2.7 Amendment

Rule 508

508 Amendment—when leave to amend ceases to have effect

An order giving a party leave to amend a document ceases to have
effect if the party has not amended the document in accordance with
the order—
(a) at the end of the time stated in the order for making the
amendment; or
(b) if no time is stated in the order—at the end of 14 days after the
day the order was made.

509 Amendment—procedure
(1) An amendment of a document made under this part must be
distinguished so that the changes are identifiable.
(2) A party amending a document must file—
(a) a copy of the document that contains the amendments written on
it; and
(b) a notice stating the following:
(i) the date of the amendment;
(ii) either—
(A) if the amendment was made with the court’s leave—
a statement to that effect and the date leave was given;
or
(B) if the amendment was made without the court’s
leave—the number of the rule under which it was
made.
(3) The notice must be on or attached to the copy of the document
mentioned in subrule (2) (a).
Note The copy of the document and notice must be served on each other active
party (see r 511).

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 Civil proceedings generally Chapter 2
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Rule 510

(4) However, if an amendment on a copy of the document is inconvenient

or makes the document difficult to read, the party making the
amendment must file—
(a) a revised document incorporating and distinguishing the
amendments; and
(b) a notice stating the matters mentioned in subrule (2) (b) (i) and
(ii).
(5) The notice must be on or attached to the revised document mentioned
in subrule (4) (a).
Note The copy of the document and notice must be served on each other active
party (see r 511).

(6) Subject to rule 241 (Included or substituted defendant—filing and

service of amended originating process), if an originating process is
amended and the amendment is made on a copy of the originating
process, the registrar must stamp the court’s seal on the revised
originating process near the amendment.
(7) If a revised originating process is filed under subrule (4), the registrar
must seal the revised originating process.
(8) The court may direct how an amendment of a document is to be made.
Note Pt 6.2 (Applications in proceedings) applies to an application for a
direction under this subrule.

510 Amendment—person required to make

If the court orders an amendment be made to a document, it may order
a party, the registrar or other appropriate person to make the
amendment.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

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Chapter 2 Civil proceedings generally
Part 2.7 Amendment

Rule 511

511 Amendment—service of amended or revised document

etc
If a document has been served and is later amended, the party making
the amendment must serve on each other active party—
(a) if the amendment is made on the document under rule 509 (2)—
a copy of the document as amended and the notice mentioned in
rule 509 (2) (b); or
(b) if a revised document is filed under rule 509 (4)—a copy of the
revised document and the notice mentioned in rule 509 (4) (b).
Note Active party is defined in the dictionary.

512 Amendment—pleading to
(1) If a party amends a pleading, an opposite party may plead to the
amended pleading or amend the opposite party’s own pleading.
(2) The pleading or amendment must be served not later than the later of
the following:
(a) the end of the time the opposite party then has to plead;
(b) 14 days after the day the amendment is served on the opposite
party.
Note Rule 6351 (Time—extending and shortening by court order) provides for
the extending of time by the court.

(3) If an opposite party has pleaded before being served with the
amendment and does not plead again within the time allowed under
subrule (2), the opposite party is taken to rely on the original pleading
as an answer to the amended pleading.

513 Amendment—costs
(1) This rule applies to the following costs:
(a) costs of an amendment under this part;

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 Civil proceedings generally Chapter 2
Amendment Part 2.7

Rule 514

(b) costs thrown away because of the amendment.

(2) Unless the court otherwise orders, the costs are payable by the party
making the amendment.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
otherwise ordering.

514 Amendment—taking effect

(1) If a document is amended under this part, the amendment takes effect
on and from the date of the document.
(2) However, an amendment including or substituting a cause of action
arising after the proceeding started takes effect on the day the order
giving leave was made.
(3) Despite subrule (2), if an amendment mentioned in that rule is made,
then, for a limitation period, the proceeding as amended is taken to
have started when the original proceeding started.
(4) This rule applies unless the court otherwise orders.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
otherwise ordering.

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Chapter 2 Civil proceedings generally
Part 2.8 Disclosure
Division 2.8.1 Interpretation—pt 2.8
Rule 600

Part 2.8 Disclosure

Division 2.8.1 Interpretation—pt 2.8
600 Definitions—pt 2.8
In this part:
discoverable document means a document that is discoverable under
rule 605 (Discoverable documents).
document—see the Evidence Act, dictionary, part 1 and part 2,
section 8.
Note Document is defined in the Legislation Act, dict, pt 1 as any record of
information, and includes—
(a) anything on which there is writing; or
(b) anything on which there are figures, marks, numbers, perforations,
symbols or anything else having a meaning for people qualified to
interpret them; or
(c) anything from which images, sounds, messages or writings can be
produced or reproduced, whether with or without the aid of
anything else; or
(d) a drawing, map, photograph or plan.
The Evidence Act, dict, pt 2, s 8 extends the meaning of document as
follows:
‘A reference in this Act to a document includes a reference to the
following:
(a) any part of the document;
(b) any copy, reproduction or duplicate of the document or of any part
of the document;
(c) any part of the copy, reproduction or duplicate.’.

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 Civil proceedings generally Chapter 2
Disclosure Part 2.8
Interpretation—pt 2.8 Division 2.8.1
Rule 601

government means—
(a) the Commonwealth, a State or Territory; or
(b) a Minister, department or agency of the Commonwealth, a State
or Territory; or
(c) the government of a foreign country.
list of documents means a list of documents under rule 608 (List of
discoverable and privileged documents etc).
privileged from production—see rule 601.
respondent, in relation to a notice for non-party production, means
the person to whom the notice is directed.

601 Meaning of privileged from production—pt 2.8

For this part, a document is privileged from production only if—
(a) it is a document of which evidence could not be adduced, or
could not be adduced over the objection of a person, because of
the Evidence Act, part 3.10 (Privileges), other than section 128
or section 130; or
Note Section 128 deals with privilege against self-incrimination
and s 130 deals with exclusion of evidence of matters of state.

(b) the party who would otherwise give discovery is an individual

and the contents of the document may tend to prove that the
party—
(i) has committed an offence against or arising under an
Australian law, or a law of a foreign country, within the
meaning of the Evidence Act; or
(ii) is liable to a civil penalty within the meaning of the
Evidence Act; or

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Chapter 2 Civil proceedings generally
Part 2.8 Disclosure
Division 2.8.2 Disclosure of documents
Rule 605

(c) it is a document of which evidence could not be adduced, or

could not be adduced over the objection of a person, because of
the Evidence Act, section 130, unless the court decides that the
document has stopped being privileged from production.
Note 1 The Evidence Act, dict, pt 2, s 9 deals with the meaning of
references to laws, and dict, pt 1 defines Australian law.
Note 2 The Evidence Act, dict, pt 2, s 3 provides that a person is taken to
be liable to a civil penalty if, in an Australian or overseas
proceeding (other than a criminal proceeding), the person would be
liable to a penalty arising under an Australian law or a law of a
foreign country.

Division 2.8.2 Disclosure of documents

605 Discoverable documents
(1) A document that is, or has at any time been, in the possession of a
party to a proceeding is discoverable by the party if it—
(a) relates, directly or indirectly, to a matter in issue in the
proceeding; or
(b) is mentioned, expressly or by necessary implication, in a
pleading or notice filed in the proceeding.
(2) However, a document is not discoverable by a party if it—
(a) is filed in court in the proceeding; or
(b) relates only to 1 or more items of special damage, unless another
party to the proceeding asks for the document to be discovered;
or
(c) is mentioned in a pleading or notice filed in the proceeding by
another party, unless it is discoverable on another ground; or
(d) is a written communication in relation to the proceeding
between a solicitor for the party requiring disclosure and a
solicitor for the disclosing party; or

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 Civil proceedings generally Chapter 2
Disclosure Part 2.8
Disclosure of documents Division 2.8.2
Rule 605

(e) is the party’s brief to the party’s counsel; or

(f) is an advice to the party from the party’s counsel.
(3) Also, a document is not discoverable by a party to a proceeding if the
document is—
(a) a written confidential communication in relation to the
proceeding, created after the commencement of the proceeding,
between—
(i) the party and a legal practitioner for the party; or
(ii) 2 or more legal practitioners for the party; or
(b) a note of an oral confidential communication in relation to the
proceeding, created after the commencement of the proceeding
(made in person or by telephone) between—
(i) the party and a legal practitioner for the party; or
(ii) 2 or more legal practitioners for the party.
(4) This rule applies unless the court otherwise orders.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
otherwise ordering.

(5) For this rule, a matter is in issue until it is—

(a) admitted or taken to be admitted; or
(b) withdrawn, struck out or otherwise disposed of.
(6) In this rule:
confidential communication—see the Evidence Act, section 117.
confidential document—see the Evidence Act, section 117.

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Chapter 2 Civil proceedings generally
Part 2.8 Disclosure
Division 2.8.2 Disclosure of documents
Rule 606

606 Orders about disclosure

(1) The court may make the following orders:
(a) an order that limits a party’s duty of disclosure;
(b) an order for a party to disclose discoverable documents;
(c) if the court considers that a party has not, or may not have,
adequately disclosed discoverable documents—an order for a
party to make further disclosure;
(d) an order for the lists of documents of the parties, or the list of
documents of a party, to be served in a stated electronic form;
(e) an order for disclosure of discoverable documents by the parties,
or a party, to be made in stages or in a stated way;
(f) an order for disclosure, or nondisclosure, by a party of any
discoverable document in the party’s possession;
(g) any other order about disclosure, or nondisclosure, of documents
that the court considers appropriate.
Example for par (e) and par (g)
The court may make an order permitting disclosure by bundle.

(2) The court may make an order under subrule (1) on the application of
a party or on its own initiative.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(3) Before making an order under subrule (1), the court must have regard
to the following matters:
(a) the principle that disclosure of documents in a proceeding
should be limited to disclosure that is reasonably necessary for
fairly disposing of the proceeding, or part of the proceeding, or
for saving costs;

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 Civil proceedings generally Chapter 2
Disclosure Part 2.8
Disclosure of documents Division 2.8.2
Rule 607

(b) the likely relevance and significance, in relation to the

proceeding, of the documents, or particular documents, that may
be discovered;
(c) the likely time, cost and inconvenience of disclosing documents
or particular documents.
(4) Subrule (3) does not limit the matters to which the court may have
regard.
(5) The court may inspect any document in a party’s possession to decide
whether it ought to be disclosed by the party.
(6) An affidavit must not be used for an application for an order under
this rule unless the court otherwise orders.

607 Notice to disclose discoverable documents

(1) A party to a proceeding may serve on another party a notice requiring
the other party to disclose discoverable documents for the proceeding.
Note For disclosure in relation to third parties, see r 315 (Third parties—
disclosure).

(2) Unless the court gives leave, the party must not serve a notice—
(a) before the close of pleadings; or
(b) after the matter is listed for hearing.
Note Pt 6.2 (Applications in proceedings) applies to an application for leave.

(3) The party who is served with the notice must—

(a) file the following documents not later than 28 days after the day
the party receives the notice:
(i) the party’s list of documents;
(ii) an affidavit verifying the list;

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Chapter 2 Civil proceedings generally
Part 2.8 Disclosure
Division 2.8.2 Disclosure of documents
Rule 608

(iii) if the party is represented by a solicitor—the solicitor’s

certificate of advice in relation to the list; and
Note 1 Rule 608 (List of discoverable and privileged documents etc) sets out
requirements for the list, affidavit and certificate.
Note 2 Rule 6351 (Time—extending and shortening by court order) provides for
the extending of time by the court.

(b) serve a copy of each of the documents on each other active party.

608 List of discoverable and privileged documents etc

(1) A party’s list of documents must—
(a) set out, in a convenient order—
(i) each document discoverable by the party; and
(ii) each document discoverable by the party that the party
claims to be privileged from production; and
(b) describe clearly and briefly—
(i) each document set out in the list; and
(ii) if the party claims the document is privileged from
production—the nature of the claim for privilege; and
(c) for each document not in the party’s possession, state—
(i) when and how it stopped being in the party’s possession;
and
(ii) to the best of the party’s knowledge, information and
belief, who now has possession of the document or, failing
that, what has become of the document.
Note See approved form 2.23 (List of documents) AF2006-268.

(2) For subrule (1), if any documents come within a group of documents
of the same kind, the list of documents must deal with the documents
as a group.

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 Civil proceedings generally Chapter 2
Disclosure Part 2.8
Disclosure of documents Division 2.8.2
Rule 608

(3) The affidavit verifying the party’s list of documents must state that
the person making the affidavit—
(a) has made reasonable inquiries about the party’s discoverable
documents; and
(b) believes that there are no discoverable documents, other than
those mentioned in the list of documents in accordance with
subrule (1) (a) (i), that are, or have been, in the party’s
possession; and
(c) believes that the documents mentioned in the list of documents
(other than the documents mentioned in subrule (1) (c)) are in
the party’s possession; and
(d) believes that the documents mentioned in subrule (1) (c) are in
the possession of the people (if any) respectively stated in the
list of documents in accordance with subrule (1) (c) (ii); and
(e) for any document mentioned in subrule (1) (c) for which no
person is stated—has no belief about who has possession of the
document.
Note See approved form 2.24 (Affidavit verifying list of documents)
AF2006-269.

(4) The certificate of advice by the party’s solicitor in relation to the

party’s list of documents must state that the solicitor—
(a) has advised the party of the party’s obligations in relation to—
(i) a notice requiring the party to disclose discoverable
documents for the proceeding; or
(ii) an order for the party to disclose discoverable documents;
and

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Chapter 2 Civil proceedings generally
Part 2.8 Disclosure
Division 2.8.2 Disclosure of documents
Rule 609

(b) is not aware of any discoverable documents, other than those

mentioned in the list of documents in accordance with
subrule (1) (a) (i), that are, or have been, in the party’s
possession.
Note See approved form 2.25 (Solicitor's certificate of advice in relation to list
of documents) AF2006-270.

609 Claim for privilege—challenge etc

(1) This rule applies if—
(a) a party claims in the party’s list of documents that a document
is privileged from production; and
(b) another party challenges the claim by letter given to the party
making the claim.
(2) The party making the claim must file and serve on the other party an
affidavit stating the claim not later than 7 days after the day the party
making the claim receives the letter from the other party challenging
the claim.
(3) The affidavit must be made by an individual who knows the facts
giving rise to the claim.
(4) On application by the party making the claim or a party challenging
the claim, the court may decide a dispute about whether a document
is privileged.
Note 1 For privilege, see the Evidence Act, pt 3.10.
Note 2 Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule in relation to a dispute.

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 Civil proceedings generally Chapter 2
Disclosure Part 2.8
Disclosure of documents Division 2.8.2
Rule 610

610 Claim for privilege—waiver

A claim for privilege from production for a document mentioned in a
list of documents served by a party is taken to be waived by the party
if—
(a) the list of documents does not comply with rule 608 (1) (a) (ii)
and (1) (b) (List of discoverable and privileged documents etc)
in relation to the document; or
(b) the party does not comply with rule 609 (2) (Claim for
privilege—challenge etc) in relation to the document.

611 Continuing disclosure

(1) This rule applies to a discoverable document if, after disclosing
documents under this part—
(a) a party to a proceeding becomes aware that the document was
wrongly omitted from the party’s list of documents; or
(b) the document comes into the party’s possession.
(2) However, this rule does not apply to a note of oral communications
(whether made in person or by telephone) in relation to the
proceeding between a solicitor for a party and a solicitor for another
party to the proceeding.
(3) The party must disclose the document to each party to whom the party
has been required to give discovery—
(a) not later than 7 days after the day the party—
(i) becomes aware of the omission; or
(ii) receives possession of the document; or
(b) if the hearing of the proceeding is to start within the 7-day
period, or has started—immediately.
(4) However, this rule does not require the party to disclose a document
if, apart from this rule, the party is not required to disclose it.

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Chapter 2 Civil proceedings generally
Part 2.8 Disclosure
Division 2.8.3 Production and inspection
Rule 620

Division 2.8.3 Production and inspection

620 Production of documents for inspection
(1) This rule applies if a party to a proceeding (the inspecting party) gives
notice to another party (the producing party) to produce for
inspection a document mentioned in—
(a) the producing party’s list of documents; or
(b) any originating process, pleading, particular or affidavit filed by
the producing party in the proceeding.
(2) The producing party must, in accordance with this rule, produce the
document for inspection by the inspecting party.
(3) However, the producing party does not have to produce—
(a) a document not required to be disclosed under this part; or
(b) a document for which the producing party has, in the party’s list
of documents, claimed privilege from production; or
(c) a document not required by the inspecting party to be produced;
or
(d) a document not in the producing party’s possession; or
(e) a document relating only to a claim in the proceeding that does
not affect the producing party.
(4) Production of documents by the producing party must take place on
the day, and at the time and place, stated by the producing party in a
notice given to the inspecting party, unless the producing party and
the inspecting party agree on alternative arrangements.
(5) The notice must—
(a) be given by the producing party to the inspecting party not later
than 7 days after the day the producing party is given the notice
under subrule (1); and

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 Civil proceedings generally Chapter 2
Disclosure Part 2.8
Production and inspection Division 2.8.3
Rule 621

(b) state—
(i) a day that is a business day and is not earlier than 7 days,
nor later than 21 days, after the day the notice under
subsection (4) is given to the inspecting party; and
(ii) a time between 9 am and 3 pm; and
(c) state as the place for production—
(i) the address for service of the producing party; or
(ii) if it is not practicable to produce the documents at that
address—some other reasonable place in the ACT.
Note Address for service is defined in the dictionary.

(6) The inspecting party may copy a document produced for inspection
and make notes of, or take extracts from, it.
(7) If the producing party makes a copy of a document for, and at the
request of, the inspecting party, the producing party is entitled to
payment for the copy under schedule 4 (Scale of costs).
(8) If the producing party discloses a document to the inspecting party
after inspection by the inspecting party, the producing party must
allow the inspecting party to inspect the document as soon as
practicable, either at the place where the inspection took place or
another place agreed by the parties.
(9) However, subrule (8) does not require the producing party to produce
a document if, apart from the subrule, the party is not required to
produce it.

621 Orders about production of documents for inspection

(1) This rule applies to the production of documents by a party to a
proceeding for inspection by another party to the proceeding.

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Chapter 2 Civil proceedings generally
Part 2.8 Disclosure
Division 2.8.3 Production and inspection
Rule 621

(2) The court may do any of the following:

(a) make an order for production of documents by 1 or more parties
to be made in stages or in a stated way;
(b) inspect a document to decide whether it ought to be produced;
(c) make an order about whether a document has to be produced by
a party (either generally, at a particular time or to a particular
party);
(d) make an order for a document stored on a computer to be
produced in a stated way or form;
(e) make any other order about production of documents that it
considers appropriate.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(3) Before making an order under subrule (2), the court must have regard
to the following matters:
(a) the principle that production of documents in a proceeding
should be limited to production that is reasonable and necessary
for fairly disposing of the proceeding, or part of the proceeding,
or for saving costs;
(b) the likely relevance and significance, in relation to the
proceeding, of the documents, or particular documents, that may
be produced;
(c) the likely time, cost and inconvenience of producing documents
or particular documents.
(4) Subrule (3) does not limit the matters to which the court may have
regard.

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 Civil proceedings generally Chapter 2
Disclosure Part 2.8
Production and inspection Division 2.8.3
Rule 622

622 Effect of inspection of documents disclosed by another

party
(1) A party who inspects a document (the inspecting party) that was
disclosed by another party (the producing party) is taken to admit—
(a) if the document is described in the list of documents as an
original document—that the document is an original document
and was printed, written or signed as it purports to have been;
and
(b) if the document is described in the list of documents as a copy—
that the document is a true copy; and
(c) if the document is described in the list of documents as a copy
of a document that was served—that the original was served as
described.
(2) However, subrule (1) does not apply if—
(a) the document is not admissible in evidence; or
(b) the inspecting party has in the party’s pleadings denied its
authenticity or that the original was served as described; or
(c) the inspecting party serves on the producing party, not later than
14 days after the day the inspecting party inspected the
document, a notice stating that the inspecting party disputes its
authenticity or that the original was served as described; or
(d) the court orders that it does not apply.

623 Production of documents at hearing of proceeding

A document disclosed under this part must be produced at the hearing
of the proceeding if—
(a) notice to produce it has been given with reasonable particularity
to a party by another party to the proceeding; and
(b) its production is asked for by the other party at the hearing.

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Chapter 2 Civil proceedings generally
Part 2.8 Disclosure
Division 2.8.4 Interrogatories
Rule 630

Division 2.8.4 Interrogatories

630 Service of interrogatories
(1) A party to a proceeding has the right to serve interrogatories on
another party to the proceeding.
(2) The interrogatories may be set out in a letter.
(3) However, the court may order that interrogatories not be served in the
proceeding, or not be served by or on a particular party to the
proceeding, except to the extent (if any) stated in the order.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
or leave under this rule.

(4) Also, unless the court gives leave, a party must not serve
interrogatories in the proceeding on another party—
(a) before the close of pleadings; or
(b) if the party has previously served interrogatories on the other
party; or
(c) after the matter is listed for hearing.
(5) A set of interrogatories that is to be answered by 2 or more people
must contain a note stating which of the interrogatories each of them
is required to answer.
(6) A party who is served with interrogatories must, not later than 28 days
after the day the party receives the interrogatories—
(a) file an affidavit setting out and verifying (except to the extent
that the party objects under rule 631 to answering) the party’s
answers to the interrogatories; and
(b) serve a stamped copy of the affidavit on the party serving the
interrogatories.

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 Civil proceedings generally Chapter 2
Disclosure Part 2.8
Interrogatories Division 2.8.4
Rule 631

631 Objections to answer interrogatories

(1) An objection by a party to answer an interrogatory must be on 1 or
more of the following grounds:
(a) the interrogatory is unnecessary;
(b) the interrogatory is oppressive, scandalous, vexatious or
otherwise improper;
(c) the interrogatory is unnecessarily long, wordy or uncertain;
(d) the interrogatory is irrelevant, is of a ‘fishing’ nature or inquires
into a matter of evidence;
(e) the party is privileged under the Evidence Act, part 3.10
(Privileges) from answering the interrogatory;
(f) the answer would disclose (completely or partly) the contents of
a document privileged from production by the party;
(g) it is contrary to the public interest to disclose a matter that the
answer would disclose;
(h) a ground arising under a provision of a territory law or a law of
the Commonwealth, if the ground, the law and the provision are
stated in the objection.
(2) An objection to answer on the ground that the interrogatory is
unnecessary operates as an objection that the interrogatory is not
reasonable and necessary for fairly disposing of the proceeding, or
part of the proceeding, or for saving costs.

632 Orders about interrogatories

(1) The court may—
(a) set aside interrogatories, or any interrogatory, on a ground
mentioned in rule 631 (1); or

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Chapter 2 Civil proceedings generally
Part 2.8 Disclosure
Division 2.8.4 Interrogatories
Rule 632

(b) on a ground mentioned in rule 631 (1), set aside, order to be

removed from the court file, or order to be removed from the
court file and destroyed, any answers to interrogatories that have
been filed; or
(c) order a party to answer, or to give a further answer to, an
interrogatory that the party has—
(i) failed to answer (sufficiently or at all); or
(ii) made an objection to answering that the court disallows; or
(d) make any other order about the service or answering of
interrogatories (including an order about costs) that it considers
appropriate.
(2) The court may make an order under this rule on the application of a
party or on its own initiative.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(3) Before making an order under subrule (1), the court must have regard
to the following matters:
(a) the principle that interrogatories in a proceeding should be
limited to interrogatories that are reasonable and necessary for
fairly disposing of the proceeding, or part of the proceeding, or
for saving costs;
(b) the likely relevance and significance, in relation to the
proceeding, of interrogatories, or particular interrogatories, and
the answers;
(c) the likely time, cost and inconvenience of answering
interrogatories or particular interrogatories.
(4) Subrule (3) does not limit the matters to which the court may have
regard.

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 Civil proceedings generally Chapter 2
Disclosure Part 2.8
Interrogatories Division 2.8.4
Rule 633

(5) An order under subrule (1) (c) may include, for a party who has failed
to answer an interrogatory (sufficiently or at all), an order for the oral
examination of—
(a) if the party is an entity mentioned in rule 640 (1) (Answers by
governments, corporations etc)—a person, or the holder of a
position, stated by the court; or
(b) in any other case—the party.
(6) The questions asked, and answers given, on an examination under
subrule (5)—
(a) must be taken down in writing and certified by an officer of the
court; and
(b) as certified, are taken for this division to be interrogatories and
answers to interrogatories.
(7) An affidavit must not be used for an application for an order under
this rule unless the court otherwise orders.

633 Answers to interrogatories

(1) A party who is served with interrogatories must answer an
interrogatory that the party is required to answer under this division—
(a) from the party’s own knowledge of the fact or matter raised by
the interrogatory; or
(b) if the party does not have the knowledge—from any belief the
party has about the fact or matter.
(2) This rule and rule 634 apply, with necessary changes, to a party that
is a government, corporation or unincorporated body as if—
(a) a reference to the party were a reference to the person who
answers the interrogatories on behalf of the government,
corporation or body; and

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Chapter 2 Civil proceedings generally
Part 2.8 Disclosure
Division 2.8.4 Interrogatories
Rule 634

(b) a reference to an employee or agent of the party were a reference

to an employee or agent of the government, corporation or body.
Note Rule 640 (Answers by governments, corporations etc) sets out who may
swear an affidavit verifying answers to interrogatories.

634 Answers to interrogatories—belief

(1) This rule applies if a party mentioned in rule 633 does not have
knowledge of the fact or matter raised by an interrogatory and must
answer the interrogatory from any belief the party has about the fact
or matter.
(2) The party is taken not to have a belief about the fact or matter if the
party—
(a) does not have information relating to the fact or matter on which
to form a belief; or
(b) has the information, but the party has reasonable grounds for not
believing that the information is true.
(3) The party must answer from any belief the party has about the fact or
matter irrespective of the source of the information on which the
belief is formed.
(4) However, the party is not required to answer from the party’s belief
about the fact or matter if the belief is formed on information that was
given to the party in a communication or document that is privileged
under the Evidence Act, part 3.10 (Privileges).
(5) To help the party form a belief about the fact or matter, the party must
make all reasonable inquiries to find out—
(a) whether a person who is or has been the party’s employee or
agent has knowledge of the fact or matter that was acquired by
the person as the party’s employee or agent; and
(b) if a person has the knowledge—what the knowledge is.

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 Civil proceedings generally Chapter 2
Disclosure Part 2.8
Who may verify list of documents or answers to interrogatories? Division 2.8.5
Rule 635

(6) To remove any doubt, the party must make the inquiries mentioned
in subrule (5) even if at the time the party is required to answer the
interrogatory a person having the relevant knowledge has stopped
being the party’s employee or agent.

635 Answers to interrogatories to be verified

A party’s answers to interrogatories must be verified by an affidavit.
Note See approved form 2.26 (Affidavit verifying answers to interrogatories)
AF2006-271.

636 Tendering of answers to interrogatories in evidence

(1) A party to a proceeding who has served interrogatories on another
party may tender the answers, or some of the answers, in evidence
against the other party on the hearing of the proceeding.
(2) However, the court must not allow an answer to be tendered in
evidence without another answer if it considers that, in the interests
of justice, the other answer should also be tendered in evidence.
(3) For subrule (2), the court may inspect all of the answers to the
interrogatories.
(4) Subrule (1) does not make an answer admissible in evidence if, apart
from the subrule, it is not admissible in evidence.

Division 2.8.5 Who may verify list of documents or

answers to interrogatories?
640 Answers by governments, corporations etc
(1) This rule applies if any of the following is a party who has to verify a
list of documents, or answer interrogatories:
(a) a government;
(b) a corporation;
(c) the holder of a position (including, for example, the sheriff);

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Chapter 2 Civil proceedings generally
Part 2.8 Disclosure
Division 2.8.5 Who may verify list of documents or answers to interrogatories?
Rule 641

(d) an unincorporated body;

(e) a person represented by a litigation guardian.
(2) The affidavit verifying the party’s list of documents, or answers to the
interrogatories, must be sworn as follows:
(a) for a government—by a Minister, or an authorised officer,
employee or agent, of the government;
(b) for a corporation—by a director, the secretary, or an authorised
officer or employee, of the corporation;
(c) for the holder of a position—by the holder of the position or an
authorised officer, employee or agent of the position holder;
(d) for an unincorporated body—by the members, or 1 or more
authorised members, or an authorised employee or agent, of the
body;
(e) for a person represented by a litigation guardian—by the
litigation guardian.
(3) However, the court may make an order for a party’s list of documents
or answers to interrogatories to be verified by the affidavit of a person
not mentioned in subrule (2).
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

641 Party cannot swear affidavit personally

If the court is satisfied that a party cannot, for adequate reason, swear
an affidavit verifying the party’s list of documents or answers to
interrogatories, it may authorise a suitable person to swear the
affidavit.
Note Pt 6.2 (Applications in proceedings) applies to an application for an
authorisation under this rule.

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 Civil proceedings generally Chapter 2
Disclosure Part 2.8
Preliminary discovery Division 2.8.6
Rule 650

Division 2.8.6 Preliminary discovery

650 Discovery to identify potential defendant
(1) This rule applies if—
(a) a person (the applicant) has, or is likely to have, a cause of
action against someone (the potential defendant); and
(b) either—
(i) the applicant wants to start a proceeding in the court
against the potential defendant for the cause of action; or
(ii) the following provisions apply:
(A) the applicant is a party to a proceeding in the court;
(B) the potential defendant is not a party to the
proceeding;
(C) the applicant wants to make a claim for relief in the
proceeding against the potential defendant for the
cause of action;
(D) the claim for relief could properly have been made in
the proceeding against the potential defendant if the
potential defendant were a party; and
(c) the applicant, after making reasonable inquiries, cannot
ascertain the identity or whereabouts of the potential defendant
sufficiently to start the proceeding, or make the claim for relief,
against the potential defendant; and
(d) someone else (the other person) may have information, or may
have or have had possession of a document or thing, that tends
to assist in ascertaining the identity or whereabouts of the
potential defendant.
Note The road transport authority cannot be required to comply with a
preliminary discovery order in certain circumstances (see Road
Transport (General) Act 1999, s 236).

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Chapter 2 Civil proceedings generally
Part 2.8 Disclosure
Division 2.8.6 Preliminary discovery
Rule 650

(2) If subrule (1) (b) (i) applies, the applicant may apply to the court by
originating application for an order under this rule (and, if relevant,
an order under rule 715 (Inspection, detention, custody and
preservation of property—orders etc)) against the other person.
(3) If subrule (1) (b) (ii) applies, the applicant may apply to the court for
an order under this rule (and, if relevant, an order under rule 715)
against the other person.
Note Pt 6.2 (Applications in proceedings) applies to the application.

(4) The application must be supported by an affidavit stating the facts on

which the applicant relies, and stating the kinds of information,
documents or things in relation to which the application is made.
Note 1 For an application mentioned in r (2), div 2.2.3 (Originating applications)
contains provisions about the content of originating applications, the
filing and service of originating applications, etc.
Note 2 For an application mentioned in r (3), r 6008 (Application in
proceeding—filing and service) deals with service of the application and
supporting affidavit.

(5) The court may order the other person—

(a) to attend before the court to be examined in relation to the
identity or whereabouts of the potential defendant; or
(b) to produce to the court any document or thing that is, or has
been, in the other person’s possession relating to the identity or
whereabouts of the potential defendant; or
(c) to make and serve on the applicant a list of the documents or
things that are, or have been, in the other person’s possession
relating to the identity or whereabouts of the potential
defendant; or
(d) to produce for inspection by the applicant any document or thing
that is, or has been, in the other person’s possession relating to
the identity or whereabouts of the potential defendant.

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 Civil proceedings generally Chapter 2
Disclosure Part 2.8
Preliminary discovery Division 2.8.6
Rule 651

(6) If the court makes an order under subrule (5) (a) (an order for
attendance), the court may—
(a) order that the other person must produce to the court on the
examination any document or thing that is in the other person’s
possession relating to the identity or whereabouts of the
potential defendant; and
(b) direct that the examination by the court be held before the
registrar.
(7) An order under this rule in relation to any information, document or
thing held by a corporation may be addressed to any appropriate
officer or former officer of the corporation.
(8) Rule 6606 (1) (Compliance with subpoena) and rule 6611 (Costs and
expenses of compliance with subpoena) apply, with necessary
changes, in relation to an order for attendance under this rule as if the
order were a subpoena.
(9) In this rule:
identity or whereabouts, of the potential defendant, includes—
(a) whether the potential defendant is an individual or a corporation;
and
(b) for an individual—the potential defendant’s name, home
address or other whereabouts, occupation and sex; and
(c) for a corporation—the potential defendant’s registered office,
business address or other whereabouts.

651 Discovery to identify right to claim relief

(1) This rule applies if—
(a) a person (the applicant) has, or may have, a cause of action
against someone (the potential defendant); and

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Chapter 2 Civil proceedings generally
Part 2.8 Disclosure
Division 2.8.6 Preliminary discovery
Rule 651

(b) either—
(i) the applicant, after making reasonable inquiries, cannot
obtain sufficient information to decide whether to start a
proceeding in the court against the potential defendant for
the cause of action; or
(ii) the following provisions apply:
(A) the applicant is a party to a proceeding in the court;
(B) the potential defendant is not a party to the
proceeding;
(C) the applicant, after making reasonable inquiries,
cannot obtain sufficient information to decide
whether to make a claim for relief in the proceeding
against the potential defendant for the cause of action;
(D) the claim for relief could properly have been made in
the proceeding against the potential defendant if the
potential defendant were a party; and
(c) the applicant has reasonable grounds for believing that the
potential defendant has or has had possession of a document or
thing that can assist in deciding whether to start the proceeding,
or make the claim for relief, against the potential defendant; and
(d) inspection of the document or thing by the applicant would help
in making the decision.
(2) If subrule (1) (b) (i) applies, the applicant may apply to the court by
originating application for an order under this rule (and, if relevant,
an order under rule 715 (Inspection, detention, custody and
preservation of property—orders etc)) against the potential
defendant.

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 Civil proceedings generally Chapter 2
Disclosure Part 2.8
Preliminary discovery Division 2.8.6
Rule 652

(3) If subrule (1) (b) (ii) applies, the applicant may apply to the court for
an order under this rule (and, if relevant, an order under rule 715)
against the potential defendant.
Note Pt 6.2 (Applications in proceedings) applies to the application.

(4) The application must be supported by an affidavit stating the facts on

which the applicant relies, and stating the kinds of documents or
things in relation to which the application is made.
Note 1 For an application mentioned in r (2), div 2.2.3 (Originating applications)
contains provisions about the content of originating applications, the
filing and service of originating applications, etc.
Note 2 For an application mentioned in r (3), r 6008 (Application in
proceeding—filing and service) deals with service of the application and
supporting affidavit.

(5) The court may order the potential defendant to produce the document
or thing to the applicant.
(6) An order under this rule in relation to any document or thing held by
a corporation may be addressed to any appropriate officer or former
officer of the corporation.

652 Order under div 2.8.6—privilege

An order under this division does not require the person against whom
the order is made to produce any document that, on the ground of
privilege, the person could not be required to produce if the applicant
for the order—
(a) had started a proceeding against the person; or
(b) had made the person a party to the proceeding.

653 Order under div 2.8.6—costs

(1) On application for an order under this division, the court may make
an order in relation to the costs of the applicant, the person against
whom the order is sought or made and any other party to the
proceeding.

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Chapter 2 Civil proceedings generally
Part 2.8 Disclosure
Division 2.8.7 Non-party production
Rule 659

(2) The costs for which an order may be made include—

(a) payment of conduct money; and
(b) payments made for any expense or loss in relation to the
proceeding; and
(c) the costs of producing any documents for inspection under this
division.

Division 2.8.7 Non-party production

659 Application—div 2.8.7
(1) This division does not apply to a document held by a court.
(2) In this rule:
court includes the ACAT.

660 Notice for non-party production—issue

(1) At the request of a party to a proceeding, the registrar must, unless
the court otherwise orders, issue a notice (a notice for non-party
production) requiring a person who is not a party to the proceeding
to produce for inspection a document—
(a) relating to a matter in issue in the proceeding; and
(b) in the person’s possession; and
(c) that the person could be required to produce at the trial of the
proceeding.
Note 1 See approved form 2.27 (Notice for non-party production) AF2011-51.
Note 2 See div 6.3.3 (Rejecting filed documents) for the registrar’s powers to
reject documents.

(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.

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 Civil proceedings generally Chapter 2
Disclosure Part 2.8
Non-party production Division 2.8.7
Rule 661

(3) For this rule, a matter is in issue until it is—

(a) admitted or taken to be admitted; or
(b) withdrawn, struck out or otherwise disposed of.

661 Notice for non-party production—service

(1) A notice for non-party production must be served personally.
(2) A notice for non-party production is taken to be served personally on
a medical expert if, at a place where the expert’s practice is carried
on—
(a) it is given to a person apparently engaged (whether as employee
or otherwise) in the practice and apparently at least 16 years old;
or
(b) if a person mentioned in paragraph (a) does not accept the
notice—the notice is put down in the person’s presence and the
person is told in general terms what it is.
(3) A copy of the notice must be served on each other active party to the
proceeding before the notice is served on the respondent.

662 Notice for non-party production—inspection by other

parties
(1) The respondent to a notice for non-party production issued in a
proceeding must produce any document stated in the notice by
delivering the document to the party to the proceeding stated in the
notice (the receiving party) within—
(a) 14 days after the notice is served on the respondent; or
(b) if a longer time is stated in the notice—the longer time.

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Chapter 2 Civil proceedings generally
Part 2.8 Disclosure
Division 2.8.7 Non-party production
Rule 663

(2) The receiving party must within 14 days after the document is
delivered to the receiving party—
(a) if there is another active party to the proceeding other than the
applicant for the notice—deliver the document to the other
party; or
(b) in any other case—deliver the document to the applicant for the
notice.
(3) If a document is delivered to another active party under
subrule (2) (a), the other party must within 14 days after the document
is delivered to the party—
(a) if there is another active party to the proceeding, other than the
applicant for the notice, that the document has not been
delivered to—deliver the document to the other party; or
(b) in any other case—deliver the document to the applicant for the
notice.
(4) For the purpose of deciding whether to make a claim mentioned in
rule 664 (1) (a) (which deals with claims for privilege), any party to
the proceeding on whom a copy of the notice for non-party production
is served is entitled to inspect a document stated in the notice other
than a document in relation to which any other party makes such a
claim.

663 Notice for non-party production—application to set aside

(1) The respondent to a notice for non-party production in a proceeding
or any other party to the proceeding may, not later than 14 days after
the day the notice is served on the respondent, apply to the court to
have the notice amended or set aside.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(2) On an application under this rule, the court may make the orders it
considers appropriate.

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 Civil proceedings generally Chapter 2
Disclosure Part 2.8
Non-party production Division 2.8.7
Rule 664

664 Notice for non-party production—privilege or objection

(1) This rule applies if—
(a) the respondent to a notice for non-party production in a
proceeding or any other party to the proceeding—
(i) claims that a document mentioned in the notice is
privileged from production; or
(ii) otherwise objects to its production; or
(b) someone else who would be affected by the notice and who has
not been served with the notice is given leave to object to the
production of a document mentioned in the notice.
Note Pt 6.2 (Applications in proceedings) applies to an application for leave or
an order under this rule.

(2) The person objecting must give notice of the objection to the
applicant for the notice and, if required by the applicant, file an
affidavit, and serve a stamped copy on the applicant, stating—
(a) the document that the person objects to being produced; and
(b) the reasons the person claims privilege or otherwise objects to
the document being produced.
(3) The reasons for objection may include, but are not limited to, the
following:
(a) if the person objecting 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 document;
(c) the lack of particularity with which the document is described;
(d) the confidential nature of the document or its contents;
(e) the effect disclosure would have on anyone;

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Chapter 2 Civil proceedings generally
Part 2.8 Disclosure
Division 2.8.7 Non-party production
Rule 665

(f) if the person objecting was not served with the notice—the fact
that the person should have been served.
(4) The person objecting need not produce the document and the
applicant for the notice, the respondent or another party to the
proceeding may apply to the court for orders in relation to the claim
or objection.
(5) On application under this rule, the court may make the orders it
considers appropriate.

665 Notice for non-party production—failure to produce

documents
(1) This rule applies if the respondent to a notice for non-party production
fails to produce a document stated in the notice in accordance with
the notice.
(2) The applicant for the notice may apply to the court for orders in
relation to the failure.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(3) On application under this rule, the court may make the orders it
considers appropriate.

666 Notice for non-party production—copying produced

documents
(1) The applicant for a notice for non-party production, or the applicant’s
solicitor, may copy at the applicant’s expense any document
produced under the notice unless the respondent to the notice objects.
(2) If the respondent objects the applicant may apply to the court for
orders in relation to the objection.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

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 Civil proceedings generally Chapter 2
Disclosure Part 2.8
Discovery—other provisions Division 2.8.8
Rule 667

(3) On an application under this rule, the court may make the orders it
considers appropriate.

667 Notice for non-party production—costs

(1) The applicant for a notice for non-party production must pay any
expenses reasonably incurred by the respondent to the notice in
complying with the notice.
(2) If the respondent has not been paid by the applicant for the notice an
amount that the respondent considers adequate to cover the expenses
reasonably incurred, or expected to be reasonably incurred, in
complying with the notice, the respondent may apply to the court to
decide the amount that the applicant is to pay the respondent.
Note Pt 6.2 (Applications in proceedings) applies to an application under this
rule.

(3) Before making an application to the court under subrule (2), the
respondent must give the applicant for the notice not less than 7 days
notice of the intention to make the application.
(4) A decision of the court on an application under subrule (2) is taken to
be a judgment of the court for the amount decided against the
applicant for the notice and may be enforced accordingly.
(5) Subrule (1) does not affect the discretion of the court to order that the
costs of and incidental to an application for a notice for non-party
production (including any amount paid to the respondent under that
subrule) are to be paid by any other party to the proceeding.

Division 2.8.8 Discovery—other provisions

670 Contravention of pt 2.8 order—contempt of court
(1) If a person, without reasonable excuse, contravenes an order of the
court made under this part, the person may be dealt with for contempt
of court.

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Chapter 2 Civil proceedings generally
Part 2.8 Disclosure
Division 2.8.8 Discovery—other provisions
Rule 671

(2) This rule does not limit any other power of the court in relation to the
contravention.
Note 1 Failure to answer a question or give information in a legal proceeding
may be an offence (see Criminal Code, s 722).
Note 2 See also r 671 (Contravention of pt 2.8 order—other action), r 2444
(Enforcement—failure of individual to comply with subpoena etc),
r 2445 (Enforcement—failure of corporation to comply with subpoena
etc).

671 Contravention of pt 2.8 order—other action

(1) If a party, without reasonable excuse, contravenes an order of the
court made under this part, the court may—
(a) if the party is a plaintiff or other claimant—order that all, or a
stated part, of the party’s proceeding be struck out, dismissed or
stayed; or
(b) if the party is a defendant or respondent—order that the party
not be allowed to defend all, or a stated part, of the proceeding
against the party.
(2) This rule does not limit any other power of the court in relation to the
contravention.

672 Solicitor to notify party of certain matters about pt 2.8

(1) This rule applies if a solicitor who acts for a party to a proceeding
receives in relation to the proceeding—
(a) a notice under rule 607 (1) (Notice to disclose discoverable
documents) or 620 (1) (Production of documents for
inspection); or
(b) interrogatories under rule 630 (1) (Service of interrogatories); or
(c) an order of the court made under this part that imposes an
obligation (however expressed) on the party.

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 Civil proceedings generally Chapter 2
Disclosure Part 2.8
Discovery—other provisions Division 2.8.8
Rule 673

(2) The solicitor must, without unnecessary delay, take all reasonable
steps to tell the party fully about the party’s obligation in relation to
the notice, interrogatories or order.
(3) If the solicitor, without reasonable excuse, contravenes subrule (2),
the solicitor may be dealt with for contempt of court.
(4) Subrule (3) does not limit any other power of the court in relation to
the failure.

673 Improper use of disclosed document

(1) This rule applies to someone if the person—
(a) receives a document produced to the person under this part or
division 2.12.3 (Expert reports) in relation to a proceeding; or
(b) receives a document, directly or indirectly, from someone else
and the document has, to the person’s knowledge, been
produced under this part or division 2.12.3 to the other person.
(2) The person must not, without leave of the court or other lawful
authority, make use of the document otherwise than for the proper
purposes of the proceeding.
Note Pt 6.2 (Applications in proceedings) applies to an application for leave.

(3) If the person, without reasonable excuse, contravenes subrule (2), the
person may be dealt with for contempt of court.
(4) The fact that a document has been filed, received in evidence or read
out in court does not affect the application of this rule to the
document, but the court may take that fact into account in deciding
what action (if any) to take about a contravention of subrule (2) in
relation to the document.
(5) Subrule (3) does not limit any other power of the court in relation to
the contravention.

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Chapter 2 Civil proceedings generally
Part 2.8 Disclosure
Division 2.8.8 Discovery—other provisions
Rule 674

674 Failure to disclose document

(1) This rule applies if a party fails, without reasonable excuse, to
disclose to another party a document that the party is required to
disclose under this part, including under an order of the court made
under this part.
(2) The party must not tender the document in evidence against the other
party on the hearing of the proceeding, or tender evidence of its
contents, without the leave of the court.
Note Pt 6.2 (Applications in proceedings) applies to an application for leave.

(3) In deciding whether to give leave under subrule (2), the court must
act in accordance with the Evidence Act, part 3.11 (Discretionary and
mandatory exclusions).
(4) The party must also pay any costs incurred by another party because
of the failure.
(5) This rule does not limit any other power of the court in relation to the
failure.

675 Discovery by electronic means—practice notes

(1) A practice note may make provision in relation to the discovery of
documents by electronic means.
Note Practice note is defined in the dictionary to mean a practice note under
r 6907.

(2) A practice note must be complied with despite anything in these rules.

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 Civil proceedings generally Chapter 2
Preservation of rights and property Part 2.9
Interpretation—pt 2.9 Division 2.9.1
Rule 700

Part 2.9 Preservation of rights and

property
Division 2.9.1 Interpretation—pt 2.9
700 Meaning of usual undertaking as to damages—pt 2.9
In this part:
usual undertaking as to damages, in relation to an interlocutory
order or an interlocutory undertaking given to the court, means an
undertaking to submit to any order the court considers just for paying
compensation, to be assessed by the court or as directed by the court,
to someone (whether or not a party to the proceeding) who is
adversely affected by—
(a) the operation of the interlocutory order or undertaking; or
(b) any continuation of the order or undertaking (whether or not
varied).

Division 2.9.2 Interim preservation, distribution and

payment
705 Application—div 2.9.2
(1) This division applies only in relation to the Supreme Court.
(2) To remove any doubt, division 2.4.9 (People with a legal disability)
applies in relation to this division as if an application under this
division were a proceeding.

706 Urgent orders before start of proceeding

(1) This rule applies—
(a) in urgent circumstances; and

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Chapter 2 Civil proceedings generally
Part 2.9 Preservation of rights and property
Division 2.9.2 Interim preservation, distribution and payment
Rule 706

(b) if the person applying for an order mentioned in subrule (2)

intends to start a proceeding.
(2) Before the proceeding starts, the court may do any of the following
as if the proceeding had started:
(a) make an order that the court might make in a proceeding on an
application for a habeas corpus order;
(b) make a division 2.9.4 order;
Note For the giving of the usual undertaking as to damages, see r 732
(Division 2.9.4 order—damages and undertaking as to damages).

(c) make an order extending the operation of a caveat, including, for

example, under the Land Titles Act 1925;
(d) make an order appointing, or directing the appointment of, a
receiver;
(e) make an order under rule 715 (Inspection, detention, custody
and preservation of property—orders etc) or rule 716 (Disposal
of property other than land).
Note The court may impose a condition about giving the usual
undertaking as to damages (see r 715 (5) and r 716 (2)).

(3) Subrule (2) does not limit the orders the court may make before a
proceeding starts.
(4) An application for an order mentioned in subrule (2) must be made
by originating application.
Note Div 2.2.3 (Originating applications) contains provisions about the content
of originating applications, the filing and service of originating
applications, etc.

(5) An application for an order mentioned in subrule (2) should be served,

but if the court is satisfied there is adequate reason for doing so, it
may make the order without the application being served on anyone.

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 Civil proceedings generally Chapter 2
Preservation of rights and property Part 2.9
Interim preservation, distribution and payment Division 2.9.2
Rule 707

(6) The person must give an undertaking to the court that the person will
file originating process starting the proceeding not later than—
(a) the end of the time ordered by the court; or
(b) if the court does not make an order mentioned in
paragraph (a)—2 days after the day the order mentioned in
subrule (2) is made.
(7) In this rule:
habeas corpus order—see rule 3500 (Definitions—pt 3.9).

707 Interim distribution

(1) This rule applies—
(a) to a proceeding about property; and
(b) if the court considers that the property is more than enough to
answer the claims on the property for which provision ought to
be made in the proceeding.
(2) The court may make an order allowing any part of the property to be
conveyed, transferred or delivered to anyone having an interest in the
property.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

708 Interim income

(1) This rule applies—
(a) to a proceeding about property; and
(b) if the court considers that all or part of the income of the property
is not required to answer the claims on the property or its income
for which provision ought to be made in the proceeding.

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Chapter 2 Civil proceedings generally
Part 2.9 Preservation of rights and property
Division 2.9.3 Inspection, detention, custody and preservation of property
Rule 709

(2) The court may make an order allowing all or part of the income to be
paid to everyone or anyone having an interest in the income for the
period set by the court.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

709 Payment before finding out everyone interested

(1) This rule applies if 2 or more people are entitled to share in a fund.
(2) The court may make an order allowing immediate payment to any of
those people of the person’s share without reserving any part of the
share to meet the later costs of finding out any other of those people.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

Division 2.9.3 Inspection, detention, custody and

preservation of property
715 Inspection, detention, custody and preservation of
property—orders etc
(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 an issue may arise in a proceeding; or
(b) inspection of the property is necessary for deciding an issue in a
proceeding.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(2) Subrule (1) applies whether or not the property is in the ownership,
possession, custody or power of a party.
(3) The court may make an order mentioned in subrule (1) at any stage
of a proceeding.

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 Civil proceedings generally Chapter 2
Preservation of rights and property Part 2.9
Inspection, detention, custody and preservation of property Division 2.9.3
Rule 715

(4) Also, if the Supreme Court makes an order under division 2.8.6
(Preliminary discovery) in relation to a proceeding, the court may
make an order mentioned in subrule (1) before the proceeding starts
as if the proceeding had started.
(5) Without limiting subrule (1), the order may authorise a person to do
any of the following:
(a) enter a place or do something else to obtain access to the
property;
(b) take samples of the property;
(c) make observations of the property;
(d) make a record of the property, including, for example, take
photographs of the property;
(e) conduct an experiment on or with the property;
(f) observe a process;
(g) observe or read images or information contained in the property,
including, for example, by playing or screening a tape, film or
disk;
(h) photograph or otherwise copy the property or information
contained in the property;
(i) in a proceeding about a party’s right to a fund—pay the fund
into court or otherwise secure the fund.
(6) Without limiting rule 6901 (Orders may be made on conditions), an
order under this rule may be made on any of the following conditions:
(a) conditions about the payment of the costs of a person who is not
a party and who must comply with the order;
(b) conditions about giving security for the costs of a person or party
who must comply with the order;
(c) conditions about giving the usual undertaking as to damages.

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Chapter 2 Civil proceedings generally
Part 2.9 Preservation of rights and property
Division 2.9.3 Inspection, detention, custody and preservation of property
Rule 716

(7) The court must not make an order under this rule unless it is satisfied
that sufficient relief is not available under the Evidence Act,
section 169 (Failure to comply with requests).
(8) A party applying for an order under this rule must, as far as
practicable, serve an application in accordance with part 6.2
(Applications in proceedings) on everyone who would be affected by
the order if made.

716 Disposal of property other than land

(1) This rule applies—
(a) to a proceeding about property (other than land) or in which an
issue may arise about property (other than land); and
(b) if it appears to the court that—
(i) the property is perishable or is likely to deteriorate or
otherwise decrease in value; or
(ii) the property should be sold or otherwise disposed of for
another reason.
(2) At any stage of the proceeding, the court may order the sale or other
disposal of all or part of the property.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(3) Without limiting rule 6901 (Orders may be made on conditions), an

order may be made on conditions about giving the usual undertaking
as to damages.

717 Order for inspection, detention, custody or preservation

affecting non-party
The court may make an order under rule 715 (Inspection, detention,
custody and preservation of property—orders etc) or rule 716
(Disposal of property other than land) binding on, or otherwise
affecting, someone who is not a party to the proceeding.

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 Civil proceedings generally Chapter 2
Preservation of rights and property Part 2.9
Inspection, detention, custody and preservation of property Division 2.9.3
Rule 718

718 Application for order for inspection, detention, custody or

preservation
(1) An application in a proceeding for an order for the inspection,
detention, custody or preservation of property may be made by a party
to the proceeding.
Note An application may be made before a proceeding starts (see r 706 (Urgent
orders before start of proceeding)).

(2) The applicant must make all reasonable inquiries to find out who has,
or claims to have, an interest in the property.
(3) Unless the court otherwise orders, an order must not be made under
rule 715 (Inspection, detention, custody and preservation of
property—orders etc) or rule 716 (Disposal of property other than
land) unless each person who has an interest in the property is served
with the application.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
otherwise ordering.

719 Division 2.9.3—other jurisdiction of court not affected

This division does not affect the jurisdiction of the court (whether
inherent, implied or statutory) to make orders for the inspection,
detention, custody or preservation of property that is exercisable apart
from this division (whether or not under these rules).

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Chapter 2 Civil proceedings generally
Part 2.9 Preservation of rights and property
Division 2.9.4 Injunctions and similar orders
Rule 725

Division 2.9.4 Injunctions and similar orders

Note to div 2.9.4
The Magistrates Court may make an order under this division only in relation to a
proceeding that the court has jurisdiction to hear and decide. For example, the
court may not make an order under this division before a proceeding is started
(see Magistrates Court Act 1930, s 257 (Personal actions at law—amount or
value) and s 258 (Power of court to grant relief)).

Subdivision 2.9.4.1 Injunctions and similar orders—

generally

725 Meaning of division 2.9.4 order

In these rules:
division 2.9.4 order means an injunction, freezing order or search
order.

726 Definitions—div 2.9.4

In this division:
ancillary order—see rule 742.
freezing order—see rule 741.
search order—see rule 751.

727 Division 2.9.4—other jurisdiction of court not affected

This division does not affect the jurisdiction of the court (whether
inherent, implied or statutory) to make a division 2.9.4 order or
ancillary order that is exercisable apart from this division (whether or
not under these rules).

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 Civil proceedings generally Chapter 2
Preservation of rights and property Part 2.9
Injunctions and similar orders Division 2.9.4
Rule 728

728 Division 2.9.4 order—procedure

(1) If the division 2.9.4 order is the principal relief claimed, the applicant
must apply to the court by originating application and must comply
with part 2.2 (Starting civil proceedings), except as far as this division
otherwise provides or the court otherwise orders.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule otherwise ordering if the proceeding has been started.

(2) However, if the division 2.9.4 order is not the principal relief claimed,
or the order is sought in a proceeding that has been started or relates
to a proceeding that has ended, the applicant must comply with part
6.2 (Applications in proceedings), except as far as this division
otherwise provides or the court otherwise orders.
(3) For the Supreme Court, this rule applies whether the application is
made—
(a) before a proceeding is started; or
(b) in a pending proceeding; or
(c) after a proceeding has ended (including after judgment).

729 Division 2.9.4 order without notice etc

(1) An application for a division 2.9.4 order or ancillary order should be
served, but if the court is satisfied there is adequate reason for doing
so, it may make the order without the application being served on
anyone.
(2) Without limiting the court’s discretion in the exercise of its equitable
jurisdiction, on an application for a division 2.9.4 order, the court
may, if it considers it appropriate—
(a) make the order for a limited period stated in the order; or
(b) make the order until the trial of the proceeding; or
(c) make an order for a limited time restraining a person from
leaving Australia; or

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Chapter 2 Civil proceedings generally
Part 2.9 Preservation of rights and property
Division 2.9.4 Injunctions and similar orders
Rule 730

(d) make another order, including, for example, an ancillary order.

Note 1 Rule 6901 (Orders may be made on conditions) provides that the court
may make an order under these rules on any conditions it considers
appropriate.
Note 2 Ancillary order is defined in r 742.

(3) Also, an application for an ancillary order may be made separately

from the application for a freezing order.
Note Pt 6.2 (Applications in proceedings) applies to an application for an
ancillary order made separately from the application for a freezing order.

730 Division 2.9.4 order without trial

(1) A plaintiff claiming relief by way of a division 2.9.4 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 respond or
defence; or
(b) the end of the time set by rule 102 (Notice of intention to respond
or defence—filing and service) for filing a notice of intention to
respond or defence.
(3) On the hearing of an application under subrule (1), the court may do
1 or more of the following:
(a) give judgment in relation to the division 2.9.4 order and
declaration (if any) and, if other relief is claimed, give the
directions it considers appropriate about how to dispose of the
rest of the proceeding;
(b) make a division 2.9.4 order until the hearing or until a stated
day;
(c) order the parties to file and serve pleadings;
(d) direct a trial of the proceeding.

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 Civil proceedings generally Chapter 2
Preservation of rights and property Part 2.9
Injunctions and similar orders Division 2.9.4
Rule 731

731 Division 2.9.4 order—expedited trial

On an application for a division 2.9.4 order, the court may order an
expedited trial under rule 1311 (Expedited trial).

732 Division 2.9.4 order—damages and undertaking as to

damages
(1) Unless there is a good reason, a division 2.9.4 order or ancillary order
made until the trial or hearing or until a stated day must not be made
without the usual undertaking as to damages having been given.
(2) The usual undertaking as to damages for a division 2.9.4 order or
ancillary 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 for assessment of damages.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
or direction under this rule

(4) If the court finds damages are sustained because of a division 2.9.4
order or ancillary order, it may, at trial or on application by a party,
assess damages or give the directions it considers necessary for the
assessment of damages.

733 Division 2.9.4 order—other undertakings and security to

perform undertaking
(1) The court may require an undertaking from a person approved by the
court other than the person applying for the division 2.9.4 order or
ancillary order.
(2) The court may require a person who gives an undertaking as to
damages under rule 732 (Division 2.9.4 order—damages and
undertaking as to damages) to make a payment into court or to give
other security, including to the registrar’s satisfaction, for the
performance of the undertaking.

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Chapter 2 Civil proceedings generally
Part 2.9 Preservation of rights and property
Division 2.9.4 Injunctions and similar orders
Rule 740

(3) In deciding whether to make a requirement under this rule, the court
may have regard to any of the matters to which it could have regard
in deciding whether to make an order for security for costs and
whether it is otherwise reasonable in all the circumstances of the
matter to impose the requirement.
Note See r 1902 (Security for costs—discretionary factors).

Subdivision 2.9.4.2 Freezing orders

Note An application for a freezing order or an ancillary order may be served
on a person who is outside of Australia where such service is authorised
by or under div 6.8.9 (Service out of Australia). See, in particular, r 6502
(d).

740 Definitions—sdiv 2.9.4.2

In this subdivision:
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 ancillary
order.
respondent means a person against whom a freezing order or
ancillary order is sought or made.

741 Freezing orders—general

(1) The Supreme Court may make an order (a freezing order) for the
purpose of preventing the frustration or inhibition of the court’s
process by ensuring that an order or prospective order of the court is
not made valueless or diminished in value.
(2) The Magistrates Court may make an order (also called a freezing
order) in a proceeding for the purpose of preventing the frustration or
inhibition of the court’s process by ensuring that an order or
prospective order of the court in relation to the proceeding is not made
valueless or diminished in value.

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 Civil proceedings generally Chapter 2
Preservation of rights and property Part 2.9
Injunctions and similar orders Division 2.9.4
Rule 741

(3) 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.
(4) For the Supreme Court, a freezing order or ancillary order may be
made whether or not the respondent is a party to an existing
proceeding.
(5) For the Magistrates Court, a freezing order or ancillary order may be
made in a proceeding whether or not the respondent is a party to the
proceeding.
(6) The affidavits supporting an application for a freezing order or
ancillary order must include the following information:
(a) information about—
(i) the order mentioned in rule 743 (1) (a) (Freezing orders—
order against enforcement debtor or prospective
enforcement debtor or third party); or
(ii) if no order mentioned in rule 743 (1) (a) has been
obtained—the following information about the cause of
action mentioned in rule 743 (1) (b) or (c):
(A) the basis of the claim for principal relief;
(B) the amount of the claim;
(C) if the application is made without being served on the
respondent—any possible defence or other response
to the claim;
(b) the nature and value of the respondent’s assets, as far as they are
known to the applicant, in and outside Australia;
(c) why the applicant believes—
(i) the respondent’s assets may be removed from Australia; or
(ii) the dealing with the assets should be restrained by order;

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Chapter 2 Civil proceedings generally
Part 2.9 Preservation of rights and property
Division 2.9.4 Injunctions and similar orders
Rule 742

(d) why the applicant believes the order mentioned in rule 743 (1)
(a) may go unsatisfied if the removal or dealing mentioned in
paragraph (c) happens;
(e) the identity of anyone, other than the respondent, who the
applicant knows may be affected by the order, and how the
person may be affected.
(7) The court may amend or set aside a freezing order or ancillary order.

742 Ancillary orders

(1) The court may make an order (an ancillary order) ancillary to a
freezing order or prospective freezing order as the court considers
appropriate.
(2) Without limiting subrule (1), an ancillary order may be made for
either or both of the following purposes:
(a) finding out information about assets relevant to the freezing
order or prospective freezing order;
(b) deciding whether the freezing order should be made.
(3) On an application mentioned in rule 729 (3) (Division 2.9.4 order
without notice etc), the court may make an ancillary order if it
considers it appropriate.

743 Freezing orders—order against enforcement debtor or

prospective enforcement debtor or third party
(1) This rule applies if—
(a) an order has been given in favour of an applicant by—
(i) the court; or
(ii) for an order to which subrule (2) applies—another court;
or
Note Order is defined in the dictionary to include judgment (see also def
made).

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 Civil proceedings generally Chapter 2
Preservation of rights and property Part 2.9
Injunctions and similar orders Division 2.9.4
Rule 743

(b) for the Supreme Court—an applicant has a good arguable case
on an accrued or prospective cause of action that is justiciable
in—
(i) the court; or
(ii) for a cause of action to which subrule (3) applies—another
court; or
(c) for the Magistrates Court—an applicant has started a proceeding
in the court and the applicant has a good arguable case on an
accrued or prospective cause of action that is justiciable in—
(i) the court; or
(ii) for a cause of action to which subrule (3) applies—another
court.
(2) This subrule applies to an order if there is a sufficient prospect that
the order will be registered in or enforced by the court.
(3) This subrule applies to a cause of action if there is a sufficient
prospect that—
(a) the other court will make an order in favour of the applicant; and
(b) the order will be registered in or enforced by the court.
(4) The court may make a freezing order or ancillary order (or both)
against an enforcement debtor or prospective enforcement debtor if
satisfied, having regard to all the circumstances, that there is a danger
that an order or prospective order will be completely or partly
unsatisfied because any of the following might happen:
(a) the enforcement debtor, prospective enforcement debtor or
someone else absconds;
(b) the assets of the enforcement debtor, prospective enforcement
debtor or someone else are—
(i) removed from Australia or from somewhere in or outside
Australia; or

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Chapter 2 Civil proceedings generally
Part 2.9 Preservation of rights and property
Division 2.9.4 Injunctions and similar orders
Rule 745

(ii) disposed of, dealt with or diminished in value.

(5) The court may make a freezing order or ancillary order (or both)
against someone other than an enforcement debtor or prospective
enforcement debtor (a third party) if satisfied, having regard to all the
circumstances, that—
(a) there is a danger that an order or prospective order will be
completely 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 enforcement debtor or
prospective enforcement 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 enforcement debtor or prospective
enforcement debtor; or
(b) a process in the court, is or may ultimately be, available to the
applicant as a result of an order or prospective order, and, under
the process, the third party may be obliged to disgorge assets or
contribute toward satisfying the order or prospective order.
(6) This rule does not affect the court’s power to make a freezing order
or ancillary order if the court considers it is in the interests of justice
to do so.

745 Freezing orders—costs

(1) The court may make any order about costs that it considers
appropriate in relation to a freezing order or ancillary order.
(2) Without limiting subrule (1), an order about costs includes an order
about the costs of anyone affected by a freezing order or ancillary
order.

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 Civil proceedings generally Chapter 2
Preservation of rights and property Part 2.9
Injunctions and similar orders Division 2.9.4
Rule 750

Subdivision 2.9.4.3 Search orders

750 Definitions—sdiv 2.9.4.3

In this subdivision:
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.

751 Search orders—general

(1) The Supreme 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 the
respondent to allow people to enter premises for the purpose of
securing the preservation of evidence that is or may be relevant to an
issue in the proceeding or anticipated proceeding.
(2) The Magistrates Court may make an order (also called a search
order) in any proceeding in the court for the purpose of securing or
preserving evidence and requiring the respondent to allow people to
enter premises for the purpose of securing the preservation of
evidence that is or may be relevant to an issue in the proceeding.
(3) The affidavits supporting an application for a search order must
include the following information:
(a) a description of the things, or the categories of things, in relation
to which the order is sought;
(b) the address of the premises in relation to which the order is
sought and whether they are private or business premises;

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Chapter 2 Civil proceedings generally
Part 2.9 Preservation of rights and property
Division 2.9.4 Injunctions and similar orders
Rule 751

(c) why the order is sought, including why the applicant believes
that the things to be searched for will probably be destroyed or
otherwise made unavailable for the purpose of evidence before
the court unless the order is made;
(d) the prejudice, loss or damage likely to be suffered by the
applicant if the order is not made;
(e) the name, address, firm and commercial litigation experience of
an independent solicitor, who agrees to being appointed to serve
the order, supervise its enforcement and do the other things the
court directs;
(f) if the premises to be searched are or include residential
premises—whether or not the applicant believes that the only
occupants of the premises are likely to be young children or an
unaccompanied female, or both;
(g) if the application is made in the Supreme Court and the applicant
claims that the applicant has an existing or prospective cause of
action that is justiciable in Australia—
(i) the basis of the claim for principal relief; and
(ii) if the application is made without being served on the
respondent—any possible defence or other response to the
claim;
(h) if the application is made in the Magistrates Court, the applicant
has started a proceeding in the court and the applicant claims
that the applicant has a cause of action that is justiciable in
Australia—
(i) the basis of the claim for principal relief; and
(ii) if the application is made without being served on the
respondent—any possible defence or other response to the
claim.
(4) The court may amend or set aside the search order.

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 Civil proceedings generally Chapter 2
Preservation of rights and property Part 2.9
Injunctions and similar orders Division 2.9.4
Rule 752

752 Search orders—requirements for making order

(1) The Supreme Court may make a search order if satisfied that—
(a) an applicant seeking the order 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.
(2) The Magistrates Court may make a search order in relation to a
proceeding if satisfied that—
(a) an applicant seeking the order has a strong prima facie case on
an accrued cause of action in the proceeding; 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 the proceeding.

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Chapter 2 Civil proceedings generally
Part 2.9 Preservation of rights and property
Division 2.9.4 Injunctions and similar orders
Rule 753

753 Search orders—terms of order

(1) A search order may direct everyone who is named or described in the
order—
(a) to allow, or arrange to allow, the other people named or
described in the order—
(i) to enter premises stated 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 people named or
described in the order with any information, thing or service
described in the order; and
(c) to allow the other people named or described in the order to take
and keep in their custody anything described in the order; and
(d) not to disclose any information about the order, for up to 3 days
after the day the order is served, except for obtaining legal
advice or legal representation; and
(e) to do or not to do 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 stated 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 other provisions that the court considers
appropriate.
(4) In this rule:
record includes a copy, photograph, film or sample.

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 Civil proceedings generally Chapter 2
Preservation of rights and property Part 2.9
Receivers Division 2.9.5
Rule 754

754 Search orders—independent solicitors

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

755 Search orders—costs

(1) The court may make any order about costs that it considers
appropriate in relation to a search order.
(2) Without limiting subrule (1), an order about costs includes an order
about the costs of anyone affected by a search order.

Division 2.9.5 Receivers

765 Application—div 2.9.5
(1) This division applies only in relation to the appointment of a receiver,
and a receiver appointed, in a proceeding in the Supreme Court.
(2) However, this division does not apply to situations controlled or
regulated by the Corporations Act.

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Chapter 2 Civil proceedings generally
Part 2.9 Preservation of rights and property
Division 2.9.5 Receivers
Rule 766

766 Receiver—agreement to act as etc

(1) A person must not be appointed as a receiver unless the person’s
written agreement to act as receiver is filed in the court.
(2) The court may set aside a receiver’s appointment at any time for an
appropriate reason and make the orders it considers appropriate about
the receivership and the receiver’s remuneration.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

767 Receiver—application for order appointing etc

An application for an order appointing, or directing the appointment
of, a receiver should be served, but if the court is satisfied there is
adequate reason for doing so, it may make the order without the
application being served on anyone.
Note 1 Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.
Note 2 An application may be made before a proceeding starts (see r 706 (Urgent
orders before start of proceeding)).

768 Receiver—address for service

(1) Not later than 7 days after the day a receiver is appointed, the receiver
must file a notice that states the receiver’s address for service.
(2) In this rule:
address for service means—
(a) if the receiver has a home or place of business in the ACT—the
receiver’s home or business address; or
(b) in any other case—the address of a place in the ACT.

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 Civil proceedings generally Chapter 2
Preservation of rights and property Part 2.9
Receivers Division 2.9.5
Rule 769

769 Receiver—security
(1) If the court appoints a receiver, the receiver must file a security,
unless the court otherwise orders.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(2) The receiver’s appointment does not start until the receiver files the
security.
(3) If the court directs the appointment of a receiver, a person must not
be appointed under the direction until the person has filed a security,
unless the court otherwise orders.
(4) A security must—
(a) be approved by the court; and
(b) state that the receiver will account for what is received as
receiver, and will deal with what is received as the court directs.
Note See approved form 2.28 (Receiver's security) AF2006-273.

(5) The court may, at any time, order the amendment or setting aside of
a security filed under this rule.

770 Receiver—remuneration
A receiver is allowed the remuneration (if any) the court decides.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

771 Receiver—accounts
(1) A receiver must submit accounts to the parties at the intervals or on
the dates the court directs.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

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Chapter 2 Civil proceedings generally
Part 2.9 Preservation of rights and property
Division 2.9.5 Receivers
Rule 772

(2) On giving reasonable notice to the receiver, a party is entitled to

inspect, either personally or by an agent, the documents and things on
which the accounts are based.
(3) If a party objects to the receiver’s accounts, the party may serve notice
on the receiver—
(a) stating the items objected to; and
(b) requiring the receiver to file a copy of the accounts within a
stated period of not less than 14 days after the day the notice is
served.
(4) The party must file a copy of the notice served.
(5) If a notice is served on the receiver under subrule (3), the receiver
must file a copy of the accounts, verified by affidavit, within the time
required by the notice.
Note See approved form 2.29 (Receiver's affidavit and account) AF2006-274.

(6) The court may examine the items objected to.

(7) The court must, by order, declare the result of the examination and
may make an order for the costs and expenses of a party or the
receiver.

772 Receiver—default
(1) The court may make any orders it considers appropriate if a receiver
does not, in accordance with these rules or an order of the court—
(a) file an account or other document that is required to be filed; or

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 Civil proceedings generally Chapter 2
Preservation of rights and property Part 2.9
Receivers Division 2.9.5
Rule 773

(b) do something that is required to be done.

Examples of orders
1 discharge the receiver
2 appoint another receiver
3 make an order about costs
4 order the repayment of remuneration already paid to the receiver
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(2) If a receiver fails to comply with a requirement of these rules or an

order of the court to pay into court an amount shown by the receiver’s
accounts to be owed by the receiver, the court may direct that the
receiver pay interest on the amount at the following rate until the
amount is paid into court:
(a) the rate of interest applying, from time to time, under schedule 2,
part 2.2 (Interest after judgment);
(b) if the court considers that another rate is appropriate—that rate.
(3) This rule does not limit the court’s powers to enforce its orders or to
punish contempt of court.

773 Receiver—powers
(1) A receiver has the powers of a receiver and manager, unless the court
otherwise orders.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(2) The court may authorise a receiver to do anything a party might do.
(3) The court may authorise the receiver to do the thing—
(a) either in the receiver’s name or the party’s name; and
(b) either generally or in a particular case; and
(c) whether or not the party is a person with a legal disability.

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Chapter 2 Civil proceedings generally
Part 2.9 Preservation of rights and property
Division 2.9.5 Receivers
Rule 774

(4) If the party is a person with a legal disability, the authorisation has
effect as if the party were not a person with a legal disability.
(5) This rule does not limit the court’s powers to authorise a receiver to
do anything.

774 Receiver—duty in relation to property

(1) This rule applies if a receiver is in possession of property.
(2) The receiver must manage and deal with the property according to the
requirements of the laws of the State or Territory where the property
is situated, in the same way in which the owner or possessor would
be bound to do if in possession.

775 Receiver—liability
A receiver of any property may, without the court’s leave, be sued in
relation to an act done or omission made in exercising any of the
receiver’s powers in relation to the property.

776 Receiver—death of
(1) If a receiver dies, the court may, on the application of a party, make
any orders it considers appropriate about—
(a) the filing and passing of accounts by—
(i) the receiver’s personal representative; or
(ii) anyone else who has, or has had, possession or control of
property the subject of the receivership; and
(b) the payment into court of any amount shown to be owing; and
(c) the delivery of property the subject of the receivership.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

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 Civil proceedings generally Chapter 2
Preservation of rights and property Part 2.9
Sales of land by court order Division 2.9.6
Rule 780

(2) The court must not make an order under subrule (1) unless the
application for the order has been served on the receiver’s personal
representative or anyone else affected by the order.

Division 2.9.6 Sales of land by court order

780 Meaning of land—div 2.9.6
In this division:
land includes an interest in land.

781 Application—div 2.9.6

This division applies only in relation to a proceeding in the Supreme
Court in relation to land.

782 Sale of land—order

The court may order—
(a) that all or part of the land be sold before the proceeding is
decided; and
(b) that any party in receipt of the rents or profits of all or part of
the land, or otherwise in possession of all or part of the land,
give possession to the person that the court directs.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

783 Sale of land—conduct of sale

(1) The court may appoint a party or someone else to have the conduct of
the sale if the court—
(a) makes an order under rule 782 that land be sold; or
(b) by a judgment, orders the sale of land.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
or directions under this rule.

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Chapter 2 Civil proceedings generally
Part 2.9 Preservation of rights and property
Division 2.9.6 Sales of land by court order
Rule 784

(2) The court may direct a party to join in the sale and conveyance or
transfer or in another matter relating to the sale.
(3) The court may permit the person having the conduct of the sale to sell
the land in a way the person considers appropriate or give directions
about conducting the sale.
(4) Directions given under subrule (3) may include the following:
(a) stating the kind of sale, including, for example, sale by contract
conditional on the court’s approval, private treaty or tender;
(b) setting a minimum or reserve price;
(c) requiring payment of the purchase money into court or to a
trustee or someone else;
(d) for settling the particulars and conditions of sale;
(e) for obtaining evidence of value;
(f) stating the remuneration to be allowed to a real estate agent or
someone else.

784 Sale of land—certificate of sale result

(1) Unless the court otherwise orders, the result of a sale of land by an
order of the court must be certified—
(a) for a public auction—by the real estate agent who conducted the
sale; or
(b) otherwise—by the person having the conduct of the sale or by
the person’s solicitor.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
otherwise ordering.

(2) The court may require that the certificate be verified by affidavit of
the person certifying.

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 Civil proceedings generally Chapter 2
Preservation of rights and property Part 2.9
Sales of land by court order Division 2.9.6
Rule 785

(3) The person required to give the certificate under subrule (1) must file
the certificate and affidavit (if any) not later than 7 days after the day
of settlement of the sale.

785 Mortgage, exchange or partition

If the court makes an order for the mortgage, exchange or partition of
land, rule 783 (Sale of land—conduct of sale) and rule 784 (Sale of
land—certificate of sale result) apply to the mortgage, exchange or
partition, with necessary changes, in the same way as they apply to
the sale of land under this division.

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Chapter 2 Civil proceedings generally
Part 2.10 Offers of compromise

Rule 1000

Part 2.10 Offers of compromise

1000 Application—pt 2.10

This part is subject to the Civil Law (Wrongs) Act 2002, chapter 14
(Limitations on legal costs) and the Road Transport (Third-Party
Insurance) Act 2008, part 4.8 (Mandatory final offers) and part 4.9
(Court proceedings).

1001 Definitions—pt 2.10

In this part:
judgment in favour of the defendant includes a dismissal of an
originating application or an originating claim.
offer means an offer of compromise under rule 1002.
period of acceptance, for an offer, means the period when the offer
is open for acceptance.

1002 Making offer

(1) A party may, by written notice, make an offer to another party to
compromise any claim in proceedings, either in whole or in part, on
stated terms.
(2) An offer under this rule must—
(a) identify—
(i) the claim or part of the claim to which it relates; and
(ii) the proposed orders for disposal of the claim or part of the
claim including, if a monetary judgment is proposed, the
amount of the judgment; and

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 Civil proceedings generally Chapter 2
Offers of compromise Part 2.10

Rule 1002

(b) if the offer relates only to part of the proceedings, include a

statement—
(i) for an offer by the plaintiff—stating whether the remainder
of the proceedings will be abandoned or pursued; or
(ii) for an offer by a defendant—stating whether the remainder
of the proceedings will be defended or conceded; and
(c) not include an amount for costs or state that it is inclusive of
costs; and
(d) state that the offer has been made in accordance with this part;
and
(e) state the period of acceptance.
(3) An offer under this rule may propose—
(a) a judgment in favour of the defendant—
(i) with no order as to costs; or
(ii) despite subrule (2) (c), with an order that the defendant will
pay to the plaintiff a stated amount for the plaintiff’s costs;
or
(b) that the costs as agreed or assessed up to the time of the offer
will be paid by the person making the offer; or
(c) that the costs as agreed or assessed on a party and party basis or
indemnity basis will be paid out of a stated estate or fund
identified in the offer.
(4) If the offeror makes an offer before the offeree is given particulars of
the offeror’s claim, and documents available to the offeror necessary
for the offeree to properly consider the offer, the offeree may, within
14 days after receiving the offer give notice to the offeror that—
(a) the offeree is unable to assess the reasonableness of the offer
because of the lack of particulars or documents; and

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Chapter 2 Civil proceedings generally
Part 2.10 Offers of compromise

Rule 1003

(b) if rule 1010 applies—the offeree will seek an order under

rule 1010 (2).
(5) The end of a period of acceptance for an offer—
(a) for an offer made 2 months or more before the date set down for
the start of the trial—must be not less than 28 days after the day
the offer is made; and
(b) in any other case—must be after a period that is reasonable in
the circumstances.
(6) Unless the notice of offer otherwise provides, an offer providing for
the payment of money or doing of an act is taken to provide for the
payment or doing of the act within 28 days after the offer is accepted.
(7) Unless the notice of offer otherwise provides, an offer is made
without prejudice.
(8) A party may make more than 1 offer in relation to the same claim.
(9) Unless the court orders otherwise, an offer may not be withdrawn
during the period of acceptance for the offer.
(10) A notice of offer purporting to exclude, modify or restrict rule 1010
or rule 1011 is invalid.

1003 Acceptance of offer

(1) A party may accept an offer by serving written notice on the offeror
at any time during the period of acceptance for the offer.
(2) The offer may be accepted even if a further offer is made during the
period of acceptance for the offer.
(3) If an offer is accepted under this rule, any party to the offer may apply
for judgment to be entered accordingly.

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 Civil proceedings generally Chapter 2
Offers of compromise Part 2.10

Rule 1004

1004 Withdrawal of acceptance

(1) A party who accepts an offer may, by written notice served on the
offeror, withdraw the acceptance if—
(a) the offer provides for the doing of an act or for payment of
money, and the act is not done or the money is not paid to the
offeree or into court within 28 days after acceptance of the offer
or within another time provided for in the offer; or
(b) the court grants the party leave to withdraw the acceptance.
(2) If the party withdraws acceptance of the offer—
(a) except where paragraph (b) provides otherwise, all steps in the
proceedings that were taken as a consequence of the acceptance
no longer have effect; and
(b) the court may, after the offer is withdrawn or when granting
leave to withdraw the offer, give directions that—
(i) restore the parties as nearly as possible to their positions at
the time of acceptance; and
(ii) give effect to any steps in the proceedings taken as a
consequence of the acceptance; and
(iii) provide for the further conduct of the proceedings.

1005 Failure to comply with accepted offer

(1) If the plaintiff, as a party to an accepted offer, fails to comply with
the terms of the offer, the defendant is entitled—
(a) to a judgment or order that is appropriate to give effect to the
terms of the accepted offer; or
(b) to an order that the proceedings be dismissed, and to judgment
accordingly, as the defendant elects, unless the court orders
otherwise.

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Chapter 2 Civil proceedings generally
Part 2.10 Offers of compromise

Rule 1006

(2) If the defendant, as a party to an accepted offer, fails to comply with

the terms of the offer, the plaintiff is entitled—
(a) to a judgment or order that is appropriate to give effect to the
terms of the accepted offer; or
(b) to an order that the defence be struck out, and to judgment
accordingly, as the plaintiff elects, unless the court orders
otherwise.
(3) If a party to an accepted offer fails to comply with the terms of the
offer, and a defendant in the proceedings has made a counterclaim
that is not the subject of the accepted offer, the court—
(a) may make an order or give a judgment under this rule; and
(b) may make an order as to the further conduct of proceedings on
the counterclaim it considers appropriate.

1006 Disclosure of offer to court

(1) No statement that an offer has been made may be included in any
pleading or affidavit.
(2) If an offer is not accepted, no communication in relation to the offer
may be disclosed to the court at trial.
(3) Despite subrule (2), an offer may be disclosed to the court—
(a) if a notice of offer provides that the offer is not made without
prejudice; or
(b) to the extent necessary to enable the offer to be taken into
account for determining an amount of interest up to judgment;
or
(c) after all questions of liability and relief have been determined,
to the extent necessary to determine questions as to costs.

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 Civil proceedings generally Chapter 2
Offers of compromise Part 2.10

Rule 1007

1007 Compromises in certain Supreme Court proceedings

(1) This rule applies to proceedings in the Supreme Court concerning—
(a) the administration of a deceased person’s estate; or
(b) property the subject of a trust; or
(c) the construction of an Act, instrument or other document,
involving any matter in which 1 or more people have the same
interest or liability.
(2) If a compromise affects a person who is not a party but who has the
same interest or liability, and the court is satisfied that the
compromise will benefit the person, the court may approve a
compromise that—
(a) 1 party has agreed to; or
(b) the court has sanctioned on behalf of the party.
(3) A compromise under subrule (2) binds the person who is not a party
unless the court’s approval of the compromise has been obtained by
fraud or nondisclosure of material facts.

1008 Offer to contribute

(1) An offer in a proceeding must not be brought to the attention of the
court until all questions of liability or amount of debt or damages have
been decided, if in the proceeding—
(a) one party (the first party) stands to be held liable to another
party (the second party) to contribute towards any debt or
damages which may be recovered against the second party in the
proceeding; and
(b) the first party, at any time after filing a notice of intention to
respond or defence, makes an offer to the second party to
contribute to the debt or damages; and
(c) the offer is made without prejudice to the first party’s defence.

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Chapter 2 Civil proceedings generally
Part 2.10 Offers of compromise

Rule 1009

(2) In this rule:

debt or damages includes any interest up to judgment claimed on any
debt or damages.

1009 Offer accepted and no provision for costs

(1) This rule applies if an offer—
(a) is accepted in relation to a claim; and
(b) does not make provision for costs in relation to the claim.
(2) If the offer proposed a judgment in favour of the plaintiff in relation
to the claim, the plaintiff is entitled to an order against the defendant
for the plaintiff’s costs in relation to the claim, assessed on a party
and party basis up to the time when the offer was made.
(3) If the offer proposed a judgment in favour of the defendant in relation
to the claim (including a dismissal of an originating application or
originating claim), the defendant is entitled to an order against the
plaintiff for the defendant’s costs in relation to the claim, assessed on
a party and party basis up to the time when the offer was made.

1010 Offer not accepted and judgment no less favourable to

plaintiff
(1) This rule applies if an offer is made by the plaintiff in relation to a
claim, but not accepted by the defendant, and the plaintiff obtains an
order or judgment on the claim no less favourable to the plaintiff than
the terms of the offer.
(2) Unless the court orders otherwise, the plaintiff is entitled to an order
against the defendant for the plaintiff’s costs in relation to the claim—
(a) if the claim is a personal injury claim—assessed on a solicitor
and client basis for the whole of the proceeding; or

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 Civil proceedings generally Chapter 2
Offers of compromise Part 2.10

Rule 1011

(b) in any other case—

(i) assessed on a party and party basis up to the time when the
costs are to be assessed on a solicitor and client basis under
subparagraph (ii); and
(ii) assessed on a solicitor and client basis—
(A) if the offer was made before the first day of the trial—
from the day the period for acceptance of the offer
ends; and
(B) if the offer was made on or after the first day of the
trial—at and from 11 am on the day after the offer was
made.

1011 Offer not accepted and judgment no more favourable to

plaintiff
(1) This rule applies if an offer is made by the defendant in relation to a
claim, but not accepted by the plaintiff, and the plaintiff obtains an
order or judgment on the claim no more favourable to the plaintiff
than the terms of the offer.
(2) Unless the court orders otherwise—
(a) if the claim is a personal injury claim—the plaintiff—
(i) is entitled to an order against the defendant for the
plaintiff’s costs in relation to the claim, assessed on a party
and party basis up to and including the day the offer was
made; and
(ii) is not entitled to an order against the defendant for the
plaintiff’s costs in relation to the claim after the day the
offer was made; but
(iii) is not required to pay the defendant’s costs in relation to
the claim on and from the day the offer was made; or

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Chapter 2 Civil proceedings generally
Part 2.10 Offers of compromise

Rule 1012

(b) in any other case—

(i) the plaintiff is entitled to an order against the defendant for
the plaintiff’s costs in relation to the claim, assessed on a
party and party basis up to the time when the defendant is
entitled to costs under subparagraph (ii); and
(ii) the defendant is entitled to an order against the plaintiff for
the defendant’s costs in relation to the claim, assessed on a
party and party basis—
(A) if the offer was made before the first day of the trial—
from the day the period for acceptance of the offer
ends; and
(B) if the offer was made on or after the first day of the
trial—at and from 11 am on the day after the offer was
made.

1012 Offer not accepted and judgment no less favourable to

defendant
(1) This rule applies if the offer is made by the defendant, but not
accepted by the plaintiff, and the defendant obtains an order or
judgment on the claim no less favourable to the defendant than the
terms of the offer.
(2) Unless the court orders otherwise—
(a) the defendant is entitled to an order against the plaintiff for the
defendant’s costs in relation to the claim, to be assessed on a
party and party basis, up to the time when the defendant is
entitled to costs under paragraph (b); and
(b) the defendant is entitled to an order against the plaintiff for the
defendant’s costs in relation to the claim, assessed on a solicitor
and client basis—
(i) if the offer was made before the first day of the trial—on
and from the day after the offer was made; and

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 Civil proceedings generally Chapter 2
Offers of compromise Part 2.10

Rule 1013

(ii) if the offer was made on or after the first day of the trial—
at and from 11 am on the day after the offer was made.

1013 Costs in relation to interest

(1) This rule applies if a plaintiff obtains an order or judgment for the
payment of a debt or damages, and—
(a) the amount payable under the order or for which the judgment
is given includes interest or damages in the nature of interest; or
(b) the court, by a separate order, awards the plaintiff interest or
damages in the nature of interest in relation to the amount.
(2) In determining the consequences for costs under rule 1010, rule 1011
or rule 1012, the court must disregard the interest, or damages in the
nature of interest, that relates to the period after the day the offer was
made.
(3) For this rule, the court may be informed that the offer was made, and
the date that the offer was made, but must not be informed of its terms.

1014 Miscellaneous
(1) Before the court makes an order under rule 1010 or rule 1011, the
party to whom the offer was made may request that the party making
the offer (the offeror) satisfy the court that the offeror was at all
material times willing and able to carry out the offer.
(2) If the court is satisfied that the offeror was at all material times willing
and able to carry out the offer, then, unless the court orders otherwise,
the party making the request must pay the costs of the offeror caused
by the request.
(3) If the court is not satisfied that the offeror was at all material times
willing and able to carry out the offer, then, unless the court orders
otherwise—
(a) rule 1010 and rule 1011 do not apply; and

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Chapter 2 Civil proceedings generally
Part 2.10 Offers of compromise

Rule 1014

(b) the offeror must pay the costs of the party making the request
caused by the request.
(4) Unless the court orders otherwise, any application for an order for
costs under rule 1010 or rule 1011 must be made immediately after
the order or judgment giving rise to the entitlement to the order for
costs is given.

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 Civil proceedings generally Chapter 2
Resolving proceedings early Part 2.11
Uncontested debts and liquidated demands Division 2.11.1
Rule 1100

Part 2.11 Resolving proceedings early

Division 2.11.1 Uncontested debts and liquidated
demands
1100 Meaning of prescribed costs amount—div 2.11.1
In this division:
prescribed costs amount means the amount applying under
schedule 3, part 3.1 (Claim for debt or liquidated demand).

1101 Application—div 2.11.1

This division applies to a proceeding that—
(a) is for a debt or liquidated demand only; and
(b) is started by originating claim.
Note A proceeding incorrectly started by originating application is taken to be
a proceeding started by originating claim if the court orders that the
proceeding continue as if started by originating claim (see r 39).

1102 Stay of debt etc proceeding on payment of amount

sought
(1) The proceeding is stayed if, within the time allowed for filing any
notice of intention to respond or defence, the defendant pays the
plaintiff—
(a) the amount claimed; and
(b) any amounts claimed for interest; and
(c) the prescribed costs amount plus any filing and service fees
actually paid.
Note Rule 102 deals with filing and service of a notice of intention to respond
or defence.

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Chapter 2 Civil proceedings generally
Part 2.11 Resolving proceedings early
Division 2.11.1 Uncontested debts and liquidated demands
Rule 1103

(2) If the proceeding is in the Supreme Court, and could properly have
been brought in the Magistrates Court, the prescribed costs amount
payable by the defendant under subrule (1) (c) is the prescribed costs
amount for the Magistrates Court.
(3) This rule does not apply to the assessment or enforcement of costs.

1103 Assessment of costs for stayed debt etc proceeding

(1) This rule applies if a proceeding is stayed under rule 1102 (1).
(2) The plaintiff may have the plaintiff’s costs assessed if—
(a) the plaintiff claims for costs and disbursements (other than any
filing and service fees actually paid) more than the prescribed
costs amount; or
(b) the plaintiff claims assessed costs.
(3) If the proceeding is in the Supreme Court, and could properly have
been brought in the Magistrates Court, the prescribed costs amount
mentioned in subrule (2) (a) is the prescribed costs amount for the
Magistrates Court.

1104 Judgment on acknowledgment of debt or liquidated

demand
(1) The defendant may file a statement acknowledging—
(a) the amount claimed; and
(b) if interest is claimed—interest.
Note See approved form 2.34 (Acknowledgement of debt or liquidated
demand) AF2006-279.

(2) Subrule (1) does not apply if the defendant has filed a defence or the
plaintiff has filed an application for default judgment in accordance
with these rules.

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 Civil proceedings generally Chapter 2
Resolving proceedings early Part 2.11
Uncontested debts and liquidated demands Division 2.11.1
Rule 1104

(3) On the filing of a statement under subrule (1), the court may enter
judgment for the plaintiff for—
(a) the amount claimed; and
(b) if interest is claimed—
(i) interest worked out in accordance with the rate stated in the
claim for relief to the date of judgment; or
(ii) if no rate of interest is stated in the claim for relief—
interest to the date of judgment, or a lump sum instead of
that interest, decided by the court; and
(c) if costs are claimed—
(i) if the plaintiff has claimed costs and disbursements not
more than the prescribed costs amount (plus any filing and
service fees actually paid)—the amount claimed for costs
and disbursements; or
(ii) in any other case—costs to be agreed or assessed.
(4) The court may enter judgment for the plaintiff without a hearing.
(5) In deciding interest or a lump sum for subrule (3) (b), the court may
have regard to the rate of interest applying, from time to time, under
schedule 2, part 2.1 (Interest up to judgment).
(6) If the period for which interest is to be awarded is not stated in the
claim for relief, interest is recoverable only from the date of the issue
of the originating claim.
(7) If the proceeding is in the Supreme Court, and could properly have
been brought in the Magistrates Court, the prescribed costs amount
mentioned in subrule (3) (c) (i) is the prescribed costs amount for the
Magistrates Court.
(8) Judgment entered under subrule (3) fully discharges all the plaintiff’s
claims in the proceeding.

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Chapter 2 Civil proceedings generally
Part 2.11 Resolving proceedings early
Division 2.11.2 Default by plaintiff
Rule 1110

(9) If default judgment against the defendant has been set aside under
rule 1128, the defendant must not file a statement acknowledging the
amount claimed without the court’s leave.
Note Pt 6.2 (Applications in proceedings) applies to an application for leave.

Division 2.11.2 Default by plaintiff

1110 Default by plaintiff—dismissal of proceeding
(1) A defendant in a proceeding may apply to the court for an order
dismissing the proceeding for want of prosecution if the plaintiff—
(a) is required to take a step in the proceeding required by these
rules, or to comply with an order of the court, not later than the
end of a particular time; and
(b) does not do what is required before the end of that time.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(2) The court may dismiss the proceeding or make any other 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) However, the court may amend or set aside an order dismissing the
proceeding for want of prosecution made in the absence of the
plaintiff without the need for an appeal.
Note Rule 6901 (Orders may be made on conditions) provides that the court
may make an order under these rules on any conditions it considers
appropriate.

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 Civil proceedings generally Chapter 2
Resolving proceedings early Part 2.11
Default by defendant Division 2.11.3
Rule 1115

Division 2.11.3 Default by defendant

1115 Definitions—div 2.11.3
In this division:
affidavit in support—see rule 1119 (Default judgment—relevant
affidavits).
in default—see rule 1117 (When is a defendant in default—
generally).
qualified person means any of the following:
(a) the plaintiff’s solicitor;
(b) if the plaintiff is a person with a legal disability—the person’s
litigation guardian;
(c) if the person is a corporation—a member or officer of the
corporation with knowledge of the facts as far as they are known
to the corporation;
(d) if the plaintiff is a corporation for which a receiver or a receiver
and manager has been appointed—the receiver or the receiver
and manager;
(e) if the plaintiff is a corporation for which a liquidator, provisional
liquidator or administrator has been appointed—the liquidator,
provisional liquidator or administrator;
(f) if the plaintiff is an incorporated body that can sue and be sued—
a member or officer of the body with knowledge of the facts as
far as they are known to the body;
(g) if the plaintiff is the Commonwealth, a State or a Territory—an
officer or employee of the Commonwealth, State or Territory
with knowledge of the facts as far as they are known to the
Commonwealth, State or Territory;

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Chapter 2 Civil proceedings generally
Part 2.11 Resolving proceedings early
Division 2.11.3 Default by defendant
Rule 1116

(h) in any other case—an officer, employee or agent of the plaintiff

having knowledge of the facts as far as they are known to the
plaintiff.

1116 Application—div 2.11.3

This division applies to—
(a) a proceeding started by originating claim; and
(b) a counterclaim, or third-party notice, made in a proceeding
started by originating claim.
Note 1 A proceeding incorrectly started by originating application is taken to be
a proceeding started by originating claim if the court orders that the
proceeding continue as if started by originating claim (see r 39).
Note 2 This division applies to a counterclaim against a person not a party to the
original proceeding as if it were a proceeding started by originating claim
(see r 462 (4) (a) and (5)).
Note 3 This division applies to a notice including a subsequent party as if the
notice were a third-party notice (see r 322 (Third-party notice—fourth
and subsequent parties)).

1117 When is a defendant in default—generally

(1) For this division, a defendant is in default in relation to a plaintiff’s
claim for relief if—
Note Plaintiff and defendant are defined in r 20.

(a) for a proceeding started by originating claim—

(i) the defendant does not file a notice of intention to respond
or defence within the time required by rule 102 (Notice of
intention to respond or defence—filing and service) or any
further period agreed between the relevant parties or
allowed by the court; or

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 Civil proceedings generally Chapter 2
Resolving proceedings early Part 2.11
Default by defendant Division 2.11.3
Rule 1117

(ii) the defendant files a notice of intention to respond within

the time required by rule 102 or any further period agreed
by the parties or allowed by the court, but does not file a
defence within the time required by rule 102 or any further
period agreed between the relevant parties or allowed by
the court; or
(iii) the defendant files a conditional notice of intention to
respond that becomes an unconditional notice of intention
to respond but does not file a defence within the time
required by rule 111 (Conditional notice of intention to
respond) or any further period agreed between the relevant
parties or allowed by the court; or
(iv) the defendant files a defence but the court orders the
defence to be struck out; and
Note Subrule (1) (a) applies to a person not a party to the original proceeding
who is included as a party by a counterclaim (see r 462 (4) (a) and (5)).

(b) for a counterclaim—

(i) the defendant to the counterclaim does not file an answer
to the counterclaim within the time required by rule 466 (3)
(Counterclaim—answer to) or any further period agreed
between the relevant parties or allowed by the court; or
(ii) the defendant to the counterclaim files an answer to the
counterclaim but the court orders the answer to be struck
out; and
(c) for a third-party notice—
(i) the third party does not file a notice of intention to respond
or defence within the time required by rule 102 or any
further period agreed between the relevant parties or
allowed by the court; or

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Chapter 2 Civil proceedings generally
Part 2.11 Resolving proceedings early
Division 2.11.3 Default by defendant
Rule 1117

(ii) the third party files a notice of intention to respond within

the time required by rule 102 or any further period agreed
by the parties or allowed by the court, but does not file a
defence within the time required by rule 102 or any further
period agreed between the relevant parties or allowed by
the court; or
(iii) the third party files a conditional notice of intention to
respond that becomes an unconditional notice of intention
to respond but does not file a defence within the time
required by rule 111 or any further period agreed between
the relevant parties or allowed by the court; or
(iv) the third party files a defence but the court orders the
defence to be struck out.
Note 1 Pt 2.3 (Notice of intention to respond and defence) applies to a third-party
notice (see r 311 (Third-party notice—notice of intention to respond and
defence)).
Note 2 Rule 425 (Pleadings—striking out) deals with striking out of defences
and answers.
Note 3 Rule 6351 (Time—extending and shortening by court order) provides for
the extending of time by the court.

(2) However, the defendant is not in default in relation to the plaintiff’s

claim for relief if—
(a) for a proceeding started by originating claim—
(i) the proceeding is stayed under rule 1102 (Stay of debt etc
proceeding on payment of amount sought); or
(ii) the defendant files a statement under rule 1104 (Judgment
on acknowledgment of debt or liquidated demand); or
(iii) the defendant files a defence after the time required by rule
102 or any further period agreed between the relevant
parties or allowed by the court, but before a default
judgment is entered against the defendant; or

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 Civil proceedings generally Chapter 2
Resolving proceedings early Part 2.11
Default by defendant Division 2.11.3
Rule 1118

(b) for a counterclaim—the defendant to the counterclaim files an

answer to the counterclaim after the time required by
rule 466 (3) or any further period agreed between the relevant
parties or allowed by the court, but before a default judgment is
entered against the defendant to the counterclaim; or
(c) for a third-party notice—the third party files a defence after the
time required by rule 102 or any further period agreed between
the relevant parties or allowed by the court, but before a default
judgment is entered against the third party.

1118 Default judgment—generally

(1) If a defendant is in default in relation to a plaintiff’s claim for relief,
the plaintiff—
(a) may apply to the court for judgment to be entered under this
division against the defendant; and
(b) may carry on the proceeding against any other party to the
proceeding.
(2) If rule 1126 (Default judgment—other claims) applies in relation to
the application, the application must be accompanied by the relevant
affidavits.
Note 1 Pt 6.2 (Applications in proceedings) applies to the application.
Note 2 For the meaning of relevant affidavits, see r 1119.

(3) If rule 1126 does not apply to the application, the application is made
by filing a draft judgment accompanied by the relevant affidavits.
Note See approved form 2.35 (Default judgment) AF2016-103.

(4) Part 6.2 (Applications in proceedings) does not apply to an

application under subrule (3).
(5) The draft judgment and relevant affidavits mentioned in subrule (3)
need not be served on anyone unless the court otherwise orders on its
own initiative.

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Chapter 2 Civil proceedings generally
Part 2.11 Resolving proceedings early
Division 2.11.3 Default by defendant
Rule 1119

(6) The court may enter judgment under this division (other than
rule 1126) in favour of the plaintiff without a hearing.

1119 Default judgment—relevant affidavits

(1) For an application under rule 1118, the relevant affidavits are—
(a) for a proceeding started by originating claim—an affidavit of
service of the originating claim; and
Note This division applies to a counterclaim against a person not a party to the
original proceeding as if it were a proceeding started by originating claim
(see r 462 (4) (a) and (5)).

(b) an affidavit in support of the application (the affidavit in

support) sworn by—
(i) the plaintiff or, if there are 2 or more plaintiffs, any
plaintiff; or
(ii) a qualified person.
Note See approved form 2.36 (Affidavit in support of application for default
judgment for debt or liquidated demand) AF2006-281.

(2) The plaintiff’s solicitor may swear an affidavit in support only if the
source of the knowledge of the facts deposed is—
(a) the plaintiff; or
(b) if there are 2 or more plaintiffs—any plaintiff; or
(c) another qualified person.

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 Civil proceedings generally Chapter 2
Resolving proceedings early Part 2.11
Default by defendant Division 2.11.3
Rule 1120

(3) An affidavit in support must be sworn not earlier than 14 days before
the day the affidavit is filed in the court.
Note For what must be included in an affidavit of support, see the following
rules dealing with default judgment for particular kinds of claims:
• r 1120 (Default judgment—debt or liquidated demand)
• r 1122 (Default judgment—unliquidated damages)
• r 1123 (Default judgment—detention of goods)
• r 1124 (Default judgment—recovery of possession of land)
• r 1125 (Default judgment—mixed claims)
• r 1126 (Default judgment—other claims).

1120 Default judgment—debt or liquidated demand

(1) This rule applies if a plaintiff’s claim for relief against a defendant in
default is for a debt, liquidated demand or claim for unliquidated
damages mentioned in rule 418 (2) (Pleadings—amount of
unliquidated damages), with or without interest.
(2) On application by the plaintiff under rule 1118 (Default judgment—
generally), the court may enter judgment for the plaintiff for an
amount not more than the amount claimed, together with—
(a) if interest is claimed—the amount of interest stated in the
affidavit in support; and
(b) if costs are claimed—
(i) the amount of costs stated in the affidavit in support; or
(ii) costs to be agreed or assessed.
(3) The affidavit in support mentioned in rule 1119 must—
(a) state the amount owing to the plaintiff, in relation to the claim
for relief, at the time the originating claim was filed; and
(b) give particulars of any reduction of the amount owing, and costs,
because of any payments made, or credits accrued, since the
originating claim was filed; and

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Part 2.11 Resolving proceedings early
Division 2.11.3 Default by defendant
Rule 1121

(c) if interest is claimed, include—

(i) a statement of the amount of interest claimed; and
(ii) a statement that the amount of interest is worked out in
accordance with—
(A) the rate stated in the plaintiff’s claim for relief; or
(B) the rate of interest applying from time to time under
schedule 2, part 2.1 (Interest up to judgment); and
(d) if costs are claimed, include—
(i) under schedule 3, part 3.2 (Default judgment)—
(A) a statement of the amount of costs claimed; and
(B) a copy of each invoice and receipt for the filing and
service fees paid in relation to the claim for relief; or
(ii) in any other case—a statement that costs are to be agreed
or assessed.
(4) If the period for which interest is to be awarded is not stated in the
claim for relief, interest is recoverable only from the date of the issue
of the originating claim.

1121 Default judgment for debt or liquidated demand—

assessment of costs
(1) This rule applies if—
(a) a plaintiff’s claim for relief against a defendant in default is only
for a debt or liquidated demand, with or without interest; and
(b) the court enters judgment for the plaintiff under rule 1120.

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 Civil proceedings generally Chapter 2
Resolving proceedings early Part 2.11
Default by defendant Division 2.11.3
Rule 1122

(2) The plaintiff’s costs and disbursements (plus any filing and service
fees actually paid) must be allowed without assessment if the costs
and disbursements claimed (other than any filing and service fees
actually paid) are not more than the costs amount applying, from time
to time, under schedule 3, part 3.2 (Default judgment).
(3) Subrule (2) is subject to rule 1725 (Solicitors’ costs and determined
fees—Supreme Court judgment within Magistrates Court
jurisdiction).
(4) The plaintiff’s costs and disbursements must be agreed or assessed if
the costs and disbursements claimed (other than any filing and service
fees actually paid) are more than the costs amount applying under
schedule 3, part 3.2 (Default judgment).
Note See r 1702 (Costs—agreement about costs).

1122 Default judgment—unliquidated damages

(1) This rule applies if a plaintiff’s claim for relief against a defendant in
default is for unliquidated damages, with or without another claim.
(2) On application by the plaintiff under rule 1118 (Default judgment—
generally), the court may enter judgment for the plaintiff against the
defendant for damages to be assessed.
(3) The affidavit in support mentioned in rule 1119 (Default judgment—
relevant affidavits) must state—
(a) that the proceeding has not been settled with the defendant; and
(b) any amounts paid in relation to the damages.
(4) For an application in the Magistrates Court, the court may decide the
claim without listing the matter for hearing.

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Chapter 2 Civil proceedings generally
Part 2.11 Resolving proceedings early
Division 2.11.3 Default by defendant
Rule 1123

1123 Default judgment—detention of goods

(1) This rule applies if a plaintiff’s claim for relief against a defendant in
default is for the detention of goods only.
(2) On application by the plaintiff under rule 1118, the court may enter
judgment for the plaintiff against the defendant, in accordance with
the plaintiff’s claim for relief, for either—
(a) the return of the goods to the plaintiff, or payment to the plaintiff
of the value of the goods and costs; or
(b) payment to the plaintiff of the value of the goods and costs.
(3) The affidavit in support mentioned in rule 1119 must—
(a) state which goods have, and which have not, been delivered to
the plaintiff since the originating claim or counterclaim was
filed; and
(b) give particulars of any payments the defendant has made to the
plaintiff for the goods, or state that no payments have been
made, since the originating claim or counterclaim was filed; and
(c) state the costs claimed.
(4) If the court enters judgment under subrule (2) (a), and the plaintiff
subsequently applies for an order under this subrule, the court may
make an order for the return of the goods to the plaintiff without the
option of the defendant paying the value of the goods.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(5) If the court enters judgment under this rule for the return of goods, it
may state a date before which the return must take place.
(6) If the court enters judgment for the return of goods, but the goods are
subsequently damaged, destroyed or otherwise made unavailable for
return, the court may, on the plaintiff’s application, order the
defendant to pay the value of the goods to the plaintiff.

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 Civil proceedings generally Chapter 2
Resolving proceedings early Part 2.11
Default by defendant Division 2.11.3
Rule 1124

(7) In this rule:

value, of the goods, means the value as assessed by, or in accordance
with the directions of, the court.

1124 Default judgment—recovery of possession of land

(1) This rule applies if a plaintiff’s claim for relief against a defendant in
default is for the recovery of possession of land only.
(2) On application by the plaintiff under rule 1118 (Default judgment—
generally), the court may enter judgment for the plaintiff for—
(a) recovery of possession of the land as against the defendant; and
(b) the following costs:
(i) costs for issuing the originating claim or counterclaim;
(ii) costs for obtaining judgment;
(iii) any other fees and payments, to the extent they have been
reasonably incurred and paid.
(3) If, before judgment is entered, a person files an application under
division 2.4.2 (Including and substituting parties) for the person to be
included as a defendant, the court must not enter judgment under this
rule until it disposes of the application.
(4) The affidavit in support mentioned in rule 1119 (Default judgment—
relevant affidavits) must—
(a) identify anyone (other than the parties to the proceeding) who is
in possession of the land or any part of it—
(i) at the time the originating claim was filed; or

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Chapter 2 Civil proceedings generally
Part 2.11 Resolving proceedings early
Division 2.11.3 Default by defendant
Rule 1124

(ii) if the claim for possession arises from an amendment to the

originating claim—at the time the amendment was made;
and
Note This division applies to a counterclaim against a person not a party to the
original proceeding as if it were a proceeding started by originating claim
(see r 462 (4) (a) and (5)).

(b) for each person mentioned in paragraph (a), state—

(i) that the person’s possession of the land is not to be
disturbed; or
(ii) that the person no longer possesses any part of the land; or
(iii) that the person has been served with the originating claim
and that the person—
(A) has not applied for leave to file a notice of intention
to respond or defence under rule 151 (Proceeding for
possession of land—leave to file defence etc); or
(B) has been given leave to file a notice of intention to
respond or defence but has not filed the notice or
defence in accordance with rule 152 (Proceeding for
possession of land—filing defence etc); and
(c) if the claim for possession of the land arises from a failure to pay
the amount—give particulars of the failure; and
(d) state the costs claimed.

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 Civil proceedings generally Chapter 2
Resolving proceedings early Part 2.11
Default by defendant Division 2.11.3
Rule 1125

1125 Default judgment—mixed claims

(1) This rule applies if a plaintiff’s claims for relief against a defendant
in default include 2 or more of the claims mentioned in the following
rules and no other claim:
• rule 1120 (Default judgment—debt or liquidated demand)
• rule 1122 (Default judgment—unliquidated damages)
• rule 1123 (Default judgment—detention of goods)
• rule 1124 (Default judgment—recovery of possession of land).
(2) On application by the plaintiff under rule 1118 (Default judgment—
generally), the plaintiff is entitled to have judgment entered for the
plaintiff against the defendant on all or any of the claims that the
plaintiff could obtain under those rules as if that were the plaintiff’s
only claim against the defendant.
(3) For an application under this rule, the affidavit in support mentioned
in rule 1119 (Default judgment—relevant affidavits) must comply
with the requirements of this division in relation to each claim.

1126 Default judgment—other claims

(1) This rule applies if a defendant is in default and the plaintiff is not
entitled to apply for judgment under any of the following rules:
• rule 1120 (Default judgment—debt or liquidated demand)
• rule 1122 (Default judgment—unliquidated damages)
• rule 1123 (Default judgment—detention of goods)
• rule 1124 (Default judgment—recovery of possession of land).
(2) On application by the plaintiff under rule 1118 (Default judgment—
generally), the court may enter the judgment it considers is justified
on the plaintiff’s claim for relief even if the judgment was not
claimed.

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Chapter 2 Civil proceedings generally
Part 2.11 Resolving proceedings early
Division 2.11.3 Default by defendant
Rule 1127

(3) The affidavit in support mentioned in rule 1119 (Default judgment—

relevant affidavits) must state—
(a) that the proceeding has not been settled with the defendant; and
(b) the costs claimed.

1127 Default judgment—costs only

(1) The court may enter judgment for a plaintiff against a defendant in
default for costs alone if, under this division—
(a) the plaintiff is entitled to judgment against the defendant for any
relief and for costs; and
(b) the defendant satisfies the plaintiff’s claim for relief; and
(c) because the defendant has satisfied the plaintiff’s claim for
relief, it is unnecessary for the plaintiff to continue the
proceeding against the defendant.
(2) On application by the plaintiff under rule 1118 (Default judgment—
generally), the court may enter judgment for the plaintiff against a
defendant in default for costs alone if, whatever the plaintiff’s claim
for relief against the defendant—
(a) the defendant satisfies the plaintiff’s claim for relief or complies
with the plaintiff’s demands; or
(b) it otherwise becomes unnecessary for the plaintiff to continue
the proceeding against the defendant.

1128 Default judgment—setting aside etc

(1) The court may, by order, amend or set aside a judgment entered under
this division, and any enforcement of it.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

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 Civil proceedings generally Chapter 2
Resolving proceedings early Part 2.11
Default by defendant—partial defence Division 2.11.4
Rule 1135

(2) Without limiting rule 6901 (Orders may be made on conditions), an

order may be made on any of the following conditions:
(a) conditions about costs;
(b) conditions about giving security.

Division 2.11.4 Default by defendant—partial defence

1135 Definitions—div 2.11.4
In this division:
in default—see rule 1137 (When is a defendant in default—partial
defence).
undefended part of the claim—see rule 1137.

1136 Application—div 2.11.4

This division applies to—
(a) a proceeding started by originating claim; and
(b) a counterclaim, or third-party notice, made in a proceeding
started by originating claim.
Note 1 A proceeding incorrectly started by originating application is taken to be
a proceeding started by originating claim if the court orders that the
proceeding continue as if started by originating claim (see r 39).
Note 2 This division applies to a counterclaim against a person not a party to the
original proceeding as if it were a proceeding started by originating claim
(see r 462 (4) (a) and (5)).
Note 3 This division applies to a notice including a subsequent party as if the
notice were a third-party notice (see r 322 (Third-party notice—fourth
and subsequent parties)

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Chapter 2 Civil proceedings generally
Part 2.11 Resolving proceedings early
Division 2.11.4 Default by defendant—partial defence
Rule 1137

1137 When is a defendant in default—partial defence

(1) A defendant is in default in relation to a part of a plaintiff’s claim for
relief (the undefended part of the claim) if—
(a) the defendant files a defence but not to the undefended part of
the claim; and
(b) the undefended part of the claim is a separate cause of action or
is severable from the rest of the claim; and
(c) the court gives leave to the plaintiff to enter judgment against
the defendant for the undefended part of the claim.
Note Pt 6.2 (Applications in proceedings) applies to an application for leave.

(2) However, a defendant is not in default in relation to an undefended

part of the claim if—
(a) for a proceeding started by originating claim—
(i) the proceeding, or the undefended part of the claim, is
stayed under rule 1102 (Stay of debt etc proceeding on
payment of amount sought); or
(ii) the defendant files a statement under rule 1104 (Judgment
on acknowledgment of debt or liquidated demand) in
relation to the undefended part of the claim; or
(iii) the defendant files a defence to the undefended part of the
claim after the time required by rule 102 (Notice of
intention to respond or defence—filing and service) or any
further period agreed between the relevant parties or
allowed by the court, but before a default judgment is
entered against the defendant in relation to the undefended
part of the claim; or

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 Civil proceedings generally Chapter 2
Resolving proceedings early Part 2.11
Default by defendant—partial defence Division 2.11.4
Rule 1138

(b) for a counterclaim—the defendant to the counterclaim files an

answer to the undefended part of the counterclaim after the time
required by rule 466 (3) (Counterclaim—answer to) or any
further period agreed between the relevant parties or allowed by
the court, but before a default judgment is entered against the
defendant to the counterclaim in relation to the undefended part
of the claim; or
(c) for a third-party notice—the third party files a defence after the
time required by rule 102 or any further period agreed between
the relevant parties or allowed by the court, but before a default
judgment is entered against the third party in relation to the
undefended part of the claim.
Note Rule 6351 (Time—extending and shortening by court order) provides for
the extending of time by the court.

1138 Default judgment—partial defence

(1) If a defendant is in default in relation to the undefended part of the
claim, the plaintiff may—
(a) apply to the court for judgment to be entered under this division
against the defendant in relation to the undefended part of the
claim; and
(b) carry on the proceeding against—
(i) the defendant in relation to the rest of the proceeding; and
(ii) any other party to the proceeding.
(2) If rule 1126 (Default judgment—other claims) applies in relation to
the application, the application must be accompanied by the relevant
affidavits.
Note 1 Rule 1126 may be applied to the undefended part of the claim by r 1139.
Note 2 Pt 6.2 (Applications in proceedings) applies to the application.
Note 3 For the meaning of relevant affidavits, see r 1119 (as applied by r 1139).

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Chapter 2 Civil proceedings generally
Part 2.11 Resolving proceedings early
Division 2.11.4 Default by defendant—partial defence
Rule 1139

(3) If rule 1126 does not apply in relation to the application, the
application is made by filing a draft judgment accompanied by the
relevant affidavits.
(4) Part 6.2 (Applications in proceedings) does not apply to an
application under subrule (3).
(5) The draft judgment and relevant affidavits mentioned in subrule (3)
need not be served on anyone unless the court otherwise orders on its
own initiative.
(6) The court may enter judgment under this division in favour of the
plaintiff in relation to the undefended part of the claim without a
hearing.
(7) Subrule (2) does not apply to the undefended part of the claim if
rule 1126 would apply to the undefended part of the claim if it were
a separate claim for relief.

1139 Default judgment—application of div 2.11.3

(1) Division 2.11.3 (other than a non-applied rule) applies to the
undefended part of the claim as if it were a separate claim for relief.
(2) In this rule:
non-applied rule means any of the following rules:
• rule 1116 (Application—div 2.11.3)
• rule 1117 (When is a defendant in default—generally)
• rule 1118 (Default judgment—generally)
• rule 1121 (Default judgment for debt or liquidated demand—
assessment of costs)
• rule 1127 (Default judgment—costs only).
(3) If the court enters judgment for the plaintiff against a defendant under
this division, it must not make an order for costs in relation to the
undefended part of the claim until judgment is entered on the
defended part of the claim.

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 Civil proceedings generally Chapter 2
Resolving proceedings early Part 2.11
Summary judgment Division 2.11.5
Rule 1145

Division 2.11.5 Summary judgment

1145 Application—div 2.11.5
(1) This division applies to—
(a) a proceeding started by originating claim; and
(b) a counterclaim, or third-party notice, made in a proceeding
started by originating claim.
Note A proceeding incorrectly started by originating application is taken to be
a proceeding started by originating claim if the court orders that the
proceeding continue as if started by originating claim (see r 39).

(2) However, despite rule 39 (3) (Proceeding incorrectly started by

originating application), this division applies to a proceeding started
by an originating application only if the court orders the plaintiff to
file and serve a statement of claim.

1146 Summary judgment—for plaintiff

(1) The plaintiff may, at any time after a defendant files a notice of
intention to respond or defence, apply to the court for summary
judgment against the defendant.
Note Pt 6.2 (Applications in proceedings) applies to an application under this
rule.

(2) The court may give judgment for the plaintiff against the defendant
for all or a part of the plaintiff’s claim for relief, unless satisfied that—
(a) the defendant has a good defence to the claim for relief on the
merits; or
(b) sufficient facts are disclosed to entitle the defendant to defend
the claim for relief generally.
(3) Without limiting subrule (2), the court may give judgment for the
plaintiff for damages to be assessed.

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Chapter 2 Civil proceedings generally
Part 2.11 Resolving proceedings early
Division 2.11.5 Summary judgment
Rule 1147

(4) The court may make any other order it considers appropriate.
Examples
1 The court may give the defendant leave to defend on conditions.
2 The court may order the defendant to pay an amount into court.

(5) If the plaintiff’s claim is for the return of a particular goods (whether
or not the claim includes a claim for hire or damages for detention),
the court may make an order for the return of the goods to the plaintiff
without giving the defendant the option of keeping the goods and
paying the value of the goods.
Note For the enforcement of the order, see r 2441 (Enforcement—orders for
return of goods etc).

(6) In this rule:

damages includes the value of goods.

1147 Summary judgment—for defendant

(1) A defendant may apply to the court for summary judgment against a
plaintiff at any time after filing a notice of intention to respond or
defence.
Note Pt 6.2 (Applications in proceedings) applies to an application under this
rule.

(2) The court may give judgment for the defendant against the plaintiff
for the plaintiff’s claim for relief (or part of it) if satisfied—
(a) that the claim (or part of it) is frivolous or vexatious; or
(b) that there is a good defence to the claim (or part of it) on the
merits; or
(c) that the proceeding should be finally disposed of summarily or
without pleadings.
(3) The court may make any other order it considers appropriate.
Example
stay the proceeding

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 Civil proceedings generally Chapter 2
Resolving proceedings early Part 2.11
Summary judgment Division 2.11.5
Rule 1148

1148 Claims not disposed of by summary disposal

(1) If the giving of judgment or the making of orders under this division
does not dispose of all claims for relief in issue in a proceeding, the
giving of judgment or making of the orders does not prevent the
continuation of any part of the proceeding not disposed of.
(2) A second or later application under this division may be made with
the court’s leave.

1149 Evidence in summary judgment proceedings

(1) Evidence must be given by affidavit in support of an application
under this division unless the court gives leave.
Note Pt 6.2 (Applications in proceedings) applies to an application for leave
under this rule.

(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 division who intends to rely on a
document must—
(a) annex or 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 division may not be cross-examined without the court’s leave.

1150 Summary judgment applications—filing and service

(1) A party applying for judgment under this division against another
party must file and serve the other party with the following documents
at least 8 days before the return date for the application:
(a) the application;

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Chapter 2 Civil proceedings generally
Part 2.11 Resolving proceedings early
Division 2.11.5 Summary judgment
Rule 1151

(b) a stamped copy of each affidavit on which the party intends to

rely.
Note Return date for an application is defined in the dictionary.

(2) At least 4 days before the return date, the other party must file and
serve on the party a stamped copy of any affidavit on which the other
party intends to rely.
(3) At least 2 days before the return date, the party must file and serve on
the other party a stamped copy of any affidavit in reply to the other
party’s affidavit on which the party intends to rely.
(4) This rule applies despite anything in rule 6008 (Application in
proceeding—filing and service).

1151 Summary judgment applications—directions etc

(1) This rule applies if—
(a) the court dismisses an application for judgment under this
division; or
(b) a judgment under this division does not dispose of all claims for
relief in a proceeding.
(2) The court may give directions about the future conduct of the
proceeding.
Note 1 Pt 6.2 (Applications in proceedings) applies to an application for
directions.
Note 2 The court has a general power to make directions about the conduct of a
proceeding (see r 1401 (Directions generally)).

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 Civil proceedings generally Chapter 2
Resolving proceedings early Part 2.11
Summary judgment Division 2.11.5
Rule 1152

1152 Summary judgment applications—costs

(1) If it appears to the court that a party who applied for judgment under
this division was or ought reasonably to have been aware that a
respondent to the application 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 on an indemnity basis.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(2) This rule does not limit the court’s powers in relation to costs.

1153 Summary judgment—stay of enforcement

The court may order a stay of the enforcement of a judgment given
under this division for the time it considers appropriate.
Note 1 Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.
Note 2 Rule 6901 (Orders may be made on conditions) provides that the court
may make an order under these rules on any conditions it considers
appropriate.

1154 Summary judgment—relief 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
division as if the judgment had been given after a trial.

1155 Summary judgment—setting aside

The court may amend or set aside a judgment given on an application
under this division against a party who did not appear at the hearing
of the application.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

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Chapter 2 Civil proceedings generally
Part 2.11 Resolving proceedings early
Division 2.11.6 Discontinuance and withdrawal
Rule 1160

Division 2.11.6 Discontinuance and withdrawal

1160 Discontinuance or withdrawal by plaintiff
(1) A plaintiff may discontinue a proceeding, or withdraw a part of it, at
any time before the court sets a hearing date for the proceeding.
(2) A plaintiff may discontinue a proceeding, or withdraw part of it, at
any other time only with the court’s leave or the agreement of the
other active parties.
Note Pt 6.2 (Applications in proceedings) applies to an application for leave
under this rule.

(3) Also, if there is more than 1 plaintiff, or a counterclaim against a

plaintiff, a plaintiff may only discontinue or withdraw with the court’s
leave or the agreement of the other active parties.
(4) A plaintiff may discontinue against 1 or more defendants without
discontinuing against other defendants.
(5) Each party who agrees to a proceeding being discontinued, or part of
it being withdrawn, must agree in writing.

1161 Discontinuance or withdrawal of counterclaim by

defendant
A defendant may discontinue a counterclaim, or withdraw part of it—
(a) before being served with the plaintiff’s answer to the
counterclaim; or
(b) after being served with the plaintiff’s answer to the
counterclaim—only with the court’s leave or the agreement of
the other active parties.
Note Pt 6.2 (Applications in proceedings) applies to an application for leave
under this rule.

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 Civil proceedings generally Chapter 2
Resolving proceedings early Part 2.11
Discontinuance and withdrawal Division 2.11.6
Rule 1162

1162 Withdrawal of notice of intention to respond

A party may withdraw the party’s notice of intention to respond at
any time with the court’s leave or the agreement of the other parties.
Note Pt 6.2 (Applications in proceedings) applies to an application for leave
under this rule.

1163 Costs of discontinuance or withdrawal

(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 when the notice of discontinuance or withdrawal is
served on the party; and
(b) the costs of another party or parties caused by the discontinuance
or withdrawal up to when the notice of discontinuance or
withdrawal is served on the party.
(2) If a party discontinues or withdraws with the court’s leave, the court
may make the order for costs it considers appropriate.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

1164 Withdrawal of defence or further pleading

(1) A party may withdraw all or part of the answer to a counterclaim.
(2) A defendant may withdraw all or part of the defence.
(3) For a proceeding started by originating application, a defendant may
withdraw all or part of an affidavit.
(4) However, this rule does not allow a party to withdraw an admission
or another matter operating for the benefit of another active party
without the other party’s agreement or the court’s leave.
Note Pt 6.2 (Applications in proceedings) applies to an application for leave.

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Chapter 2 Civil proceedings generally
Part 2.11 Resolving proceedings early
Division 2.11.6 Discontinuance and withdrawal
Rule 1165

1165 Notice of discontinuance or withdrawal

(1) A discontinuance or withdrawal for which the court’s leave is not
required may be made by filing a notice of discontinuance or
withdrawal and serving a stamped copy of the notice on the other
active parties to the proceeding.
Note 1 See approved form 2.37 (Notice of discontinuance or withdrawal)
AF2006-282.
Note 2 A party may withdraw an admission made in a pleading only with the
court’s leave (see r 492 (Admissions—withdrawal)).

(2) A discontinuance or withdrawal for which the court’s leave is

required is made by the order giving leave and a notice of
discontinuance or withdrawal is not required.

1166 Discontinuance or withdrawal by party representing

someone else etc
(1) If a party represents someone else in a proceeding, the party may
discontinue the proceeding, or withdraw part of it, only with the
court’s leave.
Note Pt 6.2 (Applications in proceedings) applies to an application for leave.

(2) If a party does not represent someone else in a proceeding, and the
party discontinues or withdraws, the party (or the party’s solicitor)
must certify in the notice of discontinuance or withdrawal that the
party does not represent someone else in the proceeding.

1167 Discontinuance or withdrawal—subsequent proceeding

(1) A discontinuance or withdrawal under this division is not a defence
to another proceeding on the same or substantially the same ground.
(2) Subrule (1) is subject to the conditions of any agreement to the
discontinuance or withdrawal or any leave to discontinue or
withdraw.

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 Civil proceedings generally Chapter 2
Resolving proceedings early Part 2.11
Mediation and neutral evaluation Division 2.11.7
Rule 1168

(3) 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 respond or defence had not been filed.

1168 Consolidated 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.

1169 Stay pending payment of costs

(1) This rule applies if, because of a discontinuance or withdrawal under
this division, 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.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

Division 2.11.7 Mediation and neutral evaluation

1175 Purpose—div 2.11.7
This division does not prevent the parties to a proceeding from
agreeing to, and arranging for, mediation or neutral evaluation of any
matter otherwise than under this division.

1176 Definitions—div 2.11.7

(1) For this division, mediation is a structured negotiation process in
which the mediator, as a neutral and independent party, assists the
parties to a dispute to achieve their own resolution of the dispute.
(2) For this division, mediation session means a meeting arranged for the
mediation of a matter under this division.

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Chapter 2 Civil proceedings generally
Part 2.11 Resolving proceedings early
Division 2.11.7 Mediation and neutral evaluation
Rule 1177

(3) For this division, neutral evaluation is a process of evaluation of a

dispute in which the evaluator seeks to identify and reduce the issues
of fact and law that are in dispute.
(4) The evaluator’s role includes assessing the relative strengths and
weaknesses of each party’s case and offering an opinion about the
likely outcome of the proceeding, including any likely findings of
liability or the award of damages.
(5) For this division, neutral evaluation session means a meeting
arranged for the neutral evaluation of a matter under this division.

1177 Mediation—appointment of mediator

(1) A person can be a mediator if the person—
(a) is an accredited mediator; and
(b) is appointed by the court as a mediator.
(2) The Legislation Act, part 19.3 (Appointments) does not apply to the
appointment of a mediator under this rule.
(3) In this rule:
accredited mediator—see the Act, section 52A.

1178 Neutral evaluation—appointment of evaluator

(1) The following people can be an evaluator:
(a) the registrar of the court;
(b) someone else that the court considers has the skills and
qualifications to be an evaluator and appoints as an evaluator.
(2) The Legislation Act, part 19.3 (Appointments) does not apply to the
appointment of an evaluator under this rule.

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 Civil proceedings generally Chapter 2
Resolving proceedings early Part 2.11
Mediation and neutral evaluation Division 2.11.7
Rule 1179

1179 Mediation or neutral evaluation—referral by court

(1) The court may, by order, refer a proceeding, or any part of a
proceeding, for mediation or neutral evaluation.
(2) The court may make an order on application by a party to the
proceeding or on its own initiative.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(3) If the court makes an order under subrule (1) for mediation, the
mediation must be undertaken only by a mediator appointed by the
court.
(4) If the court makes an order under subrule (1) for neutral evaluation,
the neutral evaluation must be undertaken only by an evaluator
appointed by the court.

1180 Mediation or neutral evaluation—duty of parties to take

part
Each party to a proceeding, or part of a proceeding, referred for
mediation or neutral evaluation under rule 1179 has a duty to take
part, genuinely and constructively, in the mediation or neutral
evaluation.

1181 Mediation or neutral evaluation—costs

(1) The costs of a mediation or neutral evaluation are payable—
(a) by the parties to the proceeding, in the proportions they agree
among themselves; or
(b) if the court makes an order about the payment of the costs—by
1 or more of the parties, in the way stated in the order.
(2) In this rule:
costs includes costs incurred by the court or a party or someone else.

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Chapter 2 Civil proceedings generally
Part 2.11 Resolving proceedings early
Division 2.11.7 Mediation and neutral evaluation
Rule 1182

1182 Mediation or neutral evaluation—agreements and

arrangements arising from sessions
(1) The court may make orders to give effect to an agreement or
arrangement between the parties arising out of a mediation session or
neutral evaluation.
(2) This division does not affect the enforceability of any other
agreement or arrangement that may be made, whether or not arising
out of a mediation session or neutral evaluation, in relation to the
matters that are the subject of the mediation session or neutral
evaluation.
Note For provisions about privilege, secrecy and protection in relation to
mediators, see the Act, pt 5A.

1183 Neutral evaluation—privilege

(1) The same privilege in relation to defamation that exists for a
proceeding in the court, and a document in a proceeding, exists for—
(a) a neutral evaluation session; or
(b) a document or thing sent to or produced to an evaluator; or
(c) a document or thing sent to, or produced at, the court to enable
a neutral evaluation session to be arranged.
(2) However, the privilege under subrule (1) only extends to a publication
made—
(a) at a neutral evaluation session; or
(b) as provided by subrule (1) (b) or (c); or
(c) as provided in rule 1184.
(3) In this rule:
neutral evaluation session includes any steps taken while making
arrangements for the session or during the follow-up of a session.

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 Civil proceedings generally Chapter 2
Resolving proceedings early Part 2.11
Mediation and neutral evaluation Division 2.11.7
Rule 1184

1184 Evaluators—secrecy
An evaluator may disclose information obtained in relation to the
administration or enforcement of this division only in the following
circumstances:
(a) with the consent of the person who provided the information;
(b) for the administration or enforcement of this division;
(c) if there are reasonable grounds to believe the disclosure is
necessary to prevent or reduce the danger of death or injury to
anyone or damage to any property;
(d) if the disclosure—
(i) is reasonably required for the referral to an entity of any
party to a neutral evaluation session; and
(ii) is made to assist the resolution of a dispute between the
parties, or assist the parties in any other way; and
(iii) is made with the consent of the parties to the neutral
evaluation session;
(e) in accordance with a requirement imposed under a territory law
or a law of the Commonwealth (other than a requirement
imposed by a subpoena or other compulsory process).
Note A territory law includes these rules (see Legislation Act, s 98).

1185 Evaluators—protection from liability

An evaluator is not personally liable for anything done or omitted to
be done honestly for a neutral evaluation session under this division.

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Chapter 2 Civil proceedings generally
Part 2.12 Expert evidence
Division 2.12.1 Expert evidence generally
Rule 1200

Part 2.12 Expert evidence

Note to pt 2.12
Pt 6.10 contains provisions about evidence generally.

Division 2.12.1 Expert evidence generally

1200 Purposes—pt 2.12
The purposes of this part are as follows:
(a) to ensure the court has control over the giving of expert
evidence;
(b) to restrict expert evidence in a proceeding to that which is
reasonably necessary to resolve the proceeding;
(c) to avoid unnecessary costs associated with parties retaining
different experts;
(d) to ensure expert witnesses are bound by a code of conduct;
(e) if practicable and without compromising the interests of
justice—to enable expert evidence to be given on an issue in a
proceeding by a single expert agreed to by the parties or
appointed by the court;
(f) if necessary to ensure a fair trial of a proceeding—to allow for
2 or more experts to give evidence on an issue in the proceeding.

1201 Meaning of code of conduct—pt 2.12

In this part:
code of conduct means the expert witness code of conduct in
schedule 1.

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 Civil proceedings generally Chapter 2
Expert evidence Part 2.12
Expert evidence generally Division 2.12.1
Rule 1202

1202 Meaning of expert, expert witness and expert report

(1) In these rules:
expert, in relation to a proceeding, means a person who—
(a) has specialised knowledge about matters relevant to an issue
arising in the proceeding based on the person’s training, study
or experience; and
(b) would, if called as a witness at the trial of the proceeding, be
qualified to give opinion evidence as an expert witness in
relation to the issue.
expert witness, in relation to a proceeding, means an expert appointed
or engaged to do either or both of the following:
(a) to provide a report about the expert’s opinion for use as evidence
in the proceeding;
(b) to give opinion evidence in the proceeding.
(2) In these rules, an expert report, in relation to a proceeding, is a written
statement by an expert (whether or not an expert witness in the
proceeding), if the statement complies with the following
requirements:
(a) the statement sets out the expert’s opinion and the facts on which
the opinion is formed;
(b) the statement includes the substance of the expert’s evidence
that the party serving the statement intends to adduce in
evidence in chief at the trial of the proceeding.
(3) However, if the expert provides 2 or more written statements for a
party for the proceeding, each of the statements is an expert report if
the statements, taken together, comply with subrule (2) (a) and (b).

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Chapter 2 Civil proceedings generally
Part 2.12 Expert evidence
Division 2.12.1 Expert evidence generally
Rule 1203

1203 Expert witnesses to agree to be bound by code of

conduct
(1) If a party to a proceeding engages an expert witness, the party must
give the expert witness a copy of the code of conduct as soon as
practicable after the expert witness is engaged.
(2) An expert witness must not give oral evidence unless—
(a) the expert witness has acknowledged in writing, whether in a
report relating to the proposed evidence or otherwise in relation
to the proceeding, that the expert witness has read the code of
conduct and agrees to be bound by it; and
(b) a copy of the acknowledgment has been served on all active
parties affected by the evidence.
(3) If an expert report does not contain an acknowledgment by the expert
witness who prepared the report that the expert witness has read the
code of conduct and agrees to be bound by it, service of the expert
report by the party who engaged the expert witness is not valid
service.
(4) This rule does not apply to a doctor who has treated the plaintiff.

1204 Expert witness—immunity

An expert witness has the same protection and immunity for the
contents of an expert report prepared by the expert witness that is
dealt with as required by these rules as the expert witness could claim
if the contents of the report were given orally at the trial of the
proceeding for which the report is prepared.

1205 Court may give directions in relation to expert evidence

(1) The court may, on its own initiative or on a party’s application, give
1 or more of the following directions in relation to expert evidence:
(a) a direction about the time for service of an expert report;

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 Civil proceedings generally Chapter 2
Expert evidence Part 2.12
Expert evidence generally Division 2.12.1
Rule 1205

(b) a direction that expert evidence—

(i) may not be adduced on an issue; or
(ii) may not be adduced on an issue without the leave of the
court; or
(iii) may be adduced only in relation to a stated issue;
(c) a direction limiting the number of expert witnesses who may be
called to give evidence on an issue;
(d) a direction providing for the appointment and instruction of
1 expert witness for the parties in relation to a stated issue;
(e) a direction providing for the appointment and instruction of a
court-appointed expert witness in relation to a stated issue;
(f) a direction requiring an expert witness who has prepared 2 or
more expert reports in relation to a proceeding to prepare a
single report that reflects the witness’s evidence in chief;
(g) any other direction in relation to expert evidence that the court
considers appropriate.
(2) If the court gives a direction under subrule (1) (e), it may also give a
direction about the payment of costs, including—
(a) the remuneration of the court-appointed expert witness; and
(b) by which party or parties, and in what proportion, the
remuneration is to be paid.
(3) The court may—
(a) order a party to give security for the remuneration of the
court-appointed expert witness; and
(b) order a stay of the proceeding until the security is given.

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Chapter 2 Civil proceedings generally
Part 2.12 Expert evidence
Division 2.12.2 Multiple expert witnesses for same issue
Rule 1210

Division 2.12.2 Multiple expert witnesses for same

issue
1210 Application—div 2.12.2
This division applies if 2 or more parties to a civil proceeding call, or
intend to call, expert witnesses to give opinion evidence about the
same, or a similar, issue at the trial of the proceeding.

1211 Court may direct experts to meet etc

(1) The court may, on its own initiative or on a party’s application, give
1 or more of the following directions:
(a) a direction that the expert witnesses meet—
(i) to identify the matters on which they agree; and
(ii) to identify the matters on which they disagree and the
reasons why; and
(iii) to try to resolve any disagreement;
(b) a direction that the expert witnesses produce for the court’s use
a document identifying—
(i) the matters on which they agree; and
(ii) the matters on which they disagree; and
(iii) the reasons for any failure to reach agreement on any
matter;
(c) a direction that—
(i) the expert witnesses give evidence at the trial after all or
certain factual evidence relevant to an issue has been given;
and

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 Civil proceedings generally Chapter 2
Expert evidence Part 2.12
Multiple expert witnesses for same issue Division 2.12.2
Rule 1211

(ii) each party intending to call 1 or more expert witnesses

close the party’s case in relation to an issue, subject only to
presenting the evidence of the expert witnesses later in the
trial;
(d) a direction that, after all or certain factual evidence has been
given, a party who called an expert witness file and serve on
each other active party an affidavit or statement by the expert
witness stating—
(i) whether the expert witness adheres to any opinion given
earlier; or
(ii) whether, in light of factual evidence given at the trial, the
expert witness wishes to modify any opinion given earlier;
(e) a direction that—
(i) each expert witness be sworn one immediately after
another; and
(ii) when giving evidence, an expert witness occupy a position
in the courtroom (not necessarily in the witness box) that
is appropriate to the giving of evidence;
(f) a direction that each expert witness give an oral explanation of
his or her opinion, or opinions, on a question;
(g) a direction that each expert witness give his or her opinion about
the opinion, or opinions, given by another expert witness;
(h) a direction that the expert witnesses be cross-examined, or
re-examined, in a certain way or sequence, including, for
example, by putting to each expert witness, in turn, each
question relevant to one subject or issue at a time, until the cross-
examination, or re-examination, of all the witnesses is finished;

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Chapter 2 Civil proceedings generally
Part 2.12 Expert evidence
Division 2.12.3 Expert reports
Rule 1240

(i) a direction that any expert witness giving evidence in

accordance with a direction under paragraph (e) be allowed to
ask questions of any other expert witness who is also giving
evidence in accordance with a direction under that paragraph;
(j) any other directions about giving evidence in accordance with a
direction under paragraph (e) that the court considers
appropriate.
Note Pt 6.2 (Applications in proceedings) applies to an application for a
direction or leave under this rule.

(2) This rule does not limit the directions that the court may give on its
own initiative or on a party’s application.
(3) If the court directs expert witnesses to meet under subrule (1) (a), it
may—
(a) set the agenda; and
(b) state the matters the expert witnesses must discuss; and
(c) direct whether or not legal representatives may be present; and
(d) give directions about the form of any report to be produced to
give effect to a direction under subrule (1) (b); and
(e) give any other directions it considers appropriate.
(4) If expert witnesses have met and produced a document identifying the
matters on which they agree, a party affected must not adduce expert
evidence inconsistent with a matter agreed unless the court gives
leave for the evidence to be adduced.

Division 2.12.3 Expert reports

1240 Application—div 2.12.3
This division applies subject to any direction given by the court under
rule 1205 or rule 1211.

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 Civil proceedings generally Chapter 2
Expert evidence Part 2.12
Expert reports Division 2.12.3
Rule 1241

1241 Service of expert reports

(1) Each party must serve on each other active party to a proceeding a
copy of each expert report obtained by the party in accordance with
any direction made by the court.
(2) If—
(a) a party obtains an expert report after serving reports under
subrule (1); and
(b) either—
(i) the report is only responding to another report served under
this rule; or
(ii) the report updates another report served under this rule;
the party must serve a copy of the report on each other active party
not later than 3 days after the day the party obtains the report.
(3) An expert report must not be tendered, and is not admissible, in the
proceeding unless it has been served in accordance with this rule,
except with—
(a) the court’s leave; or
(b) the agreement of all active parties to the proceeding.
Note Pt 6.2 (Applications in proceedings) applies to an application for leave or
an order under this rule.

(4) The court must not give leave under subrule (3) (a) unless satisfied
that—
(a) there are exceptional circumstances that justify giving leave; or
(b) the expert report only updates an earlier version of an expert
report that has been served in accordance with this rule.
(5) This rule applies subject to any order of the court.

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Chapter 2 Civil proceedings generally
Part 2.12 Expert evidence
Division 2.12.3 Expert reports
Rule 1242

1242 Supplementary expert reports

(1) If an expert witness changes in a material way an opinion in an expert
report that has been served, the expert witness must provide a
supplementary expert report (a supplementary report) to the party
who engaged the expert witness (the engaging party) stating the
change and the reason for it.
(2) The expert witness may provide the engaging party with other
supplementary reports (also a supplementary report).
(3) If an expert witness provides a supplementary report under this rule,
the engaging party, and any other party having the same interest as
the engaging party, must not use an earlier expert report (including an
earlier supplementary report) on an issue to which the earlier report
relates unless the engaging party has served a copy of the
supplementary report on all active parties on whom the engaging
party served the earlier report.

1243 Expert evidence to be covered by expert report

Except with the court’s leave or as otherwise agreed by all the active
parties to a proceeding, the oral evidence in chief of an expert is not
admissible unless an expert report served in accordance with
rule 1241 (Service of expert reports) contains the substance of the
matters sought to be adduced in evidence.
Note Pt 6.2 (Applications in proceedings) applies to an application for leave.

1244 Expert reports admissible as evidence of opinion etc

An expert report served under rule 1241 (Service of expert reports) is
admissible as evidence of—
(a) the author’s opinion; and
(b) if the author’s direct oral evidence of a fact on which the opinion
was formed would be admissible as evidence of that fact without
further evidence (whether oral or otherwise)—that fact.

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 Civil proceedings generally Chapter 2
Expert evidence Part 2.12
Expert reports Division 2.12.3
Rule 1245

1245 Requiring attendance of expert for cross-examination etc

(1) This rule applies if an expert report is served under rule 1241 (Service
of expert reports) by a party to a proceeding.
(2) Another party to the proceeding may, by notice served on the party
who served the expert report, require the expert who prepared the
report to attend the trial of the proceeding to be cross-examined on
the report.
(3) The notice must be served at the listing hearing or no later than
49 days before the date set for the trial (whichever is the earlier).

1246 Tender of expert report

(1) A party to a proceeding who is served with an expert report under
rule 1241 (Service of expert reports) may tender the report.
(2) If the expert who prepared the report is required under rule 1245
(Requiring attendance of expert for cross-examination etc) to attend
the trial of the proceeding, the report may not be tendered or
otherwise used in the proceeding by any party unless—
(a) the expert attends as required to be cross-examined on the
report; or
(b) the expert has died; or
(c) the court gives leave.
Note Pt 6.2 (Applications in proceedings) applies to an application for leave.

(3) If the expert is cross-examined on the report, the party using the report
may re-examine the expert.

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Chapter 2 Civil proceedings generally
Part 2.13 Pre-trial procedures

Rule 1301

Part 2.13 Pre-trial procedures

1301 Application—pt 2.13

This part applies to a proceeding started by originating claim.
Note A proceeding incorrectly started by originating application is taken to be
a proceeding started by originating claim if the court orders that the
proceeding continue as if started by originating claim (see r 39).

1304 Statement of particulars before trial—personal injury

claims
(1) This rule applies to a proceeding in which a claim for damages for
personal injury is made, other than a claim under the Civil Law
(Wrongs) Act 2002, part 3.1 (Wrongful act or omission causing
death).
(2) The plaintiff must file, and serve on each active party to the
proceeding, a statement (a statement of particulars)—
(a) 14 days before the listing hearing for the proceeding; or
(b) in accordance with any direction made by the court.
(3) The statement of particulars must set out the following particulars of
the plaintiff’s claim:
(a) particulars of injuries received;
(b) particulars of disabilities suffered since the accident giving rise
to the claim and any continuing disabilities,
(c) particulars of out-of-pocket expenses;

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 Civil proceedings generally Chapter 2
Pre-trial procedures Part 2.13

Rule 1304

(d) if a claim is made for loss of earnings—

(i) the name and address of each employer of the plaintiff for
the year before the accident giving rise to the claim,
together with details of the periods of employment,
capacity in which the plaintiff was employed, and the
plaintiff’s earnings during each period of employment; and
(ii) the name and address of each employer of the plaintiff
since the accident giving rise to the claim, together with
details of the periods of employment, capacity in which the
plaintiff was employed, and the plaintiff’s earnings during
each period of employment; and
(iii) the amount claimed for loss of earnings to the date of the
statement of particulars worked out by comparing the
plaintiff’s earnings since the accident with the earnings the
plaintiff claims the plaintiff would have earned had the
accident not happened; and
(iv) if the plaintiff was self-employed at any time in the year
before, or since, the accident—the plaintiff’s earnings for
the year before, and since, the accident, together with all
additional particulars necessary to disclose the way the
claim for loss of earning capacity is worked out;
(e) particulars of any claimed future loss of earning capacity and
future economic loss;
(f) if a claim is made for domestic assistance or attendant care—
particulars of the claim.

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Chapter 2 Civil proceedings generally
Part 2.13 Pre-trial procedures

Rule 1304

(4) In working out for subrule (3) (d) (iii) the earnings the plaintiff claims
the plaintiff would have earned had the accident not happened, the
plaintiff must, if appropriate, set out—
(a) particulars of—
(i) the earnings of employees engaged in employment similar
to the employment that the plaintiff claims the plaintiff
would have engaged in had the accident not happened; and
(ii) the identity of those employees; or
(b) particulars of—
(i) payments that the plaintiff would have received under an
award or industrial agreement applying to the employment
that the plaintiff claims the plaintiff would have engaged
in had the accident not happened; and
(ii) the identity of the award or agreement.
(5) The plaintiff must serve, with the statement of particulars, a copy of
all documents available to the plaintiff in support of any claim for
special damages or economic loss, including the following:
(a) hospital, medical or similar accounts and receipts;
(b) letters from any workers compensation insurer stating amounts
paid for the plaintiff for hospital, medical, ambulance or similar
expenses;
(c) a letter from the plaintiff’s employer or employers immediately
before the accident, giving particulars of—
(i) the dates when the plaintiff was absent from work because
of the accident; and
(ii) any earnings (including overtime) lost by the plaintiff for
the absences from work; and
(iii) any change in the plaintiff’s classification and duties, and
any earnings after the accident; and

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 Civil proceedings generally Chapter 2
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Rule 1305

(iv) if the plaintiff’s employment has been terminated—the

date of termination and the reason for the termination;
(d) copies of the plaintiff’s group certificates and income tax returns
for the 2 financial years immediately before the financial year in
which the accident happened, together with any income tax
returns lodged by the plaintiff since the accident;
(e) if the plaintiff was self-employed at any time in the year before,
or since, the accident—accountants’ reports and other business
records that the plaintiff intends to rely on to prove loss of
earnings;
(f) reports, award rates and correspondence relied on to support any
claim for domestic assistance or attendant care.
(6) If any document, or part of a document, required to be served under
subrule (5) cannot be served, the plaintiff must serve, with the
statement of particulars, a statement of the reasons why the document
cannot be served.
(7) In this rule:
accident includes incident.
earnings means gross earnings per week or another appropriate
period and net earnings after taxation per week or another appropriate
period.

1305 Statement of particulars before trial—compensation to

relatives in death claims
(1) This rule applies to a proceeding in which a claim for damages for
personal injury is made under the Civil Law (Wrongs) Act 2002,
part 3.1 (Wrongful act or omission causing death).

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Chapter 2 Civil proceedings generally
Part 2.13 Pre-trial procedures

Rule 1305

(2) The plaintiff must file, and serve on each other active party to the
proceeding, in relation to each person for whose benefit the
proceeding is brought, a statement (a statement of particulars)—
(a) 14 days before the listing hearing for the proceeding; or
(b) in accordance with any direction made by the court.
(3) The statement of particulars in relation to each person must set out
the following particulars:
(a) the person’s name, address, relationship to the deceased person
the subject of the proceeding;
(b) if relevant, whether the person’s dependency on the deceased
person, or reliance on services provided by the deceased person,
is claimed to have been total or partial, the circumstances in
which the person received support or services from the deceased
person, and the amount of the support or services for the year
ending on the day the person died.
(4) The plaintiff must serve with the statement of particulars, in relation
to each person for whose benefit the proceeding is brought, a copy of
the following documents:
(a) if relevant, a copy or extract of the birth certificate of the person
and, if the person has been married, a copy of the person’s
marriage certificate;
(b) a letter from the deceased person’s employer immediately
before the accident, giving details of the deceased person’s
earnings and prospects of promotion at the date of the person’s
death;
(c) copies of the deceased person’s income tax returns for the
2 financial years immediately before the financial year in which
the person died;

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 Civil proceedings generally Chapter 2
Pre-trial procedures Part 2.13

Rule 1311

(d) copies of any bank statements, financial records or other

documents on which the plaintiff intends to rely to prove the
support or other benefits given to the person by the deceased
person for a period of not less than 1 year ending on the day the
person died;
(e) copies of all documents, including accounts and receipts, in
support of any claim for funeral expenses, medical or hospital
expenses or any other expenses relating to the person’s death;
(f) copies of documents proving the net value of the deceased
person’s estate.
(5) If any document, or part of a document, required to be served under
subrule (4) cannot be served, the plaintiff must serve, with the
statement of particulars, a statement of the reasons why the document
cannot be served.

1311 Expedited trial

(1) A party to a proceeding may apply to the court for an expedited trial.
Note Pt 6.2 (Applications in proceedings) applies to the application.

(2) An application for an expedited trial must be supported by an affidavit

stating the following:
(a) the grounds for expediting the trial;
(b) the issues in dispute;
(c) the number of witnesses to be called and the nature of each
witness’s evidence;
(d) the estimated length of the trial;
(e) whether senior counsel or junior counsel is briefed in the
proceeding.
(3) The affidavit may include anything else the applicant considers
relevant to the application.

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Chapter 2 Civil proceedings generally
Part 2.13 Pre-trial procedures

Rule 1312

(4) The court may order that the trial be expedited if it is in the interests
of justice to expedite the trial.

1312 Court book

(1) If the court has set a date for the trial of a proceeding, the plaintiff
must, not later than 14 days before the trial date, file, and serve on
each other active party to the proceeding, a copy of the following
documents bound or stapled together (the court book):
(a) the originating process;
(b) each pleading in the proceeding;
Note Pleading is defined in the dictionary.

(c) any request made for further particulars of a party’s pleading,

and any answer to the request;
(d) any third-party notice;
Note Third-party notice includes a fourth-party notice and the notice
including any other further person and so on successively (see
r 322 (2) (c)).

(e) any notice claiming contribution or indemnity;

(f) any order in the proceeding to include a party;
(g) any affidavit to be used at the trial;
(h) if a statement of particulars is required to be filed under
rule 1304 (Statement of particulars before trial—personal injury
claims) or rule 1305 (Statement of particulars before trial—
compensation to relatives in death claims)—the statement of
particulars.
(2) If a document mentioned in subrule (1) has been amended, the
plaintiff must include in the court book only the most recent amended
version of the document.

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 Civil proceedings generally Chapter 2
Pre-trial procedures Part 2.13

Rule 1325

(3) The following documents must not be included in a court book unless
all the active parties to the proceeding agree:
(a) expert reports, including medical reports;
(b) answers to interrogatories.

1325 Listing hearing

At a listing hearing for a proceeding, the court may make the
directions it considers appropriate including in relation to—
(a) simplifying the issues in dispute; and
(b) limiting the number of witnesses or the issues to be covered by
witness evidence; and
(c) the filing and serving of expert reports; and
(d) the filing and serving of affidavit evidence; and
(e) the admission of facts or documents to avoid unnecessary proof;
and
(f) written submissions to the court on issues of law or issues of law
and fact; and
(g) the estimated length of the trial; and
(h) the possibility of the proceeding being settled before the trial;
and
(i) anything else that may assist the early resolution of the
proceeding.

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Chapter 2 Civil proceedings generally
Part 2.13 Pre-trial procedures

Rule 1326

1326 Special fixture

(1) At the listing hearing, a proceeding may be set down by the court for
trial as a special fixture if—
(a) for a proceeding in the Supreme Court—a party to the
proceeding or the court estimates the trial will be 5 days or
longer; or
(b) for a proceeding in the Magistrates Court—a party to the
proceeding or the court estimates the trial will be 3 days or
longer; or
(c) the court has already ordered that the trial be expedited or listed
as a special fixture.
(2) If a proceeding is set down for trial as a special fixture, the court
may—
(a) allocate a judicial officer (the trial judicial officer) for the trial;
and
(b) set a date for a directions hearing before—
(i) the trial judicial officer; or
(ii) if the trial judicial officer is a judge who is not a resident
judge—a resident judge or the associate judge (the
nominated judicial officer).
(3) If the court allocates a trial judicial officer for the trial, the trial
judicial officer or nominated judicial officer must—
(a) hear any application in the proceeding or application for
directions in the proceeding before the trial; and
(b) monitor compliance with any directions given in the proceeding.
Note Application in a proceeding is defined in r 6006.

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 Civil proceedings generally Chapter 2
Pre-trial procedures Part 2.13

Rule 1327

1327 Directions hearings and listing hearings—costs

Unless the court otherwise orders, costs incurred by a party to a
proceeding in relation to a directions hearing or listing hearing are
costs in the cause.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
otherwise ordering.

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Chapter 2 Civil proceedings generally
Part 2.14 Court supervision
Division 2.14.1 Directions
Rule 1400

Part 2.14 Court supervision

Division 2.14.1 Directions
1400 Directions—application
(1) A party to a proceeding may, at any time, apply to the court for
directions about the conduct of the proceeding.
Note Pt 6.2 (Applications in proceedings) applies to an application for
directions.

(2) A party to a proceeding may apply for directions either on an

application for directions or on an application for other relief.

1401 Directions generally

(1) The court may, at any stage of a proceeding, give any direction about
the conduct of the proceeding it considers appropriate, even though
the direction may be inconsistent with another provision of these
rules.
(2) The court may give a direction about the conduct of the proceeding
on application by a party or on its own initiative.
Note Pt 6.2 (Applications in proceedings) applies to an application for
directions.

(3) In deciding whether to give a direction under this rule, the interests of
justice are paramount.
(4) Without limiting subrule (1), the court may, at any time, do any of the
following in relation to a hearing of a proceeding:
(a) require copies of pleadings for use by the court before the
hearing;
(b) require the parties to define, in writing, the issues for decision
by the court;

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 Civil proceedings generally Chapter 2
Court supervision Part 2.14
Directions Division 2.14.1
Rule 1401

(c) set a timetable for the conduct of the hearing or any steps in the
proceeding;
(d) limit the time to be taken by the hearing;
(e) limit the time to be taken by a party in presenting the party’s
case;
(f) require Scott schedules to be filed;
(g) require evidence to be given by affidavit, orally or in some other
form;
(h) require the service or exchange of expert reports and the holding
of conferences of experts;
(i) limit the number of witnesses (including expert witnesses) a
party may call on a particular issue;
(j) limit the time to be taken in examining, cross-examining or re-
examining a witness;
(k) require the use of telephone or video conference facilities,
videotapes, film projection, computer and other equipment and
technology;
(l) require submissions to be made in the way the court directs, for
example, in writing, orally, or by a combination of written and
oral submission;
(m) limit the time to be taken in making an oral submission;
(n) limit the length of a written submission or affidavit;
(o) require the parties, before the hearing, to provide statements of
witnesses the parties intend to call;
(p) refer the proceeding to another judicial officer for further
directions;
(q) order that a counterclaim be heard separately from the hearing
for the proceeding in which the counterclaim is made;

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Chapter 2 Civil proceedings generally
Part 2.14 Court supervision
Division 2.14.1 Directions
Rule 1401

(r) order that the issues between the defendant who included a third
party and the third party be heard separately from the issues
between the plaintiff and the defendant;
(s) give directions about the order of evidence and addresses and
the conduct of the trial generally;
(t) give any other direction the court considers appropriate.
(5) In addition to the principle mentioned in subrule (3), in deciding
whether to give a direction of a kind mentioned in subrule (4), the
court may have regard to the following matters:
(a) that each party is entitled to a fair hearing;
(b) that the time allowed for taking a step in the proceeding or for
the hearing must be reasonable;
(c) the complexity or simplicity of the case;
(d) the importance of the issues and the case as a whole;
(e) the volume and character of the evidence to be led;
(f) the time expected to be taken by the hearing;
(g) the number of witnesses to be called by the parties;
(h) that each party must be given a reasonable opportunity to lead
evidence and cross-examine witnesses;
(i) the state of the court lists;
(j) any other relevant matter.
(6) If a direction under this rule is inconsistent with another provision of
these rules, the direction prevails to the extent of the inconsistency.
(7) The court may at any time amend or revoke a direction made under
this rule.

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 Civil proceedings generally Chapter 2
Court supervision Part 2.14
Directions Division 2.14.1
Rule 1402

(8) The court may amend or revoke a direction made under this rule on
application by a party or on its own initiative.
Note Pt 6.2 (Applications in proceedings) applies to an application to amend
or revoke a direction.

(9) The powers of the court under this rule are additional to any other
powers of the court under a territory law.
Note A territory law includes these rules (see Legislation Act, s 98).

1402 Proceeding already being managed by court

(1) If, under these rules, a particular judicial officer has been allocated to
manage a proceeding—
(a) the court may direct that all applications in relation to the
proceeding, or the hearing of the proceeding, be heard and
decided by the judicial officer; and
(b) the judicial officer may monitor the proceeding to ensure that
the parties comply with any directions given in the proceeding.
(2) The court may make a direction under this rule on application by a
party or on its own initiative.
Note Pt 6.2 (Applications in proceedings) applies to an application for a
direction under this rule.

(3) If, under these rules, a proceeding has been assigned to the docket of
a judge or the associate judge, the judge or associate judge assigned
the proceeding—
(a) must hear the proceeding and any application in relation to the
proceeding, unless the court otherwise orders; and
(b) may monitor the proceeding to ensure that the parties comply
with any directions given in the proceeding.

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Chapter 2 Civil proceedings generally
Part 2.14 Court supervision
Division 2.14.1 Directions
Rule 1403

1403 Decision in proceeding

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

1404 Failure to comply with direction etc

(1) This rule applies if a party—
(a) after receiving notice of a directions or listing hearing, in a
proceeding, does not attend the hearing; or
(b) fails to comply with a direction about the conduct of a
proceeding.
(2) The court may do any of the following:
(a) give the further directions it considers appropriate;
(b) dismiss the application or proceeding;
(c) make an order for costs for or against a party;
(d) adjourn the application or hearing;
(e) make another order dealing with the proceeding it considers
appropriate.
(3) Without limiting subrule (2), the court may consider, and give
directions in relation to, the following matters at a directions hearing:
(a) requests for particulars;
(b) filing further pleadings;
(c) amending pleadings;
(d) challenges to any pleading;
(e) discovery, either in full or limited to particular issues;
(f) interrogatories;
(g) alternative dispute resolution, including mediation;

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 Civil proceedings generally Chapter 2
Court supervision Part 2.14
Transfer of proceedings between courts Division 2.14.1A
Rule 1430

(h) statements of agreed facts;

(i) evidence by affidavit;
(j) service or exchange of expert reports.
Note The court has a general power to make directions about the conduct of a
proceeding (see r 1401 (Directions generally)).

(4) The court may act under this rule on application by a party or on its
own initiative.
Note Pt 6.2 (Applications in proceedings) applies to an application under this
rule.

(5) In deciding whether to dismiss the application or proceeding, the

court must have regard to the principle that the interests of justice are
paramount.

Division 2.14.1A Transfer of proceedings between

courts
1430 Transfer of proceeding from Supreme Court to
Magistrates Court—application
(1) The Supreme Court may, on application by a party to a proceeding
started in the Supreme Court or its own initiative, order that the
proceeding be transferred to the Magistrates Court.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(2) The Court may make an order under subsection (1) only if satisfied
that—
(a) the amount claimed (whether initially or as reduced by payment,
admitted set-off or otherwise) is not more than the amount for
which the Magistrates Court has jurisdiction to decide; and
(b) the proceeding could properly have been started in the
Magistrates Court; and

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Chapter 2 Civil proceedings generally
Part 2.14 Court supervision
Division 2.14.1A Transfer of proceedings between courts
Rule 1431

(c) the Court considers it just to do so.

1431 Transfer of proceeding from Supreme Court to

Magistrates Court—procedure
(1) This rule applies if the Supreme Court orders under rule 1430 that a
proceeding be transferred to the Magistrates Court.
(2) A party to the proceeding may file in the Magistrates Court a copy
of—
(a) the order; and
(b) each of the pleadings in the proceeding; and
(c) any other relevant documents filed in the Supreme Court.
(3) When the documents mentioned in subrule (2) are filed, the
proceeding—
(a) stops being a proceeding in the Supreme Court; and
(b) becomes a proceeding in the Magistrates Court.
(4) The proceeding is taken to have been started in the Magistrates Court
on the day the proceeding was started in the Supreme Court.
(5) Costs in the proceeding are to be allowed—
(a) for costs incurred before the order under rule 1430 is made
(including the costs of getting the order) and the costs of getting
the copies mentioned in subrule (2)—
(i) if the Court makes an order in relation to the costs—in
accordance with the order; or
(ii) in any other case—at the prescribed scale of costs; and

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 Civil proceedings generally Chapter 2
Court supervision Part 2.14
Transfer of proceedings between courts Division 2.14.1A
Rule 1432

(b) for costs incurred after the order is made (not including the costs
of getting the copies mentioned in subrule (2))—in accordance
with rule 1722 (Costs—solicitors’ costs generally) as if the
proceeding were a proceeding in the Magistrates Court
immediately after the order is made.

1432 Transfer of proceeding from Magistrates Court to

Supreme Court—application
(1) The Supreme Court may, on application by a party to a proceeding
started in the Magistrates Court, order that the proceeding be
transferred to the Supreme Court.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(2) The Court may make an order under subsection (1) on the conditions
about costs, security for the amount claimed for costs, or otherwise,
that the Court considers just.

1433 Transfer of proceeding from Magistrates Court to

Supreme Court—stay of proceeding
(1) This rule applies to an application under rule 1432.
(2) The Supreme Court may, on application by a party to the proceeding,
order that the proceeding be stayed until the application is decided or
the Court otherwise orders.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(3) An order under this rule takes effect immediately on filing a copy of
the order in the Magistrates Court.

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Chapter 2 Civil proceedings generally
Part 2.14 Court supervision
Division 2.14.1B Removal of applications from ACAT to Supreme Court
Rule 1440

Division 2.14.1B Removal of applications from ACAT

to Supreme Court
1440 Removal of applications from ACAT to Supreme Court—
application
This division applies if—
(a) an application is made to the ACAT; and
(b) the ACAT orders that the application be removed to the
Supreme Court under the ACT Civil and Administrative
Tribunal Act 2008, section 83.

1441 Removal of applications from ACAT to Supreme Court—

procedure
(1) The ACAT must, within 14 days after the order is made, file in the
Supreme Court a copy of—
(a) the application; and
(b) the order removing the application to the court.
(2) When the documents mentioned in subrule (1) are filed—
(a) the court must set a date for a directions hearing; and
(b) the registrar must tell the parties the date set for the directions
hearing.
(3) The application is taken to be an originating application started in the
Supreme Court on the day the application was started in the ACAT.
(4) The respondent to the application must file a notice of intention to
respond within 14 days after the ACAT orders the removal.

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 Civil proceedings generally Chapter 2
Court supervision Part 2.14
Failure to comply with rules or order Division 2.14.2
Rule 1450

Division 2.14.2 Failure to comply with rules or order

1450 Effect of failure to comply with rules
(1) A failure to comply with these rules in relation to a proceeding is an
irregularity and does not make the proceeding, or a document, step
taken or order made in the proceeding, void.
(2) If there has been a failure to comply with these rules in relation to a
proceeding, the court may—
(a) set aside all or part of the proceeding; or
(b) set aside a step taken or order made in the proceeding; or
(c) declare a document or step taken to be void; or
(d) declare a document or step taken to be valid; or
(e) make another order that could be made under these rules
(including an order dealing with the proceeding generally); or
(f) make any order dealing with the proceeding generally that it
considers appropriate.
(3) However, the court must not—
(a) set aside a proceeding only because the proceeding was started
by the incorrect originating process; or
(b) set aside an originating process only because the incorrect
originating process was used.
(4) The court may act under subrule (2) on application by a party or on
its own initiative.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

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Chapter 2 Civil proceedings generally
Part 2.14 Court supervision
Division 2.14.2 Failure to comply with rules or order
Rule 1451

1451 Application because of failure to comply with rules

(1) An application for an order under rule 1450 must be made—
(a) within a reasonable time; and
(b) before the applicant has taken any fresh step in the proceeding
after becoming aware of the failure to comply with these rules.
(2) The application must set out details of the failure to comply with these
rules.

1452 Failure to comply with order to take step

(1) This rule applies if a party (the defaulting party) does not comply
with an order to take a step in a proceeding in the court.
(2) A party who is entitled to the benefit of the order may apply to the
court for an order under this rule against the defaulting party.
Note Pt 6.2 (Applications in proceedings) applies to the an application for an
order or leave under this rule.

(3) The application—

(a) must set out the grounds on which it is based; and
(b) is evidence of the grounds stated in the application.
(4) On the hearing of the application, the court may—
(a) give judgment against the defaulting party; or
(b) extend time to comply with the order that has not been complied
with; or
(c) give directions; or
(d) make any other order.
(5) The party who makes the application may reply to any material filed
by the defaulting party.

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 Civil proceedings generally Chapter 2
Court supervision Part 2.14
Failure to comply with rules or order Division 2.14.2
Rule 1452

(6) The application may be withdrawn with the agreement of all parties
concerned in the application or with the court’s leave.
(7) A judgment given under subrule (4) (a) may be set aside—
(a) if the application was made without being served on the
defaulting party, or the court is satisfied the defaulting party was
not present at the hearing of the application for good reason—
on an application to set the judgment aside; or
(b) otherwise—only on appeal.
(8) The powers of the court under this rule are additional to any other
powers of the court under a territory law.
Note A territory law includes these rules (see Legislation Act, s 98).

(9) This rule does not limit the powers of the court to punish for contempt
of court.

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Chapter 2 Civil proceedings generally
Part 2.15 Trial
Division 2.15.1 Interpretation—pt 2.15
Rule 1500

Part 2.15 Trial

Division 2.15.1 Interpretation—pt 2.15
1500 Meaning of question—pt 2.15
In this part:
question includes a question or issue in a proceeding, whether of fact
or law or partly of fact and partly of law, and whether raised by
pleadings, agreement of parties or otherwise.

Division 2.15.2 Proceedings at trial

1505 Trial—defendant or plaintiff not appearing
(1) If a defendant does not appear when the trial starts, the plaintiff may
call evidence to establish an entitlement to judgment against the
defendant in the way the court directs.
Note Pt 6.2 (Applications in proceedings) applies to an application for
directions or an order under this rule.

(2) If the plaintiff does not appear when the trial starts, the court may
dismiss the plaintiff’s originating process and the defendant may call
evidence to establish an entitlement to judgment under a counterclaim
against the plaintiff, in the way the court directs.
(3) Despite subrule (2), the defendant may submit to judgment if the
plaintiff does not appear when the trial starts.
(4) If neither the plaintiff nor the defendant appear when the trial starts,
the court may, on its own initiative, order that the proceeding
(including any counterclaim by the defendant) be dismissed and make
no order for costs.

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 Civil proceedings generally Chapter 2
Trial Part 2.15
Proceedings at trial Division 2.15.2
Rule 1506

(5) On application made not later than 7 days after the day judgment is
entered because of this rule, the court may amend or set aside the
judgment.
Note Rule 6901 (Orders may be made on conditions) provides that the court
may make an order under these rules on any conditions it considers
appropriate.

1506 Trial—adjournment etc

On application by a party or on its own initiative, the court may
adjourn or postpone a trial at or before the trial.
Note 1 Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.
Note 2 Rule 6901 (Orders may be made on conditions) provides that the court
may make an order under these rules on any conditions it considers
appropriate.

1507 Trial—third-party proceeding

A third-party proceeding may be tried in the same way as the
proceeding between the plaintiff and the defendant.

1508 Order of evidence and addresses

(1) This rule applies—
(a) subject to any directions by the court about the order of evidence
and addresses and the conduct of the trial generally; and
(b) if there are more than 2 parties to the proceeding or a
counterclaim in the proceeding—to the proceeding with
necessary changes.
Note The court has a general power to make directions about the conduct of a
proceeding (see r 1401 (Directions generally)).

(2) If the plaintiff has the burden of proof on any issue, the plaintiff’s
case is presented first.

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Chapter 2 Civil proceedings generally
Part 2.15 Trial
Division 2.15.2 Proceedings at trial
Rule 1509

(3) If the defendant has the burden of proof on every issue, the
defendant’s case is presented first.
(4) The party whose case is presented first (the first party) may make an
address opening the first party’s case and may then present evidence
in support of the case.
(5) If, during the presentation of the first party’s case, no document or
thing is admitted in evidence or by tender by the other party, and the
other party does not present any evidence in support of the other
party’s case, the first party may make a closing address and the other
party may then make a closing address.
(6) If, during the presentation of the first party’s case, a document or
thing is admitted in evidence or by tender by the other party, but the
other party does not present any evidence in support of the other
party’s case, the other party may make a closing address and the first
party may then make a closing address.
(7) If the other party presents evidence—
(a) the other party may make an opening address and, after the other
party’s evidence is presented, may make a closing address; and
(b) after the other party has made a closing address, the first party
may make a closing address.

1509 View by court

On application by a party or on its own initiative, the court may
inspect a place, process or thing, and witness any demonstration about
which an issue arises in the proceeding.
Note Pt 6.2 (Applications in proceedings) applies to an application under this
rule.

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 Civil proceedings generally Chapter 2
Trial Part 2.15
Separate decisions on questions Division 2.15.3
Rule 1510

1510 Associate etc to record hearing times

(1) This rule applies only in relation to the Supreme Court.
(2) The judicial officer’s associate or other officer present at a hearing of
a proceeding must, on each day of the hearing, record the times when
the hearing starts and ends.
(3) If the costs of a party to the proceeding are to be assessed, the
recorded times must be provided to the registrar for the assessment.

1511 Associate to enter findings etc

(1) This rule applies only in relation to the Supreme Court.
(2) The judicial officer’s associate must, as directed by the judicial
officer, record—
(a) the orders made by the judicial officer about judgment; and
(b) the certificates (if any) given by the judicial officer; and
(c) anything else directed by the judicial officer.

Division 2.15.3 Separate decisions on questions

1520 Application—div 2.15.3
(1) This division applies to any question for decision of the court from a
proceeding in the court.
(2) However, this division does not apply to—
(a) a question for decision of the Supreme Court from a proceeding
in another court or a tribunal; or

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Chapter 2 Civil proceedings generally
Part 2.15 Trial
Division 2.15.3 Separate decisions on questions
Rule 1521

(b) a case stated or question reserved by the Supreme Court to the

Court of Appeal.
Note 1 Div 5.7.1 (Questions referred—Supreme Court) deals with questions for
decision of the Supreme Court from a proceeding in another court or a
tribunal.
Note 2 Div 5.7.2 (Questions referred—Court of Appeal) deals with a case stated
or question reserved by the Supreme Court for decision by the Court of
Appeal.

1521 Separate decisions on questions—order

(1) The court may make an order for the decision by the court of a
question separately from another question, whether before, at, or after
the trial or continuation of the trial of the proceeding.
(2) The court may make an order under subrule (1) on application by a
party to a proceeding or on its own initiative.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(3) Unless the court otherwise orders, a separate question or questions

must—
(a) set out the question or questions to be decided; and
(b) be divided into paragraphs numbered consecutively; and
(c) be prepared in draft by the initiating party for the proceeding
after consultation with each other active party; and
(d) be settled by the registrar; and
(e) be filed.
(4) In this rule:
initiating party means—
(a) if the order under subrule (1) was made on the application of a
party—that party; or

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 Civil proceedings generally Chapter 2
Trial Part 2.15
Assessors and court-appointed referees Division 2.15.4
Rule 1522

(b) if the order under subrule (1) was made by the court on its own
initiative—the party nominated by the court.

1522 Separate decisions on questions—directions

On the filing of the question—
(a) the court must set a date for a directions hearing; and
(b) the registrar must tell the parties the date set for the directions
hearing.

1523 Separate decisions on questions—decision

(1) If a question is decided under this division, the court may make the
order, grant the relief and give the directions that the nature of the
case requires.
(2) The court may, in relation to a decision of a question under this
division, as the nature of the case requires—
(a) dismiss the proceeding or all or part of a claim for relief in the
proceeding; or
(b) give judgment, including a declaratory judgment; or
(c) make another order.

Division 2.15.4 Assessors and court-appointed

referees
1530 Assessors
(1) The court may sit with 1 or more assessors.
(2) A trial with assessors may be conducted as the court directs.
Note Pt 6.2 (Applications in proceedings) applies to an application for
directions under this rule.

(3) Assessors may be appointed as the court directs.

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Chapter 2 Civil proceedings generally
Part 2.15 Trial
Division 2.15.4 Assessors and court-appointed referees
Rule 1531

(4) The Legislation Act, part 19.3 (Appointments) does not apply to an
appointment under this rule.

1531 Referee—referral of question etc

(1) The court may, at any stage of a proceeding—
(a) refer a question to a referee for the referee to give an opinion on,
or hear and decide, the question; or
(b) refer the proceeding to a referee for the referee to give an
opinion on, or hear and decide, the proceeding.
(2) The court may make an order on application by a party to the
proceeding or on its own initiative.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
or directions under this rule.

(3) If the court makes an order under subrule (1), it may give directions
about the conduct of the reference.
(4) Directions may be given in the reference or from time to time on
application by a party or on the court’s own initiative.

1532 Referee—appointment
(1) The court may appoint a referee for a reference.
Note Pt 6.2 (Applications in proceedings) applies to an application for an
appointment.

(2) A referee may be—

(a) a judicial officer or other officer of the court; or
(b) anyone else—
(i) agreed by the parties; or
(ii) named by the court; or
(iii) named by a person nominated by the court to select a
suitable referee.

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 Civil proceedings generally Chapter 2
Trial Part 2.15
Assessors and court-appointed referees Division 2.15.4
Rule 1533

(3) A judicial officer or other officer of the Supreme Court may only be
appointed with the agreement of the Chief Justice.
(4) A judicial officer or other officer of the Magistrates Court may only
be appointed with the agreement of the Chief Magistrate.
(5) The Legislation Act, part 19.3 (Appointments) does not apply to an
appointment under this rule.

1533 Referee—amendment of order referring question etc

(1) The court may amend or set aside an order made under rule 1531
(Referee—referral of question etc).
(2) The court may amend or set aside the order—
(a) on application by the referee or a party to the proceeding under
the reference; or
(b) on its own initiative.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(3) This rule does not affect any other power of the court to amend or set
aside an order made under rule 1531.

1534 Referee—conduct under reference

(1) A question or proceeding referred to a referee under rule 1531 must
be conducted as if—
(a) the reference were an arbitration agreement under the
Commercial Arbitration Act 2017; and
(b) the referee were an arbitral tribunal under that Act.
(2) However, each party to the proceeding must, within a time set by the
referee but before the referee has finished hearing evidence, give the
referee and each other active party a brief statement of the findings of
fact and law that the party says the referee should make.

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Chapter 2 Civil proceedings generally
Part 2.15 Trial
Division 2.15.4 Assessors and court-appointed referees
Rule 1535

(3) This rule is subject to—

(a) any directions given by the court under rule 1531 for the
reference; and
(b) rule 1535.

1535 Referee—submission of question to court

(1) A referee may submit for the decision of the court a question that
arises in the course of the question or proceeding referred to the
referee under rule 1531.
(2) The registrar must give a copy of the question to each active party at
least 7 days before the day the question is considered by the court.
(3) A party to the proceeding may file written submissions about the
question not later than 7 days after the day the party is given a copy
of the question.
(4) The court must set a date for a hearing to consider the question.
(5) The registrar must tell the active parties the date set for the hearing.
(6) After considering any submissions made by the parties, the court must
decide the question and may give the referee directions it considers
appropriate.
(7) The referee must comply with the decision of the court given on the
question or proceeding.

1536 Referee—report
(1) Unless the court otherwise orders, a referee must file a written report
on the question or proceeding referred to the referee.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
otherwise ordering.

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 Civil proceedings generally Chapter 2
Trial Part 2.15
Assessors and court-appointed referees Division 2.15.4
Rule 1537

(2) The report must—

(a) give the referee’s opinion or decision on the question or
proceeding referred; and
(b) give reasons for the opinion or decision; and
(c) have attached to it the statements given to the referee by the
parties under rule 1534 (2).
(3) The registrar must give a copy of the report to each active party.

1537 Referee—proceeding on report

(1) This rule applies if a referee’s report has been filed in the court in a
proceeding.
(2) On application by a party, the court may, on a matter of fact or law or
both—
(a) accept, amend or reject all or part of the report; or
(b) require the referee to give an explanation by further report; or
(c) on any ground, remit for further consideration and report by the
referee all or part of the question or proceeding referred to the
referee; or
(d) make an order in the proceeding on the evidence taken before
the referee, with or without additional evidence.
Note 1 Order is defined in the dictionary to include judgment (see also
def made).
Note 2 Pt 6.2 (Applications in proceedings) applies to an application under this
subrule or for leave under this rule.

(3) A party applying for an order under subrule (2) (d) must give at least
7 days notice of the party’s intention to apply for the order to all other
active parties.

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Chapter 2 Civil proceedings generally
Part 2.15 Trial
Division 2.15.5 Assessment of damages
Rule 1538

(4) Evidence additional to the evidence taken before the referee must not
be given before the court on the question or proceeding referred to the
referee unless the court gives leave.

1538 Assessor and referee—remuneration

(1) The court may decide, either in the first instance or finally—
(a) the remuneration of a referee or assessor; and
(b) by which party or parties, and in what proportion, the
remuneration is to be paid.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(2) The court may—

(a) order a party to give security for the remuneration of a referee
or assessor; and
(b) order a stay of the proceeding until the security is given.

Division 2.15.5 Assessment of damages

1545 Application—div 2.15.5
This division applies subject to any order of the court.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

1546 Assessment of damages

(1) An assessment of damages must be conducted as nearly as possible
in the same way as a trial.
(2) This rule is subject to rule 1547.

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 Civil proceedings generally Chapter 2
Trial Part 2.15
Assessment of damages Division 2.15.5
Rule 1547

1547 Assessment of damages—use of affidavit evidence

(1) This rule applies to a proceeding in the Magistrates Court if judgment
has been entered for the plaintiff against the defendant for damages
to be assessed.
(2) Evidence may be given by affidavit on the assessment of damages in
relation to—
(a) the identity of a motor vehicle; or
(b) the damage sustained by a motor vehicle in a particular collision;
or
(c) the reasonable cost of repairing the damage sustained by a motor
vehicle in the particular collision; or
(d) anything else prescribed by practice note.

1548 Partial judgment for damages to be assessed

(1) This rule applies if—
(a) a judgment (including a default judgment) is given for damages
(including the value of goods) to be assessed; and
(b) the proceeding is carried on in relation to a claim for relief not
decided by the judgment.
(2) The court must assess the damages at the trial of the other claim for
relief.

1549 Damages to time of assessment

(1) This rule applies if damages, including interest, may be assessed
and—
(a) continuing damages are likely to happen; or
(b) there are—
(i) repeated breaches of recurring obligations; or

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Chapter 2 Civil proceedings generally
Part 2.15 Trial
Division 2.15.5 Assessment of damages
Rule 1549

(ii) intermittent breaches of a continuing obligation.

(2) The damages must be assessed for the period up to the time of
assessment, including damages for breaches happening after the
proceeding started.

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 Civil proceedings generally Chapter 2
Judgments and other orders Part 2.16

Rule 1600

Part 2.16 Judgments and other orders

1600 Orders—required by nature of case

(1) On the application of a party to a proceeding, the court may, at any
stage of the proceeding, make any order that the nature of the case
requires.
Note 1 Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.
Note 2 Order is defined in the dictionary to include judgment (see also
def made).

(2) The court may make the order even if there is no claim for relief
extending to the order in the originating process, statement of claim,
counterclaim or similar document.

1601 Judgment book

(1) The registrar of the Supreme Court must keep a judgment book.
(2) The judgment book may be kept in electronic form.
(3) The registrar must record in the judgment book—
(a) the distinguishing number or other unique identifier given to the
proceeding for which a judgment is entered under rule 71
(Numbering etc of proceedings); and
(b) the judgment in the proceeding; and
(c) the date the judgment was entered; and
(d) the other information the court directs.
(4) The registrar may record any other information in the judgment book.

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Chapter 2 Civil proceedings generally
Part 2.16 Judgments and other orders

Rule 1602

1602 Judgments—several claims

(1) This rule applies if—
(a) there is a claim by a plaintiff in a proceeding and a counterclaim
by a defendant in the proceeding; or
(b) there are several claims between the parties to a proceeding.
(2) The court may give judgment—
(a) for the balance only of the amounts awarded on the respective
claims between 2 or more parties; or
(b) in relation to each claim.

1603 Orders—set off between enforceable money orders

(1) This rule applies if, in relation to 2 or more money orders of the same
court, the enforcement creditor and the enforcement debtor under 1
or more of the orders are the enforcement debtor and enforcement
creditor, respectively, under the other orders.
Note Enforceable money order, enforcement creditor and enforcement
debtor are defined in r 2000 (Definitions—pt 2.18).

(2) The enforcement debtor under an enforceable money order made in a

proceeding (the first order) may apply to the court for an order in the
proceeding that the first order be set off against another enforceable
money order of the same court (the second order) in which the
enforcement debtor is the enforcement creditor.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(3) If the court makes an order under this rule—

(a) if the amount of the first order is less than the amount of the
second order—the first order is taken to have been satisfied and
the amount of the second order is taken to have been reduced by
the amount of the first order; or

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 Civil proceedings generally Chapter 2
Judgments and other orders Part 2.16

Rule 1604

(b) if the amount of the first order is equal to the amount of the
second order—both orders are taken to have been satisfied; or
(c) if the amount of the first order is greater than the amount of the
second order—the second order is taken to have been satisfied
and the amount of the first order is taken to have been reduced
by the amount of the second order.

1604 Judgments—detention of goods

(1) This rule applies to a proceeding in relation to the detention of goods.
(2) The court may give judgment for the plaintiff against the defendant,
in accordance with the plaintiff’s claim for relief, for either—
(a) the return of the goods to the plaintiff, or the retention of the
goods by the defendant and payment to the plaintiff of the value
of the goods; or
(b) payment to the plaintiff of the value of the goods.
(3) If the court gives judgment for the return of goods, it may state a date
before which the return must take place.
(4) If the court gives judgment for the return of goods, but the goods are
subsequently damaged, destroyed or otherwise made unavailable for
return, the court may, on the plaintiff’s application, order the
defendant to pay the value of the goods to the plaintiff.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(5) If the court gives judgment under subrule (2) (a), and the plaintiff
subsequently applies for an order under this subrule, the court may
make an order for the return of the goods to the plaintiff without the
option of the defendant retaining the goods and paying their value.
(6) In this rule:
value, of the goods, means the value assessed by, or in accordance
with the directions of, the court.

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Chapter 2 Civil proceedings generally
Part 2.16 Judgments and other orders

Rule 1605

1605 Orders—making and effect

(1) An order of the court is made by the order—
(a) being pronounced in court by the judicial officer making the
order; or
(b) being recorded, in accordance with the court’s practice, as
having been entered.
Note Order is defined in the dictionary to include judgment (see also
def made).

(2) An order takes effect on the day that the order is made.
(3) However, the court may order that the order takes effect on an earlier
or later date or at any earlier or later time.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under r (3).

1605A Orders—shortened form

If an order of the court is expressed to be the usual order or is
otherwise in shortened form, the full terms of the order must be
included when the order is entered or filed in the proceeding.
Examples
1 Rule 732 (Division 2.9.4 order—damages and undertaking as to damages)
requires the usual undertaking as to damages to be given.
2 Rule 1622 (Interest after judgment—usual order as to interest) provides for the
usual order as to interest.

1606 Orders—filing
(1) If a judicial officer or associate writes the date and terms of an order
on a court file or document on a court file, then, unless the order is
filed in the court, the writing is sufficient proof of the making of the
order, its date and terms.

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 Civil proceedings generally Chapter 2
Judgments and other orders Part 2.16

Rule 1606

(2) An order of the court is filed in the court if a document embodying

the order, and the date the order was made, is drawn up, settled and
signed by the registrar, and filed in the court.
(3) The party in whose favour an order is made may, not later than 7 days
after the day the order is made, file in the court a draft order for
settling by the registrar.
Note See
• approved form 2.41 (General form of judgment—civil proceeding)
AF2015-30
• approved form 2.42 (General form of order—civil proceeding)
AF2015-31.

(4) If a draft order is not filed in accordance with subrule (3), another
party to the proceeding may file in the court a draft order for settling
by the registrar.
(5) If a draft order is filed in the court under this rule, the registrar—
(a) may approve the draft with or without amendment; and
(b) must enter the order on the filing of the final order in accordance
with the approved draft.
(6) An order must be filed in the court if—
(a) the order is a judgment or other final order; or
(b) the court directs it to be filed; or
(c) a party asks for it to be filed.
(7) Unless an order is filed in the court—
(a) the order may not be enforced under part 2.18 (Enforcement) or
by other process; and
(b) an appeal may not be brought against the order without the leave
of the court to which the appeal would be made.
Note Pt 6.2 (Applications in proceedings) applies to an application for leave.

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Chapter 2 Civil proceedings generally
Part 2.16 Judgments and other orders

Rule 1607

(8) However—
(a) an order appropriate on default of an earlier order may be made
without the earlier order being filed in the court; and
(b) costs payable under an order may be assessed without the order
being filed in the court.

1607 Orders—certified duplicate

(1) Unless the court otherwise orders on its own initiative, the registrar
must, on request, give a person a sealed copy of an order entered in a
proceeding.
Note A fee may be determined under the Court Procedures Act 2004, s 13 for
this provision.

(2) However, the registrar must not give a copy of the order to a person
who is not a party to the proceeding unless the person appears to the
registrar to have a sufficient interest in the order.
(3) If a rule, order or practice of the court requires the production or
service of a judgment or other order, it is sufficient to produce or serve
the sealed copy of the order.

1608 Orders—reasons
(1) If the court makes an order, and its reasons for the order are put in
writing, the court may make the order orally without stating the
reasons.
(2) The reasons of the court for making any order in a proceeding may,
if in writing, be published—
(a) by the reasons being delivered in court to a judicial officer’s
associate or an appropriate officer of the court for a copy to be
given to each party; or

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 Civil proceedings generally Chapter 2
Judgments and other orders Part 2.16

Rule 1609

(b) by a copy of the reasons signed by the judicial officer making

the order being given to an appropriate officer of the court to
deliver in court and a copy being given to each party.
Note Order is defined in the dictionary to include judgment (see also
def made).

(3) The reasons of a court for a proposed order may be published before
the order is made.

1609 Orders—reservation of decision

(1) At the end of a hearing in a proceeding, the judicial officer may
reserve the decision on any question of fact or law, and may deliver
the decision on another date or a date to be set.
(2) If a judicial officer reserves a decision in a proceeding, the judicial
officer may arrange for written reasons for the decision to be prepared
setting out the proposed order, sign them and send them to another
judicial officer for delivery.
(3) The other judicial officer must, at a convenient time, publish in court
the reasons for the decision.
(4) The publication by the other judicial officer has the same effect as if,
at the time of publication, the judicial officer who reserved the
decision had been present in court and made the order proposed in the
written reasons, and published the reasons in person.

1610 Orders—time for compliance

(1) An order in a proceeding requiring a person to perform an act must
state the time within which the person is required to perform the act.

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Chapter 2 Civil proceedings generally
Part 2.16 Judgments and other orders

Rule 1611

(2) If an order in a proceeding requires a person to perform an act

immediately or immediately on the happening of a stated event or to
perform an act but does not state a time for the performance, the court
may, by order, state a time within which the person must perform the
act.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(3) An order requiring a person to perform an act must have written on it

or attached to it the following statement or a statement to the same
effect:
‘If you, [state name of person required to perform act], do not
obey this order within the time stated in it, a court proceeding
may be taken to compel you to obey it.’
(4) The court may amend a time stated in an order for the performance of
an act.

1611 Orders—by consent

(1) The registrar may make an order in a proceeding if—
(a) the parties affected by the order consent to the order; and
(b) the registrar considers it appropriate.
Note Order is defined in the dictionary to include a judgment, direction or
decision of the court (see also def made).

(2) A party affected by the order may file a draft order for settling by the
registrar.
Note See
• approved form 2.43 (General form of consent judgment)
AF2007-62
• approved form 2.44 (General form of consent order) AF2006-289.

(3) The draft order must include a statement signed by the parties affected
by the order that the parties consent to the order.

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 Civil proceedings generally Chapter 2
Judgments and other orders Part 2.16

Rule 1612

(4) If a draft order is filed under this rule, the registrar—

(a) may approve the draft with or without amendment; and
(b) must enter the order on the filing of the final order in accordance
with the approved draft.
(5) An order made under this rule has effect as if it had been made by the
court on the day it is entered under this rule.

1612 Orders—by consent in proceeding

(1) This rule applies to an order in a proceeding for judgment by consent.
(2) If a party is represented by a legal practitioner in the proceeding, the
party’s consent to the order must be given by the party’s practitioner.
(3) If a party acts in person in the proceeding, the party’s consent to the
order must be given—
(a) in person to the judicial officer hearing the proceeding; or
(b) in writing, witnessed by a legal practitioner.
(4) However, a party who is a legal practitioner complies with subrule (3)
(b) if the consent is in writing.

1613 Orders—setting aside etc

(1) The court may amend or set aside an order before the filing of the
order.
Note 1 Order is defined in the dictionary to include judgment (see also
def made).
Note 2 Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(2) The court may set aside an order at any time if—
(a) the order was made in the absence of a party; or
(b) the order was obtained by fraud; or

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Part 2.16 Judgments and other orders

Rule 1614

(c) the order is for an injunction or the appointment of a receiver; or

(d) the order does not reflect the court’s intention at the time the
order was made; or
(e) the party who has the benefit of the order consents; or
(f) for a judgment for specific performance, the court considers it
appropriate for reasons that have arisen since the order was
made.
(3) If the court sets aside an order, it may also set aside any order made
to enforce the order.
(4) If the court sets aside an order under subrule (3), the setting aside of
the order does not affect the title to any property sold under the order
before it is set aside.
(5) This rule does not apply to a default judgment.
Note See r 1128 (Default judgment—setting aside etc) in relation to setting
aside a default judgment.

1614 Order dismissing proceeding—effect

(1) This rule applies to the dismissal of—
(a) a proceeding, either generally or in relation to any cause of
action; or
(b) a claim, or any part of a claim, for relief in a proceeding.
(2) Subject to the order for dismissal, the dismissal does not prevent the
plaintiff in the proceeding from starting a fresh proceeding or
claiming the same relief in a fresh proceeding.
(3) However, if the dismissal follows a decision on the merits, the
plaintiff must not claim any relief in relation to the same cause of
action in any subsequent proceeding in a court.

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 Civil proceedings generally Chapter 2
Judgments and other orders Part 2.16

Rule 1615

1615 Orders—joint liability

(1) This rule applies if—
(a) 2 or more people are jointly liable in relation to a cause of action
in a proceeding; and
(b) 1 or more, but not all, of the people jointly liable are served with
the originating process.
(2) The court may enter judgment in relation to the cause of action against
any 1 or more of the people served with the originating process, and
the judgment may be enforced against anyone against whom
judgment is entered.
(3) If judgment is entered in relation to the cause of action against 1 or
more, but not all, of the people jointly liable in relation to the cause
of action—
(a) the liability of the people jointly liable against whom judgment
is not entered (the other people) is not discharged by the
judgment or any enforcement of the judgment; and
(b) the people against whom judgment is entered (the judgment
parties) and the other people are, as between the judgment
parties on the one hand and the other people on the other hand,
liable severally but not jointly; and
(c) if there are 2 or more other people—the other people are jointly
liable as between themselves; and
(d) if the judgment is satisfied or partly satisfied—the liability of
the other people is discharged to the extent to which the
judgment is satisfied.
(4) Subrule (3) does not affect a person’s right to contribution or
indemnity in relation to the person’s satisfaction of all or part of a
liability that the person has (whether jointly, severally or jointly and
severally) with anyone else.

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Chapter 2 Civil proceedings generally
Part 2.16 Judgments and other orders

Rule 1616

(5) This rule does not apply to a proceeding to which the Civil Law
(Wrongs) Act 2002, section 107F (Proportionate liability for
apportionable claims) applies.

1616 Payment into court—payment of amount paid into court

under order
An amount paid into court under an order of the court may be paid
out of court only under an order of the court.
Note 1 Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.
Note 2 An order of the court includes a consent order (see r 1611 (Orders—by
consent)).

1617 Payment into court—amount recovered by person with

legal disability
(1) An amount (including an amount of damages) recovered, awarded or
agreed to be paid in a proceeding in relation to the claim for relief of
a person with a legal disability must be paid into court.
(2) The amount may be paid out of court only under an order of the court.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(3) In this rule:

order of the court does not include a consent order.

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Rule 1618

1618 Person with legal disability—orders about recovered

amounts etc
(1) The court may make an order directing how an amount recovered,
awarded or agreed to be paid in a proceeding in relation to the claim
for relief of a person with a legal disability (the claimant) must be
dealt with.
Note An amount ordered to be paid to a person with a legal disability must be
paid into court and, unless the court otherwise directs, be paid out to the
public trustee and guardian (see Public Trustee and Guardian Act 1985,
s 25).

(2) Without limiting subrule (1), the court may, by order, direct—
(a) the payment of all or part of the amount to—
(i) the claimant or the claimant’s litigation guardian for—
(A) expenses incurred by or paid for the claimant; or
(B) the maintenance or benefit of the claimant; or
(ii) the claimant’s solicitor for costs; or
(b) the investment of all or part of the amount for the claimant in
the way stated in the order; or
(c) the investment of all or part of the interest received from an
investment under this rule for the claimant in the way stated in
the order; or
(d) the changing of an investment made for the claimant under this
rule; or
(e) the sale of securities in which an amount is invested for the
claimant under this rule at the time, and on the conditions, stated
in the order; or
(f) the payment of all or part of the amount, or the transfer of a
security or investment under this rule (including an account with
an authorised deposit-taking institution), for the claimant.

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Chapter 2 Civil proceedings generally
Part 2.16 Judgments and other orders

Rule 1618A

(3) In this rule:

amount includes an amount of damages.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

1618A Person with mental disability—payment out to public

trustee and guardian
(1) This rule applies if—
(a) an amount is paid into court under rule 1617 in relation to a
person with a mental disability (the claimant); and
(b) the amount is to be paid out of court to the public trustee and
guardian under the Public Trustee and Guardian Act 1985,
section 25 (Payment of money etc to public trustee and guardian
on behalf of person under disability).
(2) The court must—
(a) note that the claimant is a person with a mental disability; and
(b) direct the claimant’s solicitor to serve a copy of the principal
affidavit and medical documents filed in the proceeding on the
public trustee and guardian.

1619 Interest up to judgment

(1) In a proceeding for the recovery of money, including a debt or
damages or the value of goods, the court may—
(a) order that interest be included in the amount for which judgment
is given—
(i) at the rate it considers appropriate; and
(ii) on all or any part of the money; and

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Rule 1619

(iii) for all or any part of the period beginning on the day the
cause of action arose and ending on the day before the day
judgment is entered; or
(b) order that a lump sum be included in the amount for which
judgment is given instead of interest under paragraph (a).
(2) However, the court must not order that interest be included, or that an
amount be included in a lump sum instead of interest, for—
(a) compensation in relation to liabilities incurred that do not carry
interest as against the person claiming interest or claiming a
lump sum instead of interest; or
(b) compensation for loss or damage to be incurred or suffered after
the day judgment is given; or
(c) exemplary or punitive damages.
(3) Subrule (4) applies if—
(a) a proceeding is started for a debt or liquidated demand; and
(b) payment of all or part of the debt or liquidated demand is made
during the proceeding and before or without judgment being
entered in relation to the debt or liquidated demand.
(4) On application by a party to the proceeding, the court may order that
interest be paid—
(a) at the rate it considers appropriate on all or part of the amount
paid; and
(b) for all or any part of the period between the day the cause of
action arose and the day of the payment.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this subrule.

(5) For subrule (1) (a), the court may set the rate of interest—
(a) in accordance with the rate stated in the claim for relief; or

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Part 2.16 Judgments and other orders

Rule 1620

(b) having regard to the rate of interest applying, from time to time,
under schedule 2, part 2.1 (Interest up to judgment).
(6) This rule does not—
(a) authorise the giving of interest on interest awarded under this
rule; and
(b) apply in relation to any debt on which interest is payable as of
right, whether by agreement or otherwise; and
(c) affect damages recoverable for the dishonour of a bill of
exchange.
(7) In a proceeding for damages, the court must not order the payment of
interest under this rule in relation to a period after the defendant offers
(or first offers) an appropriate settlement amount to the plaintiff
unless the special circumstances of the case justify the making of the
order.
(8) For subrule (7), if an amount is offered in settlement of the proceeding
and the amount for which judgment is entered in the proceeding
(including interest until the day of the offer) does not exceed the
amount offered in settlement by more than 10%, the amount offered
is an appropriate settlement amount.

1620 Interest after judgment

(1) Unless the court otherwise orders, interest is payable on the amount
of a judgment debt (other than costs) that is unpaid at any time—
(a) if the court has entered judgment for an amount of interest under
rule 1120 (2) (a) (Default judgment—debt or liquidated
demand) worked out in accordance with the rate stated in the
plaintiff’s claim for relief—at the rate stated in the plaintiff’s
claim for relief; or

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Rule 1621

(b) in any other case—at the rate of interest applying at that time
under schedule 2, part 2.2 (Interest after judgment).
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
otherwise ordering.

(2) However, unless the court otherwise orders, interest is not payable on
the amount of the judgment debt if the amount is paid in full not later
than 28 days after the day the judgment takes effect.
(3) Interest is payable on any amount awarded for costs, unless the court
otherwise orders.
(4) Unless the court otherwise orders, interest is payable on an amount
awarded for costs that is unpaid at any time—
(a) at the rate of interest applying at that time under schedule 2, part
2.2 (Interest after judgment); and
(b) from the day the costs were assessed or another date decided by
the court.
(5) This rule does not authorise the giving of interest on interest payable
under this rule.

1621 Judgment for interest only

(1) This rule applies if—
(a) the defendant in a proceeding satisfies the plaintiff’s claim after
the proceeding is started; and
(b) the plaintiff would be entitled to judgment on the claim if the
defendant had not satisfied the claim.
(2) The plaintiff is entitled to judgment for interest in relation to the
amount claimed in accordance with rule 1619 (Interest up to
judgment).

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Chapter 2 Civil proceedings generally
Part 2.16 Judgments and other orders

Rule 1622

1622 Interest after judgment—usual order as to interest

(1) This rule applies if the court order in relation to a judgment debt or
costs awarded is expressed to be the usual order as to interest.
(2) Subject to this rule, interest is payable on the amount of the judgment
debt, and on any costs awarded, at the rate that applies, from time to
time, under rule 1620.
(3) Interest is not payable on the amount of the judgment debt if, not later
than 28 days after the date of the judgment—
(a) the debt is paid; and
(b) the plaintiff gives the defendant notice from Medicare Australia
confirming that no amount of the debt is payable to Medicare
Australia; and
(c) the defendant has not been given a notice under—
(i) the Social Security Act 1991 (Cwlth), section 1182
(Secretary may send preliminary notice to potential
compensation payer or insurer) (a preliminary
compensation recovery notice); or
(ii) the Social Security Act 1991 (Cwlth), section 1184
(Secretary may send recovery notice to compensation
payer or insurer) (a compensation recovery notice).
(4) Interest is not payable on the amount of the judgment debt if, not later
than 28 days after the date of the judgment, the defendant—
(a) pays to Medicare Australia—
(i) the amount of any charge stated in a Medicare Australia
notice of charge given to the defendant; or
(ii) if the defendant has not been given a Medicare Australia
notice of charge—10% of the judgment debt; and
(b) pays to the plaintiff—the remainder of the judgment debt.

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Judgments and other orders Part 2.16

Rule 1623

(5) Interest is not payable on the amount of the judgment debt while a
preliminary compensation recovery notice given to the defendant has
effect.
Note For the effect of a notice, see the Social Security Act 1991 (Cwlth),
s 1184B (Preliminary notice or recovery notice suspends liability to pay
compensation).

(6) Interest is not payable on the amount of the judgment debt if—
(a) the defendant is given a compensation recovery notice; and
(b) the defendant pays the amount of the judgment debt, less any
amount owing to the Commonwealth under the notice, to the
plaintiff not later than 28 days after the later of the following:
(i) the day the judgment takes effect;
(ii) the day the defendant receives the notice.
(7) Interest is not payable on any amount awarded for costs if the amount
is paid not later than 28 days after—
(a) the day the parties agree on the amount; or
(b) if paragraph (a) does not apply—the day the costs are assessed.

1623 Change in interest rates up to and after judgment

The advisory committee may recommend a change in the rates of
interest set out in schedule 2 to take effect on 1 January of the year
following the recommendation.

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Chapter 2 Civil proceedings generally
Part 2.17 Costs
Division 2.17.1 Costs generally
Rule 1700

Part 2.17 Costs

Division 2.17.1 Costs generally
1700 Definitions—pt 2.17
In this part:
costs of the proceeding, for a proceeding, means costs of all the issues
in the proceeding, and includes—
(a) costs ordered to be costs of the proceeding; and
(b) costs of complying with the necessary steps before starting the
proceeding; and
(c) costs otherwise incurred for the purpose and benefit of the
proceeding before starting the proceeding; and
(d) costs incurred before or after the start of the proceeding for
successful or unsuccessful negotiations for settlement of the
dispute.
Note 1 The costs of the proceeding include the costs of an application in the
proceeding, unless the court otherwise orders (see r 1721 (2) (Costs—
general rule)).
Note 2 This definition also applies outside this part.

party includes a person not a party to a proceeding by or to whom

assessed costs of the proceeding are payable.
prescribed scale of costs means the scale of costs in schedule 4 (Scale
of costs).
trustee includes a personal representative of a deceased individual.

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 Civil proceedings generally Chapter 2
Costs Part 2.17
Costs generally Division 2.17.1
Rule 1701

1701 Costs—general provisions

(1) The costs that the court may award—
(a) may be awarded at any stage of a proceeding or after the
proceeding ends; and
(b) must be assessed in accordance with this part.
(2) If the court awards the costs of an application in a proceeding, it may
order that the costs not be assessed until the proceeding ends.
Note 1 Application in a proceeding is defined in r 6006.
Note 2 The costs of the proceeding include the costs of an application in the
proceeding, unless the court otherwise orders (see r 1721 (2) (Costs—
general rule)).
Note 3 Pt 6.2 (Applications in proceedings) applies to an application for an order
under r (2).

1702 Costs—agreement about costs

(1) If a party entitled to costs and a person liable for costs agree that the
costs be set at a certain amount (the agreed amount), either party may
file a written agreement to the costs being set at the agreed amount.
(2) The agreement must be signed by the parties or their solicitors.
(3) On the filing of the agreement, the agreed amount is taken to be the
assessed costs between the parties.

1703 Costs—order against non-party

(1) Unless these rules otherwise provide, the court must not make an
order for costs in a proceeding against a person who is not a party to
the proceeding except in accordance with subrule (2).
Note For provisions of these rules that otherwise provide, see r 745 (Freezing
orders—costs) and r 755 (Search orders—costs).

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Chapter 2 Civil proceedings generally
Part 2.17 Costs
Division 2.17.1 Costs generally
Rule 1703

(2) The court may make an order—

(a) for payment by a relator in a proceeding of all or part of the costs
of a party to the proceeding; or
Note A relator is a person who starts and carries on a proceeding in the
Attorney-General’s name. A person may bring a proceeding as
relator with the Attorney-General’s permission (or fiat) where the
proceeding involves the public interest and the person would
otherwise not have standing to bring the proceeding.

(b) for payment by a person of all or part of the costs of a party to a

proceeding that were caused by—
(i) the person’s contravention of an order made by the court in
the proceeding that is binding on the person; or
(ii) the person’s breach of an undertaking given to the court by
the person in the proceeding; or
(c) for payment, by a person who has committed contempt of court
or an abuse of the court’s process, of all or part of the costs of a
party to a proceeding that were caused by the contempt or abuse
of process; or
(d) for costs against a person who purports, without authority, to
conduct a proceeding in the name of someone else; or
(e) for costs against a person who starts or carries on a proceeding,
or purports to do so, as an authorised director of a corporation;
or
(f) of the kind mentioned in rule 1704; or

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 Civil proceedings generally Chapter 2
Costs Part 2.17
Costs generally Division 2.17.1
Rule 1704

(g) for costs against a person in the exercise of its supervisory

jurisdiction over its own proceedings and its own officers,
including, for example, an order for costs against legal
practitioners and court-appointed liquidators and receivers.
Note 1 The court may order a legal practitioner to pay all or part of a party’s
costs if the costs are incurred because of the practitioner’s conduct (see
r 1753 (Costs—legal practitioner’s delay etc).
Note 2 Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(3) The court may make an order under subrule (2) (g) on its own
initiative if justice requires it.

1704 Costs—failure to comply with subpoena etc

(1) This rule applies if, in a proceeding—
(a) a person is ordered by the court, by subpoena or otherwise, to
attend court—
(i) to give evidence; or
(ii) to produce a document or thing; or
(iii) to answer a charge of contempt; or
(iv) for any other purpose; or
(b) a person is required by a notice for non-party production to
produce a document for inspection.
(2) If the order is not complied with, the court may order the person to
pay any costs of a party to the proceeding caused by the
noncompliance.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(3) This rule does not limit any power of the court to punish for contempt.

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Chapter 2 Civil proceedings generally
Part 2.17 Costs
Division 2.17.1 Costs generally
Rule 1705

1705 Costs—for issue or part of proceeding

(1) The court may make an order for costs in relation to a particular issue
in, or a particular part of, a proceeding.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(2) For subrule (1), the court may declare what percentage of the costs of
the proceeding is attributable to the issue or part of the proceeding to
which the order relates.

1706 Costs—if unnecessary to continue proceeding

(1) If, for any reason, it becomes unnecessary to continue a proceeding
other than for deciding who is to pay the costs of the proceeding, any
party to the proceeding may apply to the court for an order for the
costs.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(2) The court may make the order it considers just.

1707 Costs—proceeding removed to another court

(1) This rule applies if a proceeding is removed to the court from another
court or tribunal (the first court).
(2) For the proceeding—
(a) if the first court has not made an order for costs—the court may
make an order for the costs of the proceeding, including the costs
before the removal; and
(b) any order for costs made by the first court may be assessed and
enforced as if it were an order of the court.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

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Costs Part 2.17
Entitlement to costs Division 2.17.2
Rule 1708

(3) Unless the court otherwise orders, the costs up to the time of the
removal must be assessed as if the proceeding had remained in the
first court.

1708 Costs—in account

If the court orders that an account be taken and the account is partly
for costs, the court may set costs or order that the registrar assess costs
under this part.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

Division 2.17.2 Entitlement to costs

1720 Costs—entitlement to recover
(1) A party to a proceeding cannot recover any costs of the proceeding
from another party or anyone else otherwise than by agreement, under
a territory law, or an order of the court under a territory law.
Note A territory law includes these rules (see Legislation Act, s 98).

(2) If, under a territory law or an order of the court, a party is entitled to
costs, the costs are to be assessed costs.
Note The parties may agree that the costs be set at a certain amount (see r 1702
(Costs—agreement about costs).

(3) However, instead of assessed costs, the court may order a person
liable for costs to pay to the party entitled to costs—
(a) a stated part or percentage of assessed costs; or
(b) assessed costs to or from a stated stage of the proceeding; or
(c) an amount for costs decided by the court; or
(d) an amount for costs to be decided in a way the court directs.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this subrule.

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Chapter 2 Civil proceedings generally
Part 2.17 Costs
Division 2.17.2 Entitlement to costs
Rule 1721

1721 Costs—general rule

(1) The costs of a proceeding or of an application in a proceeding are in
the discretion of the court.
(2) The costs of the proceeding include the costs of an application in the
proceeding, unless the court otherwise orders.
Note 1 Application in a proceeding is defined in r 6006.
Note 2 Pt 6.2 (Applications in proceedings) applies to an application for an order
otherwise ordering.

1722 Costs—solicitors’ costs generally

(1) For assessing costs under this part, unless the court otherwise orders,
a solicitor is entitled to charge, and be allowed, the costs under the
prescribed scale of costs for work done for or in a proceeding in the
court, multiplied by the prescribed percentage.
Note The Civil Law (Wrongs) Act 2002, s 181 (Maximum costs for claims of
$50 000 or less) limits costs in relation to a claim for personal injury
damages if $50 000 or less is recovered, if the cause of action arose after
1 January 2003 or the party and the party’s solicitor had an agreement
about costs before 1 January 2003 (see Civil Law (Wrongs) Act 2002, s
224 (expired)).

(2) The costs under the prescribed scale of costs for work done are
inclusive of any GST payable in relation to the work.
(3) However, the costs payable to a party are reduced by the amount of
any input tax credit for GST to which the party is entitled in relation
to the party’s costs.
(4) In this rule:
prescribed percentage means—
(a) for a proceeding in the Supreme Court—100%; or
(b) for a proceeding in the Magistrates Court—
(i) if the relevant amount is less than $10 000—33%; or

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 Civil proceedings generally Chapter 2
Costs Part 2.17
Entitlement to costs Division 2.17.2
Rule 1723

(ii) if the relevant amount is not less than $10 000 but less than
$25 000—67%; or
(iii) if the relevant amount is not less than $25 000 but less than
$40 000—80%; or
(iv) if the relevant amount is not less than $40 000 but less than
$50 000—90%; or
(v) if the relevant amount is not less than $50 000—100%.
relevant amount—see rule 1723.

1723 Costs—relevant amount for Magistrates Court

proceedings
(1) For a proceeding in the Magistrates Court in which a counterclaim is
not issued, the relevant amount for costs is—
(a) if judgment in the proceeding is given for the plaintiff and if the
defendant pays any amount to the plaintiff after the proceeding
starts—the amount for which judgment is given together with
the total of the amounts paid to the plaintiff after the proceeding
started; or
(b) if judgment in the proceeding is given for the plaintiff—the
amount for which judgment is given; or
(c) if judgment in the proceeding is given against the plaintiff, or
the plaintiff is otherwise required to pay the costs of the
proceeding—the amount for which the originating process in the
proceeding was issued.

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Chapter 2 Civil proceedings generally
Part 2.17 Costs
Division 2.17.2 Entitlement to costs
Rule 1723

(2) For a proceeding in the Magistrates Court in which a counterclaim is

issued, the relevant amount for costs is—
(a) if judgment in the proceeding and the counterclaim is given for
the plaintiff in the proceeding—
(i) for costs incurred before service on the plaintiff of the
counterclaim—the amount for which judgment is given;
and
(ii) for costs incurred after service on the plaintiff of the
counterclaim—the amount for which judgment is given or
the amount for which the counterclaim was issued,
whichever is the higher; or
(b) if judgment in the proceeding and the counterclaim is given for
the defendant in the proceeding—the amount for which the
originating process in the proceeding was issued or the amount
for which judgment on the counterclaim was given, whichever
is the higher; or
(c) if judgment in the proceeding is given for the plaintiff in the
proceeding and in the counterclaim is given for the defendant in
the proceeding—
(i) for costs payable to the plaintiff—the amount for which
judgment on the originating process was given; and
(ii) for costs payable to the defendant—the amount for which
judgment on the counterclaim was given; or
(d) if judgment in the proceeding is given against the plaintiff in the
proceeding and in the counterclaim is given against the
defendant in the proceeding—
(i) for costs payable by the plaintiff—the amount for which
the originating process in the proceeding was issued; and
(ii) for costs payable by the defendant—the amount for which
the counterclaim was issued.

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 Civil proceedings generally Chapter 2
Costs Part 2.17
Entitlement to costs Division 2.17.2
Rule 1724

(3) For a proceeding in the Magistrates Court in which an amount is not

claimed, the court may set an amount for the proceeding (the relevant
amount), having regard to the nature and complexity of the
proceeding.

1724 Solicitors’ costs—separate judgments against

defendants in Magistrates Court
(1) This rule applies to a proceeding in the Magistrates Court in which
there are 2 or more defendants.
(2) If judgment for or including costs in the proceeding is given
separately against 2 or more defendants, the costs must be assessed
once only against the defendants on the basis of the larger or largest
judgment.
(3) On the assessment of costs, costs incurred against any defendant must
be allowed against all of the defendants.
(4) The plaintiff may enforce a costs order under this rule against any
1 or more of the defendants against whom the order is made.
(5) However, the defendants are liable as between themselves to
contribute to the costs in proportion to the respective amounts for
which judgment was given against each defendant in the proceeding.

1725 Solicitors’ costs and determined fees—Supreme Court

judgment within Magistrates Court jurisdiction
(1) This rule applies to a proceeding in the Supreme Court if—
(a) the Magistrates court—
(i) would have had jurisdiction and power to hear and decide
the proceeding; or
(ii) would, apart from the amount claimed, have had
jurisdiction and power to hear and decide the proceeding;
and

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Chapter 2 Civil proceedings generally
Part 2.17 Costs
Division 2.17.2 Entitlement to costs
Rule 1725

(b) the plaintiff is entitled to the costs of the proceeding; and

(c) judgment (including judgment by consent) is entered for the
plaintiff in the proceeding for an amount (excluding costs) of
less than $175 000.
(2) The plaintiff is entitled to the following determined fee and costs
only—
(a) the amount of any Magistrates Court determined fee that the
plaintiff would have been entitled to recover had the proceeding
been started in the Magistrates Court;
(b) if the plaintiff is awarded an amount (excluding costs) of less
than $50 000—50% of the disbursements that the plaintiff
would have been entitled to recover in the Supreme Court had
the judgment been more than $250 000;
(c) if the plaintiff is awarded an amount (excluding costs) of
$50 000 or more, but less than $100 000—50% of the costs and
disbursements that the plaintiff would have been entitled to
recover in the Supreme Court had the judgment been more than
$250 000;
(d) if the plaintiff is awarded an amount (excluding costs) of
$100 000 or more, but less than $175 000—75% of the costs and
disbursements that the plaintiff would have been entitled to
recover in the Supreme Court had the judgment been more than
$250 000.
(3) Despite subrule (2), the court may order that the plaintiff is entitled
to a different amount for the costs and disbursements (including the
amount of any determined fee).
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this subrule.

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 Civil proceedings generally Chapter 2
Costs Part 2.17
Entitlement to costs Division 2.17.2
Rule 1726

(4) In this rule:

determined fee means the relevant determined fee under the Court
Procedures Act 2004, part 3 (Court and tribunal fees) in relation to a
proceeding in the Magistrates Court or the Supreme Court (and
includes a fee determined under any other territory law that applied
to a proceeding in that court before the commencement of that part).

1726 Costs—amendment of documents

(1) This rule does not apply to a party who amends a document because
of another party’s amendment or default.
(2) A party who amends a document must pay the costs of and caused by
the amendment, unless the court otherwise orders.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
otherwise ordering.

1727 Costs—party not interested in application

If a party appears on an application in a proceeding in which the party
has no interest, or ought not to attend, the party must not be allowed
the costs of the appearance, unless the court otherwise orders.
Note 1 Application in a proceeding is defined in r 6006.
Note 2 Pt 6.2 (Applications in proceedings) applies to an application for an order
otherwise ordering.

1728 Costs—for application reserved

If the court reserves costs of an application in a proceeding, the costs
reserved become costs in the cause, unless the court otherwise orders.
Note 1 Application in a proceeding is defined in r 6006.
Note 2 Pt 6.2 (Applications in proceedings) applies to an application for an order
otherwise ordering.

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Chapter 2 Civil proceedings generally
Part 2.17 Costs
Division 2.17.2 Entitlement to costs
Rule 1729

Note 3 If a proceeding is removed to the court from another court or tribunal, the
costs up to the time of the removal must be assessed as if the proceeding
had remained in the court from which it was removed (see r 1707
(Costs—proceeding removed to another court).

1729 Costs—extending or shortening time

A party applying for the extension or shortening of a time set under
these rules must pay the costs of the application or any order made on
or because of the application, unless the court otherwise orders.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
otherwise ordering.

1730 Costs—inquiry to find person entitled to property

The costs of an inquiry to find out who is entitled to a legacy, money,
share or other property must be paid out of the property, unless the
court otherwise orders.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
otherwise ordering.

1731 Costs—assessment of receiver’s costs

The costs of a receiver appointed in a proceeding may be assessed by
the registrar on the application of the receiver or a party to the
proceeding.

1732 Costs—trustee
(1) This rule applies to a party who sues or is sued as trustee.
(2) Unless the court otherwise orders—
(a) the party is entitled to have costs of the proceeding that are not
paid by someone else paid out of the fund held by the trustee;
and

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 Civil proceedings generally Chapter 2
Costs Part 2.17
Entitlement to costs Division 2.17.2
Rule 1733

(b) the costs must be assessed on a solicitor and client basis.

Note Pt 6.2 (Applications in proceedings) applies to an application for an order
otherwise ordering.

(3) However, the costs caused by an unsuccessful claim or unsuccessful

resistance to any claim to any property must not be paid out of the
fund, unless the court otherwise orders.

1733 Costs—solicitor appointed litigation guardian

(1) This rule applies if a solicitor is appointed by the court as litigation
guardian of a person with a legal disability.
(2) The court may direct that the solicitor’s costs incurred in exercising
the functions of litigation guardian must be paid—
(a) by all or any of the parties to the proceeding in which the
appointment is made; or
(b) out of a fund in court (if any) in which the person is interested.
Note Pt 6.2 (Applications in proceedings) applies to an application for
directions under this rule.

(3) The court may give directions for the payment of costs mentioned in
subrule (2).

1734 Costs—assessment costs

(1) The costs of a proceeding include the costs of preparing a bill of costs
and attending the assessment of costs.
(2) This rule is subject to rule 1809 (3) (a) (ii) (Costs—default assessment
if no objection to bill of costs).

1735 Costs—counsel’s advice and settling documents

The costs of a proceeding may include costs incurred for—
(a) the advice of counsel on pleadings, evidence or other matters in
a proceeding; and

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Chapter 2 Civil proceedings generally
Part 2.17 Costs
Division 2.17.2 Entitlement to costs
Rule 1736

(b) counsel drawing or settling any pleading or other document in a

proceeding that is appropriate for counsel to draw or settle.

1736 Costs—evidence
(1) The costs of a proceeding may include costs incurred in procuring
evidence, and the attendance of witnesses or the production of
documents.
(2) For this rule, the attendance of a witness includes an attendance at
any necessary conference with counsel before the trial and, if the
witness is an expert, qualifying to give evidence as an expert.
Examples of costs incurred
1 reasonable conduct money or witness expenses paid to a witness, whether or
not the witness attended under subpoena
2 reasonable expenses of preparing and proving plans, drawings, models or
photographs

1737 Costs—solicitor advocate

(1) This rule applies if a solicitor appears on a trial alone or instructed by
a partner or employee.
(2) The registrar must not allow the solicitor or partner a fee for preparing
a brief.
(3) The registrar may allow a single fee for preparing for the trial.

1738 Costs—retainer for counsel

In assessing costs on a party and party basis, the registrar must not
allow a fee paid to counsel as a retainer.

1739 Costs—counsel’s fees for applications

(1) If the court certifies the use of counsel on an application in a
proceeding, the registrar must allow counsel’s fees for the
application.
Note Application in a proceeding is defined in r 6006.

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 Civil proceedings generally Chapter 2
Costs Part 2.17
Entitlement to costs Division 2.17.2
Rule 1740

(2) However, if the court does not certify the use of counsel on the
application, the registrar must not draw any inference about allowing
counsel’s fees.

1740 Costs—fixed costs for winding-up application

(1) This rule applies to an application to wind up a company under
schedule 6, part 6.5 (Winding-up proceedings (including oppression
proceedings where winding-up is sought)) if—
(a) the court orders the company to be wound up; or
(b) the applicant discontinues the application on a condition that the
company pay an amount to the applicant.
(2) The applicant’s costs and disbursements (plus any filing and service
fees actually paid) must be allowed without assessment if the costs
and disbursements claimed (other than any filing and service fees
actually paid) are not more than the costs amount applying, from time
to time, under schedule 3, part 3.3 (Company winding-up).
(3) The costs allowed under subrule (2) are inclusive of any GST payable
in relation to the work.
(4) However, the costs payable to a party are reduced by the amount of
any input tax credit for GST to which the party is entitled in relation
to the party’s costs.
(5) The applicant’s costs and disbursements must be agreed or assessed
if the costs and disbursements claimed (other than any filing and
service fees actually paid) are more than the costs amount applying,
from time to time, under schedule 3, part 3.3 (Company winding-up).
Note See r 1702 (Costs—agreement about costs).

1741 Costs—fixed costs for enforcement order

(1) This rule applies to an application for an enforcement order under
part 2.18 (Enforcement) if the court makes an enforcement order.

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Chapter 2 Civil proceedings generally
Part 2.17 Costs
Division 2.17.3 Costs of party in proceeding
Rule 1750

(2) The enforcement creditor’s costs (plus any disbursements actually

paid) must be allowed without assessment if the costs claimed (other
than any disbursements actually paid) are not more than the costs
amount applying, from time to time, under—
(a) if the work was done by the enforcement creditor’s solicitor as
an agent for another solicitor—schedule 3, part 3.4, column 3;
or
(b) in any other case—schedule 3, part 3.4, column 4.
(3) The costs allowed under subrule (2) are inclusive of any GST payable
in relation to the work.
(4) However, the costs payable to the enforcement creditor are reduced
by the amount of any input tax credit for GST to which the
enforcement creditor is entitled in relation to the enforcement
creditor’s costs.
(5) The enforcement creditor’s costs and disbursements must be agreed
or assessed if the costs claimed (other than disbursements actually
paid) are more than the costs amount applying, from time to time,
under schedule 3, part 3.4 (Enforcement orders).
Note See r 1702 (Costs—agreement about costs).

Division 2.17.3 Costs of party in proceeding

1750 Application—div 2.17.3
This division applies to costs that, under a territory law or an order of
the court, are to be paid to a party to the proceeding by another party,
by a person who is not a party to the proceeding, or out of a fund.
Note A territory law includes these rules (see Legislation Act, s 98).

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 Civil proceedings generally Chapter 2
Costs Part 2.17
Costs of party in proceeding Division 2.17.3
Rule 1751

1751 Costs—assessed on party and party basis

(1) Unless a territory law or an order of the court otherwise provides, the
registrar must assess costs on a party and party basis.
Note 1 A territory law includes these rules (see Legislation Act, s 98).
Note 2 Pt 6.2 (Applications in proceedings) applies to an application for an order
otherwise providing.

(2) In assessing costs on a party and party basis, the registrar must allow
all costs that the registrar considers were fair and reasonable for the
attainment of justice or for enforcing or defending the rights of the
party whose costs are being assessed.

1752 Costs—assessed on solicitor and client etc basis

(1) The court may order costs to be assessed—
(a) on a solicitor and client basis; or
(b) on an indemnity basis; or
(c) on any other basis it considers appropriate.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(2) Without limiting subrule (1), the court may order that costs be
assessed on a solicitor and client basis if it orders payment of costs—
(a) out of a fund; or
(b) to a party who sues or is sued as a trustee; or
(c) of an application in a proceeding brought for—
(i) noncompliance with an order of the court; or
(ii) breach of an undertaking given to the court.

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Chapter 2 Civil proceedings generally
Part 2.17 Costs
Division 2.17.3 Costs of party in proceeding
Rule 1753

(3) In assessing costs on a solicitor and client basis, the registrar must
allow all costs reasonably incurred and of a reasonable amount,
having regard to—
(a) the costs allowable under rule 1722 (Costs—solicitors’ costs
generally); and
(b) charges ordinarily payable by a client to a solicitor for the work.
(4) In assessing costs on an indemnity basis, the registrar—
(a) must allow all costs other than costs unreasonably incurred (with
the party paying the costs having the onus of proving that the
costs were unreasonably incurred); and
(b) may have regard to any costs agreement between the party to
whom the costs are payable and the party’s solicitor.

1753 Costs—legal practitioner’s delay etc

(1) This rule applies to a legal practitioner acting for a party to a
proceeding if—
(a) the hearing of the proceeding, or an application in the
proceeding, did not proceed, and a party to the proceeding
incurred costs, because the practitioner—
(i) failed to attend the hearing either personally or by someone
on his or her behalf; or
(ii) failed to file a document; or
(iii) failed to deliver a document or thing necessary for use in
the hearing; or
(iv) failed to do anything else required to be done under these
rules or in accordance with the practice of the court; or
(b) a party to the proceeding incurred costs because of the delay,
misconduct or negligence of the practitioner.

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 Civil proceedings generally Chapter 2
Costs Part 2.17
Costs of party in proceeding Division 2.17.3
Rule 1754

(2) The court may order the legal practitioner—

(a) to repay to a party all or part of any costs ordered to be paid by
the party to another party because of the practitioner’s conduct;
or
(b) to pay the costs incurred by any party because of the
practitioner’s conduct.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(3) The court may, on its own initiative, order the legal practitioner not
to charge the practitioner’s client costs in relation to all or any part of
the proceeding if justice requires it.

1754 Costs—disallowance of costs for vexatious document etc

(1) The court may order that the costs of anything done, or any document
prepared or used, in a proceeding be disallowed completely or partly
if it considers—
(a) for something done—any of the following:
(i) that doing the thing was, completely or partly, improper,
vexatious or unreasonable;
(ii) that the thing was done because of misconduct or
negligence;
(iii) that doing the thing caused unnecessary expense; or
(b) for a document—any of the following:
(i) that the document was, completely or partly, improper,
vexatious or unreasonable;
(ii) that the document was prepared or used because of
misconduct or negligence;
(iii) that the document was unnecessarily lengthy;

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Chapter 2 Civil proceedings generally
Part 2.17 Costs
Division 2.17.3 Costs of party in proceeding
Rule 1754

(iv) if there is an approved form for a document—that the

document substantially departs from the approved form.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
or direction under this rule.

(2) The court may direct the registrar to consider anything done, or any
document prepared or used, in a proceeding, and to disallow,
completely or partly, the costs of the thing or document, or to assess
costs as a lump sum, if the registrar considers—
(a) for something done—any of the following:
(i) that doing the thing was, completely or partly, improper,
vexatious or unreasonable;
(ii) that the thing was done because of misconduct or
negligence;
(iii) that doing the thing caused unnecessary expense; or
(b) for a document—any of the following:
(i) that the document was, completely or partly, improper,
vexatious or unreasonable;
(ii) that the document was prepared or used because of
misconduct or negligence;
(iii) that the document was unnecessarily lengthy;
(iv) if there is an approved form for a document—that the
document substantially departs from the approved form.
Note Rule 6144 (Rejecting document—costs) provides that costs incurred by
a party in relation to a document rejected under div 6.3.3 may be
disallowed on assessment of the party’s costs.

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 Civil proceedings generally Chapter 2
Costs Part 2.17
Costs—registrar’s powers and discretion Division 2.17.4
Rule 1760

Division 2.17.4 Costs—registrar’s powers and

discretion
1760 Costs—registrar’s general powers
For assessing costs, the registrar may do any of the following:
(a) if satisfied that a stamped copy of a bill of costs cannot be served
within a reasonable time—dispense with service;
(b) direct a party to subpoena someone to attend a hearing, or
produce a document or thing, before the registrar;
(c) if satisfied there is or may be a conflict of interest between a
party’s legal practitioner and the party—require the party to be
represented by another legal practitioner;
(d) unless the court otherwise orders, extend or shorten the time for
taking any step in the assessment;
(e) administer an oath or receive an affirmation;
(f) examine witnesses;
(g) direct or require a party to produce documents;
(h) give directions about the conduct of the assessment;
(i) assess the costs in the absence of a party to the proceeding if the
party does not appear at the time set for the assessment;
(j) anything else the court directs.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
or direction under this rule.

1761 Costs—registrar’s discretion in assessing

In assessing costs, the registrar must consider the following:
(a) any other fees and allowances payable to the solicitor or counsel
for other items in the same proceeding;

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Chapter 2 Civil proceedings generally
Part 2.17 Costs
Division 2.17.5 Procedure for assessing costs
Rule 1800

(b) the nature and importance of the proceeding;

(c) the amount involved;
(d) the principle involved;
(e) the interest of the parties;
(f) the fund, estate, or person who is to pay the costs;
(g) the general conduct and cost of the proceeding;
(h) any other relevant circumstances.

Division 2.17.5 Procedure for assessing costs

1800 Costs—when bill of costs to be filed etc
(1) This rule applies if costs are to be paid to a party to a proceeding by
another party, by a person who is not a party to the proceeding, or out
of a fund—
(a) under—
(i) a territory law; or
(ii) an order of the court; or
(iii) a filed written agreement; but
(b) the party entitled to costs and the person liable for costs cannot
agree on the amount of costs to be paid.
Note A territory law includes these rules (see Legislation Act, s 98).

(2) The costs must be assessed by the registrar.

(3) The party entitled to costs must file a bill of costs.
(4) On receipt of the bill of costs, the registrar must write on the bill, and
a stamped copy of the bill, the day and time when the bill is to be
assessed.

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 Civil proceedings generally Chapter 2
Costs Part 2.17
Procedure for assessing costs Division 2.17.5
Rule 1801

(5) The party entitled to costs must serve a stamped copy of the bill on
each party liable to pay the costs not later than 6 weeks before the day
the costs are to be assessed.

1801 Costs—if costs out of fund bill to be sent to clients

(1) This rule applies if the costs of a proceeding are to be paid out of a
fund or property.
(2) The registrar may, before finishing the assessment, direct the solicitor
whose costs are to be assessed to send to all or any of the solicitor’s
clients, free of charge—
(a) a copy of the bill of costs or any part of it; and
(b) any statement directed by the registrar; and
(c) a letter telling the clients—
(i) the bill of costs is to be assessed by the registrar; and
(ii) the time set for the assessment.
(3) If the registrar gives a direction under subrule (2), the registrar may
suspend the assessment of the costs for the time the registrar considers
reasonable.

1802 Costs—content of bill of costs

A bill of costs must contain—
(a) the name and address for service of the solicitor whose costs are
to be assessed; and
Note Address for service is defined in the dictionary.

(b) each item of work claimed, or disbursement made, numbered

consecutively; and
(c) the date each item of work was done; and
(d) the number of the item in the prescribed scale of costs for each
item of work claimed; and

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Chapter 2 Civil proceedings generally
Part 2.17 Costs
Division 2.17.5 Procedure for assessing costs
Rule 1803

(e) a detailed statement of the work done by the solicitor, or the

solicitor’s employee or agent, for the party; and
(f) a detailed statement of the disbursements made; and
(g) the date each disbursement was made; and
(h) the costs claimed for each item of work done or disbursement
made.
Note See approved form 2.45 (Bill of costs) AF2006-290.

1803 Costs—failure to file and serve bill of costs

(1) If a party entitled to costs delays filing and serving a bill of costs, a
party liable to pay the costs may, by notice, require the party entitled
to costs to file and serve a bill of costs.
(2) If the party entitled to costs does not file and serve a bill of costs
before the end of 30 days after the day the notice under subrule (1) is
served, the registrar may direct the party entitled to costs to file and
serve a bill of costs within a time set by the registrar, having regard
to any representation made by the party not later than the end of the
30-day period.
(3) If the party does not comply with the registrar’s direction, the registrar
may—
(a) either—
(i) disallow the costs; or
(ii) allow costs at a nominal or other amount; and
(b) order the party to pay to another party costs incurred because of
the failure to comply with the direction.

1804 Costs—payment of disbursements

(1) If a party’s bill of costs includes an account that has not been paid,
the party may claim the amount as a disbursement.

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 Civil proceedings generally Chapter 2
Costs Part 2.17
Procedure for assessing costs Division 2.17.5
Rule 1805

(2) The registrar may allow the amount as a disbursement only if it is

paid before the registrar issues a certificate of assessment under
rule 1835 (Costs—registrar’s certificate of assessment).
(3) Subrule (2) does not apply to counsel’s fees properly incurred by the
party in the proceeding.

1805 Costs—professional charges and disbursements

(1) If a bill of costs includes a charge for work done by a solicitor
practising in the ACT and acting as agent for a party’s solicitor, the
charge must be shown as a professional charge, not as a disbursement.
(2) The registrar may assess and allow a charge mentioned in subrule (1)
even though it is not paid before the assessment.
(3) If a bill of costs includes a charge for work done by a solicitor or
counsel practising outside the ACT, the charge must be shown as a
disbursement.
(4) If the registrar allows a charge mentioned in subrule (3) when
assessing costs, the amount the registrar allows must, as far as
practicable, be an amount appropriate in the place where the solicitor
or counsel practises.

1806 Costs—amendment and withdrawal of bill of costs

(1) The court may at any time, by order, allow a party to amend or
withdraw a bill of costs or order that a party file another bill of costs.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

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Chapter 2 Civil proceedings generally
Part 2.17 Costs
Division 2.17.5 Procedure for assessing costs
Rule 1807

(2) Unless the court otherwise orders, the amendment or withdrawal and
replacement of a bill of costs must be disregarded in deciding
whether—
(a) under rule 1834 (Costs—bill of costs reduced by 15% or more),
the bill of costs has been reduced by 15% or more on
assessment; or
Note If costs are payable out of a fund or estate, or out of the assets of a
company in liquidation, and the bill of costs is reduced by 15% or
more on assessment, the registrar must not allow the solicitor
whose costs are assessed the costs of preparing the bill or attending
the assessment, unless the registrar otherwise orders (see r 1834
(Costs—bill of costs reduced by 15%)).

(b) the amount of the assessed costs in the bill of costs is more than,
equal to or less than an offer mentioned in rule 1811 (Costs—
offer to settle).

1807 Costs—notice of objection to bill of costs

(1) A party on whom a bill of costs is served may, by notice, object to
any item in the bill.
(2) The notice of objection must—
(a) number each objection; and
(b) give the number of each item in the bill of costs to which the
party objects; and
(c) for each objection—briefly state the reasons for the objection
identifying any issue of law or fact that the objector considers
the registrar must consider to make a decision in favour of the
objector.
(3) The reasons for objection may be in abbreviated note form but must
be understandable without further explanation.

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 Civil proceedings generally Chapter 2
Costs Part 2.17
Procedure for assessing costs Division 2.17.5
Rule 1808

(4) If the same objection applies to consecutive or near consecutive items

in a bill of costs, the notice need not separately state the reasons for
objecting to each of the items.
(5) Also, if there are a number of associated items, the objection may be
in the form of an objection to a common issue related to the associated
items.
(6) The party objecting must file the notice and serve a stamped copy on
the party entitled to the costs not later than 14 days before the day the
bill of costs is to be assessed.

1808 Costs—assessment must be limited

The registrar must limit the assessment to the resolution of the matters
raised in the notice of objection and otherwise assess the costs under
rule 1809.

1809 Costs—default assessment if no objection to bill of costs

(1) This rule applies if the party liable for costs does not file a notice of
objection to the bill of costs.
(2) On proof that the bill of costs was served on the party liable for the
costs, the registrar must—
(a) assess the costs without considering each item and by allowing
the costs claimed in the bill of costs; and
(b) issue a certificate of assessment for the amount of the assessed
costs.
(3) However—
(a) despite subrule (2) (a)—
(i) the costs must be assessed subject to rule 1804 (Costs—
payment of disbursements); and

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Chapter 2 Civil proceedings generally
Part 2.17 Costs
Division 2.17.5 Procedure for assessing costs
Rule 1810

(ii) the costs of attending the assessment of costs (other than

attendances the registrar considers necessary) , and any
other anticipated costs included in the bill, are not
allowable; and
(b) subrule (2) (a) does not prevent the registrar correcting an
obvious error in the bill of costs or assessing the costs differently
in exceptional circumstances.

1810 Costs—setting aside default assessment

(1) On the application of the party liable for costs, the court may amend
or set aside a certificate of assessment issued under rule 1809 (2) (b).
Note Pt 6.2 (Applications in proceedings) applies to an application under this
rule.

(2) The application must be supported by—

(a) an affidavit explaining—
(i) the party’s failure to file a notice of objection to the bill of
costs; and
(ii) any delay; and
(b) a notice of objection under rule 1807, as an exhibit to the
affidavit.
(3) Rule 1808 (Costs—assessment must be limited) applies to any
reassessment of costs on an application made under this rule.
(4) The costs of an application under this rule are to be paid by the
applicant unless the court otherwise orders.

1811 Costs—offer to settle

(1) A party liable to pay costs may serve on the party entitled to the costs
a written offer to settle the costs.

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 Civil proceedings generally Chapter 2
Costs Part 2.17
Procedure for assessing costs Division 2.17.5
Rule 1811

(2) An offer to settle costs—

(a) must state it is made under this rule; and
(b) must be clear and unconditional; and
(c) must be for all of the person’s liability for costs (and any interest
claimed on the costs) in the proceeding to the party to whom it
is made; and
(d) may be served at any time after whichever of the following
applies, but at least 2 days before the day the bill of costs is to
be assessed:
(i) if costs are payable under an order—the day the order is
made;
(ii) if costs are not payable under an order—the day liability
for costs accrues.
(3) An offer to settle costs—
(a) cannot be withdrawn without the court’s leave; and
(b) does not lapse because the party to whom it is made rejects or
fails to accept it; and
(c) ends at the end of 14 days after the day it is made or when the
assessment of the bill of costs to which it relates starts
(whichever is the earlier).
Note Pt 6.2 (Applications in proceedings) applies to an application for leave.

(4) Except for rule 1812, a party must not disclose to the registrar the
amount of an offer to settle until the registrar has assessed all items
in the bill of costs, and decided all issues, other than the cost of the
assessment.

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Chapter 2 Civil proceedings generally
Part 2.17 Costs
Division 2.17.5 Procedure for assessing costs
Rule 1812

1812 Costs—acceptance of offer to settle

(1) An acceptance of an offer to settle must be in writing.
(2) If a party gives the registrar a copy of the offer and the acceptance of
the offer, the amount of the offer is taken to be assessed costs of the
proceeding.

1813 Costs—rejection of offer to settle

(1) This rule applies if a party entitled to costs does not accept an offer to
settle made under rule 1811 by a party liable to pay the costs.
(2) If the amount of the bill of costs allowed by the registrar, before
deciding the costs of the assessment, is equal to, or more than, the
amount of the offer, the party liable to pay the costs must pay the costs
of the assessment, unless the registrar otherwise orders.
(3) If the amount of the bill of costs allowed by the registrar, before
deciding the costs of the assessment, is less than the amount of the
offer, the party entitled to the costs must not recover the costs of the
assessment, but must pay the costs of the assessment of the party
liable for the costs, unless the registrar otherwise orders.
(4) For this rule, the costs of the assessment of a party are the costs that
have been, or will be, incurred by the party on and from the day the
offer to settle was served, and includes any fee determined under the
Court Procedures Act 2004, part 3 (Court and tribunal fees) for the
assessment.

1814 Costs—Calderbank offer to settle

(1) This rule applies if a party entitled to costs serves on the party liable
to pay the costs—
(a) a bill of costs; and
(b) not before the bill of costs is served—a written offer to settle the
costs.

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 Civil proceedings generally Chapter 2
Costs Part 2.17
Procedure on costs assessment Division 2.17.6
Rule 1830

(2) The offer to settle costs must state that, if the offer is not accepted and
the amount of the bill of costs allowed by the registrar for costs up to
the date of the offer is equal to, or more than, the amount of the offer,
the party entitled to the costs may apply to the court for an order that
the costs of the assessment be assessed on a basis other than a party
and party basis.
(3) A party must not disclose to the registrar the amount of an offer to
settle until the registrar has assessed all items in the bill of costs, and
decided all issues, other than the costs of the assessment.
(4) If the amount of the bill of costs allowed by the registrar for costs up
to the date of the offer is equal to, or more than, the amount of the
offer, the party entitled to costs may apply to the court for an order in
relation to the costs of the assessment.
Note 1 The court may order that costs be assessed on a basis other than a party
and party basis (see r 1752 (1) (b)).
Note 2 The registrar may exercise the jurisdiction of the court under
r 1752 (1) (b) (see r 6250 (2) (a) and r 6251 (2) (a), and sch 5, pt 5.1 and
pt 5.4)

Division 2.17.6 Procedure on costs assessment

1830 Costs—attendance of parties at assessment
(1) The registrar may give directions about—
(a) who must be served with a bill of costs; and
(b) who should attend or be represented when the registrar is
assessing costs.
(2) If the registrar considers a person’s attendance at an assessment is
unnecessary, the registrar may disallow the costs of the person’s
attendance.
(3) This rule does not prevent a person affected by an assessment
attending the assessment.

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Chapter 2 Civil proceedings generally
Part 2.17 Costs
Division 2.17.6 Procedure on costs assessment
Rule 1831

(4) If the registrar gives a direction under subrule (1) (a) and costs are
payable by a fund, the party entitled to costs must also serve a
notice—
(a) identifying the fund; and
(b) stating that the costs in the bill of costs are payable by the fund;
and
(c) stating when the costs are to be assessed; and
(d) containing any other information the registrar requires to be
included in the notice.

1831 Costs—notice of adjournment of assessment

(1) If an assessment is adjourned for any reason, the party with the
carriage of the assessment must give notice of the adjournment to any
solicitor or party served with the original bill of costs but not present
when the assessment was adjourned.
(2) This rule applies unless the registrar otherwise directs.

1832 Costs—delay before registrar etc

If, on an assessment before the registrar, a party or a legal practitioner
acting for a party, puts another party to any unnecessary or improper
expense or inconvenience because of neglect or delay, the registrar
may—
(a) order the first party to pay the costs, or part of the costs, of the
proceeding before the registrar to any party; or
(b) refuse to allow fees to which the practitioner would otherwise
be entitled.

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 Civil proceedings generally Chapter 2
Costs Part 2.17
Procedure on costs assessment Division 2.17.6
Rule 1833

1833 Costs—set off of costs

(1) If a party entitled to be paid costs is also liable to pay costs, the
registrar may—
(a) assess the costs the party is liable to pay, set off the amount
assessed against the amount the party is entitled to be paid, and
by order set the amount of the balance and by whom the balance
is payable; or
(b) decline to make an order for costs the party is entitled to be paid
until the party has paid the amount the party is liable to pay.
(2) Costs may be set off under subrule (1) even though a solicitor for a
party has a lien for costs of the proceeding.

1834 Costs—bill of costs reduced by 15% or more

(1) This rule applies if on the assessment of costs payable out of a fund
or estate, or out of the assets of a company in liquidation, the amount
of professional charges and disbursements is reduced by 15% or
more.
(2) The registrar must not allow the solicitor filing the bill of costs for
assessment any costs for preparing the bill of costs or attending the
assessment, unless the registrar otherwise orders.

1835 Costs—registrar’s certificate of assessment

(1) The registrar must issue a certificate of assessment for the amount at
which a bill of costs has been assessed.
Note See approved form 2.46 (Certificate of costs assessment) AF2006-291.

(2) However, the registrar must not sign the certificate of assessment
until the end of 14 days after the day the assessment is made, unless
the parties to the assessment agree.
Note An application for reconsideration may be filed within the 14-day period
(see r 1852 (Costs—procedure for reconsideration)).

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Chapter 2 Civil proceedings generally
Part 2.17 Costs
Division 2.17.7 Reconsideration and review of costs assessment
Rule 1836

(3) Subrule (2) does not apply if—

(a) costs are assessed under rule 1809 (Costs—default assessment
if no objection to bill of costs); or
(b) an offer to settle is accepted under rule 1812 (Costs—acceptance
of offer to settle).
(4) If a notice is filed under rule 1852 in relation to the assessment, the
registrar must not sign the certificate of assessment until after the
reconsideration procedure ends.
(5) However, if a notice is not filed under rule 1852 in relation to the
assessment, the registrar must sign and file the certificate of
assessment.
(6) The certificate of assessment is final when it is signed, sealed and
filed by the registrar, and operates as if the certificate were an order
of the court.

1836 Costs—interim certificates of assessment

The registrar may issue 1 or more interim certificates of assessment
in an assessment for any part of the assessed costs, without waiting
until a certificate of assessment can be issued for the full amount of
the assessed costs.

Division 2.17.7 Reconsideration and review of costs

assessment
1850 Application—div 2.17.7
This division does not apply to—
(a) an assessment under rule 1809 (Costs—default assessment if no
objection to bill of costs); or
(b) an interim assessment under rule 1836.

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 Civil proceedings generally Chapter 2
Costs Part 2.17
Reconsideration and review of costs assessment Division 2.17.7
Rule 1851

1851 Costs—application for reconsideration

(1) This rule applies if a party has objected under rule 1807 (Costs—
notice of objection to bill of costs) or attends an assessment and
objects to any decision of the registrar.
(2) The party may apply to the registrar in accordance with rule 1852 for
reconsideration of the decision.
(3) For this rule, the registrar does not make a decision on an item in a
bill of costs if no-one objected, or sought to object, to the item and
the registrar allows the item.

1852 Costs—procedure for reconsideration

(1) A party must apply for reconsideration of a decision of the registrar
under this part by notice given to the registrar.
Note See approved form 2.47 (Notice for reconsideration of costs assessment)
AF2006-292.

(2) The notice must be filed not later than 14 days after the day the
assessment was made.
(3) The applicant must file with, or include in, the notice a statement of
objection.
(4) The statement of objection must—
(a) give the number of each item in the bill of costs to which the
decision objected to relates; and
(b) for each objection—briefly state the reasons for the objection
identifying any issue of law or fact the applicant considers the
registrar must consider to make a decision in favour of the
applicant.
(5) The applicant must, not later than 3 days after the day the notice and
statement of objection are filed, serve a stamped copy of the notice
and statement on any other party who attended the assessment.

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Chapter 2 Civil proceedings generally
Part 2.17 Costs
Division 2.17.7 Reconsideration and review of costs assessment
Rule 1853

(6) If the applicant is the party liable to pay the costs, the applicant must
not include in the statement of objection any objection not previously
taken or sought to be taken.

1853 Costs—reply to objection on reconsideration

(1) If a party to an assessment is served with a notice and statement of
objection under rule 1852, the party may file a reply to the statement
of objection.
Note See approved form 2.48 (Reply to statement of objection for costs
assessment) AF2006-293.

(2) The reply must state specifically any issue of law or fact that the party
filing the reply considers the registrar must consider to make a
decision in favour of the party.
(3) The party must serve a stamped copy of the reply on the party who
applied for reconsideration.
(4) The reply must be filed and served not later than 14 days after the day
the statement of objection is served.

1854 Costs—reconsideration of registrar’s assessment

(1) If a party files a notice and statement under rule 1852 (Costs—
procedure for reconsideration), the registrar must—
(a) reconsider a decision objected to having regard to the statement
of objection and any reply filed under rule 1853; and
(b) give reasons for the decision on reconsideration; and
(c) issue a certificate of assessment in accordance with the decision
on reconsideration.
(2) Subject to rule 1855, a certificate of assessment issued under
subrule (1) (c) is final.

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 Civil proceedings generally Chapter 2
Costs Part 2.17
Reconsideration and review of costs assessment Division 2.17.7
Rule 1855

1855 Costs—review by court

(1) A party dissatisfied with the decision of the registrar on
reconsideration under rule 1854 may apply to the court to review the
decision.
(2) The application must—
(a) give the number of each item in the bill of costs to which the
decision objected to relates; and
(b) state briefly, but specifically, the grounds for objecting to the
decision; and
(c) state briefly the reasons for the grounds; and
(d) state the decision sought from the court in relation to each
objection.
(3) The party must file the application, and serve a stamped copy of it on
all other parties to the assessment, not later than 14 days after the day
the registrar made the decision on reconsideration under rule 1854.
(4) Unless the court otherwise orders, on the review a party must not—
(a) present evidence; or
(b) raise any ground of objection not stated in a statement of
objection or raised before the registrar.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
otherwise ordering.

(5) On the review, the court may—

(a) exercise all the powers of the registrar in relation to the items of
the bill of costs under objection; and
(b) amend or set aside the registrar’s decision; and
(c) return any item in the bill of costs to the registrar for
reconsideration, whether with or without directions to the
registrar; and

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Chapter 2 Civil proceedings generally
Part 2.17 Costs
Division 2.17.8 Security for costs
Rule 1900

(d) make any other order it considers appropriate.

(6) Unless the court otherwise orders, the review does not operate as a
stay of the registrar’s decision.

Division 2.17.8 Security for costs

1900 Security for costs—application and order
(1) On application by a defendant, the court may order the plaintiff to
give the security it considers appropriate for the defendant’s costs of
the proceeding.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(2) An application must be supported by an affidavit setting out the facts

relied on and the grounds on which the order is sought.

1901 Security for costs—when court may make order

The court may order a plaintiff to give security for costs under
rule 1900 only if satisfied—
(a) the plaintiff is a corporation and there is reason to believe the
plaintiff will not be able to pay the defendant’s costs if ordered
to pay them; or
(b) the plaintiff is suing for the benefit of someone else, rather than
for the plaintiff’s own benefit, and there is reason to believe the
plaintiff will not be able to pay the defendant’s costs if ordered
to pay them; or
(c) the plaintiff’s address is not stated, or is misstated, in the
originating process, and there is reason to believe that the failure
to state an address, or the misstatement of the address, was made
with intention to deceive; or

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 Civil proceedings generally Chapter 2
Costs Part 2.17
Security for costs Division 2.17.8
Rule 1902

(d) the plaintiff has changed address since the start of the
proceeding and there is reason to believe this was done to avoid
the consequences of the proceeding; or
(e) the plaintiff is ordinarily resident outside Australia; or
(f) the plaintiff is, or is about to depart Australia to become,
ordinarily resident outside Australia and there is reason to
believe the plaintiff has insufficient fixed and permanent
property in Australia available for enforcement to pay the
defendant’s costs if ordered to pay them; or
(g) a territory law authorises the order to be made; or
Note A territory law includes these rules (see Legislation Act, s 98).

(h) the justice of the case requires the order to be made.

1902 Security for costs—discretionary factors

(1) In deciding whether to make an order for security for costs under
rule 1900, the court may have regard to any of the following matters:
(a) the means of the people standing behind the proceeding;
(b) the prospects of success or merits of the proceeding;
(c) the genuineness of the proceeding;
(d) for rule 1901 (a)—the corporation’s lack of financial resources;
(e) whether the plaintiff’s lack of financial resources is attributable
to the defendant’s conduct;
(f) whether the plaintiff is effectively in the position of a defendant;
(g) whether an order for security for costs would be oppressive;
(h) whether an order for security for costs would stop or limit the
progress of the proceeding;
(i) whether the proceeding involves a matter of public importance;

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Chapter 2 Civil proceedings generally
Part 2.17 Costs
Division 2.17.8 Security for costs
Rule 1903

(j) whether there has been an admission or payment into court;

(k) whether delay by the plaintiff in starting the proceeding has
unfairly prejudiced the defendant;
(l) whether an order for costs made against the plaintiff would be
enforceable within the jurisdiction;
(m) the estimated costs of the proceeding.
(2) This rule does not limit the matters to which the court may have
regard.

1903 Security for costs—way security given

(1) If the court orders the plaintiff to give security for costs, the security
must be given for the amount, in the form, at the time the court directs.
Note Rule 6901 (Orders may be made on conditions) provides that the court
may make an order under these rules on any conditions it considers
appropriate.

(2) If the court does not state the form of security to be given—
(a) the security must be given in a form satisfactory to the registrar;
and
(b) the registrar’s approval of the form of security must be written
on the order before it is issued.
(3) After giving the security, the plaintiff must serve on the defendant
notice of the time when, and the way, the security was given.

1904 Security for costs—effect of order

(1) This rule applies if the court orders the plaintiff to give security for
costs.
(2) The time set by these rules or by an order of the court for another
party to take a step in the proceeding does not run until security is
given.

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 Civil proceedings generally Chapter 2
Costs Part 2.17
Security for costs Division 2.17.8
Rule 1905

(3) If security is not given under the order—

(a) the proceeding is stayed as far as it concerns steps to be taken
by the plaintiff; and
(b) the court may, on the defendant’s application, dismiss all or part
of the proceeding.

1905 Security for costs—setting aside or amending order

The court may, in special circumstances, amend or set aside an order
made under this division.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

1906 Security for costs—finalising security

(1) This rule applies if, in a proceeding, security for costs has been given
by a party under an order made under this division.
(2) If judgment is given requiring the party to pay all or part of the costs
of the proceeding or any application in the proceeding, the security
may be applied in satisfaction of the costs.
(3) However, the security must be discharged—
(a) if a judgment is given and the judgment does not require the
party to pay all or part of the costs of the proceeding or any
application in the proceeding; or
(b) if the court orders the discharge of the security; or
(c) if the party entitled to the benefit of the security agrees to its
discharge; or
(d) in relation to the balance after costs have been satisfied under
subrule (2).
Example
A security given by a payment into court is discharged by payment of the security
out of court to the party who made the payment.

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Chapter 2 Civil proceedings generally
Part 2.17 Costs
Division 2.17.9 Miscellaneous—pt 2.17
Rule 1920

Division 2.17.9 Miscellaneous—pt 2.17

1920 Liquidator, guardian or manager—accounts
Division 2.9.5 (Receivers) applies in relation to the accounts of a
liquidator, guardian or manager, with any necessary changes, in the
same way as it applies to a receiver’s accounts.

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement—general Division 2.18.1
Rule 2000

Part 2.18 Enforcement

Division 2.18.1 Enforcement—general
2000 Definitions—pt 2.18
In this part:
account, for a financial institution, includes—
(a) a deposit account or withdrawable share account; and
(b) any record of deposit or subscription for withdrawable shares;
and
(c) a loan account that has a credit balance.
charging order—see rule 2401.
Note This definition also applies outside this part.

debt redirection order—see rule 2301 (1).

Note This definition also applies outside this part.

defendant, for division 2.18.17 (Enforcement—arrest warrants for

absconding defendants)—see rule 2551.
earnings, of an enforcement debtor, means any of the following that
are owing or accruing to the debtor:
(a) wages or salary, including, for example, any allowance, bonus,
commission, fee, overtime pay or other amount received under
a contract of employment;
(b) an amount that, although not payable under a contract of
employment, is analogous to or in the nature of wages or salary,
including, for example, an amount received under a contract for
services;

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.1 Enforcement—general
Rule 2000

(c) any other amount received, or the value of any benefit gained,
as compensation for services or profit arising from a contract of
employment, contract for services or position;
(d) a pension, benefit or similar payment;
(e) an annuity;
(f) an amount payable instead of leave;
(g) retirement benefit.
earnings redirection order—see rule 2350.
Note This definition also applies outside this part.

employer, of an enforcement debtor, means a person who, as

principal, rather than as employee or agent, pays, or is likely to pay,
earnings to the enforcement debtor.
Note This term applies to the Territory as an employer (see Legislation Act,
s 121 (Binding effect of Acts)).

enforceable money order, of the court, means—

(a) a money order of the court; or
(b) a money order of another court or tribunal filed or registered,
under a territory law or a law of the Commonwealth, in the court
for enforcement.
Note 1 A territory law includes these rules (see Legislation Act, s 98).
Note 2 This definition also applies outside this part.

enforceable non-money order, of the court, means—

(a) a non-money order of the court; or
(b) a non-money order of another court or tribunal filed or
registered, under a territory law or a law of the Commonwealth,
in the court for enforcement.
Note A territory law includes these rules (see Legislation Act, s 98).

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement—general Division 2.18.1
Rule 2000

enforcement creditor, for an enforceable money order of the court,

means—
(a) the person entitled to enforce the money order; or
(b) the person to whom the benefit of part of the money order has
passed by way of assignment or in another way.
Note This definition also applies outside this part.

enforcement debtor, for an enforceable money order of the court,

means the person required to pay an amount under the money order.
Note This definition also applies outside this part.

enforcement hearing subpoena means a subpoena issued under

rule 2103.
enforcement hearing warrant—see rule 2110 (2).
enforcement officer means the sheriff, a sheriff’s officer or a bailiff.
Note This definition also applies outside this part.

enforcement order, of the court—

(a) means an order of the court made under this part to enforce an
enforceable money order or non-money order; and
(b) includes an order mentioned in rule 2001 (3), but, to remove any
doubt, does not include an instalment order.
Note This definition also applies outside this part.

exempt property means property that is not divisible among the

creditors of a bankrupt under the relevant bankruptcy law as in force
from time to time and, for the enforcement debtor for an enforceable
money order of the court, includes property of the enforcement debtor
to which an order under rule 2202 (1) (Seizure and sale order—
additional exempt property) applies.
fourth person, for division 2.18.7 (which is about regular redirections
from financial institutions)—see rule 2330.

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.1 Enforcement—general
Rule 2000

instalment order—see rule 2150 (1).

instalment order agreement—see rule 2157.
Note This definition also applies outside this part.

money order means an order of a court or tribunal, or part of an order

of a court or tribunal, for the payment to a person (but not into court)
of an amount, including an amount for damages, whether or not the
amount is or includes an amount for interest or costs.
Note 1 Order is defined in the dictionary to include judgment (see also
def made).
Note 2 This definition also applies outside this part.

non-money order means an order of a court or tribunal, or part of an

order of a court or tribunal, for a form of relief other than the payment
of an amount, whether or not the amount includes an amount for costs.
Note This definition also applies outside this part.

officer, of a corporation, includes a former officer of the corporation.

order debt, for an enforceable money order of the court, means the
amount payable under the money order, and includes any amount
payable under these rules without the need for an order.
order for delivery of possession of land—see rule 2451.
Note This definition also applies outside this part.

order for seizure and delivery of goods—see rule 2460.

Note This definition also applies outside this part.

order for seizure and detention of property—see rule 2470.

Note This definition also applies outside this part.

partner includes a former partner.

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement—general Division 2.18.1
Rule 2000

plaintiff, for division 2.18.17 (Enforcement—arrest warrants for

absconding defendants)—see rule 2551.
principal officer, of a corporation, means a person who is or has
been—
(a) the chair, or president, (however described) of the governing
body of the corporation; or
(b) the general manager, chief executive officer, or other person,
(however described) having general management of the affairs
of the corporation; or
(c) the secretary, treasurer, or other person, (however described)
having the general function of accepting correspondence for the
corporation.
regular deposit, for division 2.18.7 (which is about regular
redirections from financial institutions)—see rule 2330.
regular redirection order—see rule 2332.
Note This definition also applies outside this part.

security interest—see rule 2401.

seizure and sale order—see rule 2200.
Note This definition also applies outside this part.

senior officer, of a corporation, includes the principal officer of the

corporation and anyone else who (whether alone or with others) has
or has had powers of management, direction or control of the
corporation.
third person, for division 2.18.6 (which is about debt redirection
orders generally)—see rule 2300.
Note The Territory may be a third person (see Legislation Act, s 121 (Binding
effect of Acts)).

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.1 Enforcement—general
Rule 2001

2001 Enforcement orders generally

(1) To enforce an order (the original order) (but not an order for the
payment of money into court), a person entitled to enforce the original
order may obtain an enforcement order from the court.
Note Order is defined in the dictionary to include judgment (see also
def made).

(2) An enforcement order may contain any order directed to enforcing

the original order.
(3) Without limiting subrule (2), an enforcement order includes the
following orders:
(a) a seizure and sale order (see division 2.18.5);
(b) a debt redirection order (see division 2.18.6);
(c) a regular redirection order (see division 2.18.7);
(d) an earnings redirection order (see division 2.18.8);
(e) a charging order (see division 2.18.9);
(f) an order under division 2.18.10 relating to amounts or securities
in court;
(g) an order under division 2.18.11 appointing a receiver;
(h) an order for delivery of possession of land (see
division 2.18.13);
(i) an order for seizure and delivery of goods (see division 2.18.14);
(j) an order for seizure and detention of property (see
division 2.18.15);
(k) an order issuing an arrest warrant or an arrest and detention
warrant under division 2.18.16 (Contempt).

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement—general Division 2.18.1
Rule 2002

(4) An enforcement order may contain 2 or more orders directed to

enforcing the original order and may be made to enforce an original
order that is a money order and a non-money order.
(5) Without limiting rule 6901 (Orders may be made on conditions), an
enforcement order may be made on conditions about the payment of,
or giving security for, the estimated expenses of an enforcement
officer in enforcing the order.

2002 Enforcement—enforcement application is application in

original proceeding
An application to the court for an enforcement order in relation to an
enforceable money order or non-money order of the court is an
application in the proceeding in the court in which the money order
or non-money order was made, registered or filed.
Example
A person’s address for service in the proceeding in the court in which the money
order or non-money order was made, registered or filed is the person’s address for
service for an application to the court for an enforcement order in relation to the
money order or non-money order (unless the address for service is changed under
these rules).

2003 Enforcement—by or against non-party

(1) If an order is made in favour of, or obtained by, a person who is not a
party to the proceeding in which the order is made, the person may
enforce the order as if the person were a party.
(2) However, the person must not start a proceeding to enforce the order
unless the person gives the court an address for service.
Note Address for service is defined in the dictionary.

(3) If an order is made against a person who is not a party when the order
is made, the order may be enforced against the person as if the person
were a party.

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.1 Enforcement—general
Rule 2004

(4) If an order is made against a corporation that is not a party when the
order is made, a senior officer of the corporation is liable to the same
process of enforcement as if the corporation were a party.

2004 Enforcement—amount recoverable

(1) The costs of enforcement of an order are recoverable as part of the
order.
Note The costs of enforcement may be allowed without assessment if the costs
(other than disbursements incurred) are not more than the amount in sch
3, pt 3.4.

(2) Interest on an order debt is recoverable as part of the money order.

2005 Enforcement—separate enforcement for costs

A person entitled to enforce an order with costs may enforce the order
and, when the costs become payable, enforce payment of the costs
separately.

2006 Enforcement—order in partnership name

(1) An order against partners in the partnership name may be enforced
against 1 or more of the following:
(a) partnership property;
(b) a partner who filed a defence;
(c) a person who has admitted being a partner;
(d) a person who the court has decided is a partner;
(e) a person who has been individually served as a partner with the
originating process and who has not filed a defence.

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement—general Division 2.18.1
Rule 2007

(2) On application by a person entitled to enforce an order against

partners in the partnership name, the court may amend the order to
make it an order against the people who were partners when the cause
of action arose.
Note Pt 6.2 (Applications in proceedings) applies to an application for an
amendment or leave under this rule.

(3) On application by a person entitled to enforce an order against

partners in the partnership name, the court may give leave for the
order to be enforced against someone else who is liable to satisfy the
order.
(4) The application for leave must be served on the person against whom
the order is sought to be enforced.
Note Rule 6008 (3) (Application in proceeding—filing and service) applies to
service of the application for leave.

(5) If, on the hearing of the application for leave, the person denies
liability, the court may decide liability summarily or give directions
about how liability is to be decided.

2007 Enforcement—against property of partnership

An enforcement order must not be made against property of a
partnership except to enforce an order against the partnership.

2008 Enforcement—against property of business

(1) This rule applies if—
(a) a proceeding is brought against a person under a business name;
and
(b) rule 291 (Proceeding in business name if unregistered etc)
applies to the business name.
(2) An order in the proceeding may be enforced against any property of
the person.

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.1 Enforcement—general
Rule 2009

(3) The court may amend an order made in the proceeding to make it an
order against the person.
Note Pt 6.2 (Applications in proceedings) applies to an application to amend
an order.

2009 Enforcement—enforcement of Supreme Court order in

Magistrates Court
(1) If the amount payable under an enforceable money order of the
Supreme Court is within the jurisdiction of the Magistrates Court, the
order may be enforced in the Magistrates Court.
(2) To enforce the order, the order must be filed in the Magistrates Court.
(3) Unless the Supreme Court otherwise orders, the costs of the order’s
enforcement, whether in the Supreme Court or the Magistrates Court,
must be assessed on the basis of work done for or in relation to a
proceeding in the Magistrates Court.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
otherwise ordering.

2010 Enforcement—enforcement of Magistrates Court order in

Supreme Court
(1) On application by the enforcement creditor for an enforceable money
order of the Magistrates Court, the Magistrates Court may give the
enforcement creditor a certificate of—
(a) the money order; and
(b) the amount owing under the money order (including any amount
payable for interest and costs).
(2) An application under subrule (1) is made by filing in the Magistrates
Court—
(a) a draft certificate; and
(b) an affidavit in support of the application that contains sufficient
information to enable the court to give the certificate.

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement—general Division 2.18.1
Rule 2010A

(3) Part 6.2 (Applications in proceedings) does not apply to the

application.
(4) The draft certificate and affidavit need not be served on anyone unless
the court otherwise orders on its own initiative.
(5) Unless the court otherwise orders on its own initiative, the application
must be dealt with without a hearing and in the absence of the parties.
(6) The court may give a certificate under subrule (1) only if—
(a) a seizure and sale order previously made for the order has been
returned completely or partly unsatisfied; or
(b) the court otherwise considers it appropriate.
(7) If the certificate is given, no further action may be taken in the
Magistrates Court to enforce the money order.
(8) However, if the certificate, and an affidavit in support setting out the
amount owing under the money order and relevant details about
interest and costs, is filed in the Supreme Court, final judgment may
be entered in the Supreme Court in favour of the enforcement creditor
for—
(a) the amount stated in the certificate as the amount owing under
the money order; and
(b) any interest and costs up to the day of entry of final judgment.
(9) Subrule (8) does not authorise the giving of interest on interest.
(10) A judgment entered under subrule (8) may be enforced as if it were a
money order made by the Supreme Court.

2010A Enforcement—certificate of registration of enforceable

order under Service and Execution of Process Act
(1) This rule applies in relation to an application for the registration in a
court of an enforceable order of another court or tribunal under the
Service and Execution of Process Act 1992 (Cwlth), section 105.

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.1 Enforcement—general
Rule 2010A

(2) An application under subrule (1) is made by filing in the court—

(a) a copy, sealed by the court or tribunal that made the order, of the
enforceable order, or a fax of the copy so sealed; and
(b) a draft certificate with a copy of the sealed copy of the order
attached.
(3) Part 6.2 (Applications in proceedings) does not apply to the
application.
(4) A copy of the enforceable order and draft certificate need not be
served on anyone unless the court otherwise orders on its own
initiative.
(5) The court may give the applicant a sealed copy of the certificate of
registration of the enforceable order, with a copy of the enforceable
order sealed by the registering court attached.
Note See approved form 2.85 (Certificate of registration of enforceable order)
AF2008-120.

(6) If a fax is filed under subrule (2) (a)—

(a) the copy, sealed by the court or tribunal that made the order, of
the enforceable order must be filed with the court not later than
7 working days after the day the fax is filed; and
(b) if the copy so sealed is not filed with the court within the 7-day
period, a proceeding to enforce the enforceable order must not
be started or continued until the copy is filed or unless the court
gives leave.
Note Pt 6.2 (Applications in proceedings) applies to an application for
leave.

(7) An application for leave to start, or continue, an enforcement

proceeding need not be served on anyone unless the court otherwise
orders on its own initiative.

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement—general Division 2.18.1
Rule 2010B

(8) In this rule:

certificate of registration, of an order, means the certificate given
under subrule (5), signed by the registrar, certifying that the
enforceable order is registered.
enforceable order means—
(a) an enforceable money order; or
(b) an enforceable non-money order.
working day means a day that is not—
(a) a Saturday or Sunday; or
(b) a public holiday or bank holiday.

2010B Enforcement—assessment of costs for certificate of

registration
(1) This rule applies if the court registers an enforceable order of another
court under rule 2010A.
(2) The applicant’s costs and disbursements (plus any filing and service
fees actually paid):
(a) must be allowed without assessment if the costs and
disbursements claimed (other than any filing and service fees
actually paid) are not more than the costs amount applying, from
time to time, under schedule 3, part 3.5 (Certificate of
registration); and
(b) must be agreed or assessed if the costs and disbursements
claimed (other than any filing and service fees actually paid) are
more than the costs amount applying under schedule 3, part 3.5.
Note See r 1702 (Costs—agreement about costs).

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.1 Enforcement—general
Rule 2011

2011 Enforcement—demand for compliance unnecessary

(1) It is not necessary to demand compliance with an order before starting
an enforcement proceeding for the order.
(2) If, under a territory law or a court order, an order must be served on
a person before the order may be enforced against the person, the
order may be served without a demand for compliance.
Note A territory law includes these rules (see Legislation Act, s 98).

2012 Enforcement—when leave required

(1) A person entitled to enforce an order requires the court’s leave to start
an enforcement proceeding in the following circumstances:
(a) if the proceeding would be started more than 6 years after the
day the order is made;
(b) if the order is against any of the assets of a deceased person
coming to the hands of an executor or administrator after the
order was made;
(c) if the order is subject to a condition;
Note See r 2014 (Enforcement—conditional orders).

(d) if enforcement is sought as mentioned in rule 2006 (3)

(Enforcement—order in partnership name);
(e) for a money order—if there has been any change in the
enforcement creditor or enforcement debtor, whether by
assignment, death or otherwise;
(f) if the order is for delivery of possession of land and a person
other than the person against whom the original order for
possession of land was made is in possession of the land or part
of it;
Note See r 2452 (2) (Orders for delivery of possession of land—
preconditions).

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement—general Division 2.18.1
Rule 2012

(g) if the order is against property in the hands of a receiver

appointed by the court;
(h) if the order is against property in the hands of a sequestrator;
(i) if the order is against a future asset of the enforcement debtor;
(j) if the proceeding is an application for an enforcement order in
aid of another enforcement order.
Note The Limitation Act 1985, s 14 makes provision for a 12 year limitation
period in relation to the bringing of an action on a cause of action on a
judgment.

(2) An application for leave to start an enforcement proceeding need not

be served on anyone unless the court otherwise orders on its own
initiative.
Note Pt 6.2 (Applications in proceedings) applies to an application for leave.

(3) An application for leave to start an enforcement proceeding must be

accompanied by an affidavit in support of the application.
(4) The affidavit in support must state—
(a) that the order has not been fully complied with; and
(b) the extent (if any) to which the order has been partly complied
with; and
(c) that the applicant is entitled to enforce the order; and
(d) that the person against whom enforcement is sought is liable to
comply with the order; and
(e) if it is more than 6 years since the day the order was made—the
reasons for the delay; and
(f) for a money order—
(i) the amount (including any interest and costs) owing on the
day the affidavit is made (the affidavit date); and

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.1 Enforcement—general
Rule 2013

(ii) the daily amount of any interest that, subject to any future
payment under the order, will accrue after the affidavit
date; and
(iii) if there has been a change in an enforcement creditor or
enforcement debtor—the change that has happened.
(5) The affidavit must be sworn not earlier than 2 days before the day the
application for leave is filed in the court.

2013 Enforcement—stay
(1) On application by the enforcement debtor or other person liable to
comply with an enforceable money order or non-money order of the
court or by someone else affected by the order, the court may—
(a) by order, stay the enforcement of all or part of the order,
including because of facts arising or discovered after the order
was made; and
(b) make the orders it considers appropriate, including, for a money
order, an instalment order.
Note 1 Rule 2150 (Instalment order—making) provides for the making of
instalment orders.
Note 2 See also r 2208 (Seizure and sale order—application for instalment order
stays sale of seized property).
Note 3 Pt 6.2 (Applications in proceedings) applies to an application under this
rule.

(2) The application may be made whether or not an enforcement order

has already been made for the enforceable money order or non-money
order.
(3) The application must be accompanied by an affidavit in support of
the application.
(4) Unless the court otherwise orders, the filing of the application does
not stay the operation of the order.

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement—general Division 2.18.1
Rule 2014

2014 Enforcement—conditional orders

(1) An order of the court subject to a condition may be enforced only if
the condition is satisfied.
Note 1 Order is defined in the dictionary to include judgment (see also
def made).
Note 2 The court’s leave is also required (see r 2012 (1) (c)).

(2) Unless the court otherwise orders, if a person fails to satisfy a

condition the court has included in an order, the person entitled to the
benefit of the order loses the benefit.
(3) The court may order otherwise for subrule (2) on an application made
before or after the time to satisfy the condition has passed.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
otherwise ordering.

(4) If subrule (2) applies to an order, then, unless the court otherwise
orders, any interested person may take any steps—
(a) that are justified by the order; or
(b) that might have been taken if the order had not been made.

2015 Enforcement—service of order and related information

(1) Before an enforcement proceeding can be started for an enforceable
money order or non-money order of the court, a sealed copy of the
order and a notice in accordance with subrule (2) must be served on
the enforcement debtor or other person liable to comply with the
order.
Note See approved form 2.49 (Notice about Court order and enforcement
options) AF2015-32.

(2) The notice mentioned in subrule (1) must include the following:
(a) details of the order, including whether it was obtained by
default;

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.2 Enforcement orders—general
Rule 2050

(b) a summary of the enforcement options available to the

enforcement creditor or other person entitled to enforce the
order;
(c) a summary of the options available to the enforcement debtor or
other person liable to comply with the order, including—
(i) if the order was obtained by default—that application can
be made to set the order aside; and
(ii) for a money order—that application can be made for an
instalment order;
(d) information about where the enforcement debtor or other person
liable to comply with the order may be able to obtain legal or
financial advice and assistance in relation to the order.
(3) An enforcement proceeding may not be started before the end of
7 days after the day the copy of the order and the notice are served on
the enforcement debtor.
(4) In this rule:
order includes a certificate of registration given under rule 2010A.

Division 2.18.2 Enforcement orders—general

2050 Enforcement orders—content and issue
(1) An enforcement order must state—
(a) for a money order—
(i) the name of the enforcement debtor; and
(ii) the amount recoverable under the order; and
(iii) for an enforcement order to which rule 2052 applies—the
date the order ends; and
Note Certain enforcement orders must end not later than 1 year
after they are made (see r 2052 (2)).

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement orders—general Division 2.18.2
Rule 2050

(b) for a non-money order—what is authorised under the order; and

(c) any other details required under these rules.
Note For other details required under these rules, see the following rules:
• r 2333 (Regular redirection order—content)
• r 2355 (Earnings redirection order—content).

(2) For subrule (1) (a) (ii), the amount recoverable must include—
(a) unless the court otherwise orders—
(i) the unpaid costs of any previous enforcement proceeding
for the same money order (including any amounts
recoverable under the Service and Execution of Process
Act 1992 (Cwlth)); and
(ii) the unpaid interest on those costs; and
Note Pt 6.2 (Applications in proceedings) applies to an application for
an order otherwise ordering.

(b) the costs relating to the enforcement order; and

(c) the amount of interest on the order debt.
(3) If the court makes any of the following enforcement orders, the
registrar must give a sealed copy of the order to an enforcement
officer to be enforced:
(a) a seizure and sale order;
(b) an order for delivery of possession of land;
(c) an order for seizure and delivery of goods;
(d) an order for seizure and detention of property;
(e) an order issuing an arrest warrant or arrest and detention warrant
under division 2.18.16 (Contempt).

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.2 Enforcement orders—general
Rule 2051

(4) If the court makes any of the following enforcement orders, the
registrar must give a sealed copy of the order to the enforcement
creditor to be enforced:
(a) a debt redirection order;
(b) a regular debt redirection order;
(c) an earnings redirection order.
(5) If the court makes either of the following enforcement orders, the
registrar must give a sealed copy of the order to the enforcement
creditor:
(a) a charging order;
(b) an order under division 2.18.10 relating to amounts or securities
in court.
(6) If the court makes an order under division 2.18.11 appointing a
receiver, the registrar must give a sealed copy of the order to the
receiver.

2051 Enforcement orders—application to set aside

(1) This rule applies if an enforcement order is made for an enforceable
money order or non-money order (the original order) of the court.
(2) On application by the enforcement debtor or other person liable to
comply with the original order or by someone else affected by the
enforcement order, the court may—
(a) set the enforcement order aside; and
(b) make the orders it considers appropriate, including, for an
enforceable money order, an instalment order.
Note 1 A person liable to comply with the original order may also seek a stay
under r 2013.
Note 2 Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement orders—general Division 2.18.2
Rule 2052

(3) Unless the court otherwise orders, the filing of the application does
not stay the operation of the enforcement order.

2052 Enforcement orders—duration and renewal of certain

enforcement orders given to enforcement officers
(1) This rule applies to the following enforcement orders:
(a) a seizure and sale order;
(b) an order for delivery of possession of land;
(c) an order for seizure and delivery of goods;
(d) an order for seizure and detention of property.
(2) The enforcement order remains in force for 1 year after the day it is
made unless the order states that it ends at an earlier time.
Note 1 A seizure and sale order may be extended under r 2222 (Seizure and sale
order—postponement of sale).
Note 2 The ending of a seizure and sale order under this rule does not affect any
agreement for sale etc entered into before the order ends (see r 2228
(Seizure and sale order—effect of ending of order on completion of sale
etc)).

(3) However, the order may be renewed for further periods of not longer
than 1 year at a time.
(4) An application for renewal of an enforcement order—
(a) must be made before the order ends; and
(b) is made by filing in the court—
(i) a request for the order to be renewed for a stated period of
not longer than 1 year; and
(ii) an affidavit setting out—
(A) the matters required to be included in the affidavit in
support of an application for an enforcement order of
that kind; and

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.2 Enforcement orders—general
Rule 2053

(B) the reasons why the order has not been enforced
during the period that the order has been in force.
(5) Part 6.2 (Applications in proceedings) does not apply to the
application.
(6) The request and affidavit need not be served on anyone unless the
court otherwise orders on its own initiative.
(7) Unless the court otherwise orders on its own initiative, an application
for renewal of an enforcement order must be dealt with without a
hearing and in the absence of the parties.
(8) If the court renews an enforcement order, the registrar must give a
sealed copy of the order as renewed to an enforcement officer to be
enforced.
(9) A renewed enforcement order must be stamped with the seal of the
court to show the period for which the order is renewed.
(10) The priority of a renewed enforcement order is decided according to
the date the enforcement order was originally made.
(11) The production of an enforcement order purporting to be stamped
with the seal of the court and showing the period for which the order
has been renewed is sufficient evidence for all purposes of the order
having been renewed for the period.

2053 Enforcement orders—return by enforcement officer

(1) The registrar may require an enforcement officer who is given an
enforcement order to enforce—
(a) to attach to a copy of the order a statement of the steps the
enforcement officer has taken under the order; and
(b) to send a copy of the order with the attached statement to the
person who obtained the order; and

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement orders—general Division 2.18.2
Rule 2054

(c) to file in the court a copy of the order with the attached
statement.
Note An enforcement officer may also be required to give a report under
r 2234 (Seizure and sale order—report by enforcement officer).

(2) A person who obtains a seizure and sale order that is given to an
enforcement officer to enforce may require the enforcement officer—
(a) to attach to a copy of the order a statement of the steps the
enforcement officer has taken under the order; and
(b) to send a copy of the order with the attached statement to the
person; and
(c) to file in the court a copy of the order with the attached
statement.

2054 Enforcement orders—priority

(1) The precise time an application for an enforcement order is made
must be written on the application by the registrar.
(2) If more than 1 application for an enforcement order against the same
person is made to the court, the court must make the orders in order
of the times written on the applications.
(3) The precise time an enforcement order is made must be written on the
order by the registrar.
(4) If more than 1 enforcement order against the same person is given to
an enforcement officer, the enforcement officer must enforce the
orders in order of the times written on the orders.
(5) In this rule:
precise time means the hour, day, month and year.

2055 Enforcement orders—payment under order

A payment under an enforcement order discharges the person making
the payment to the extent of the payment.

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.2 Enforcement orders—general
Rule 2056

2056 Enforcement orders—orders about enforcement

(1) The court may make the orders in aid of, or otherwise in relation to,
the enforcement of its orders that it considers appropriate.
(2) Without limiting subrule (1), the court may make the following
orders:
(a) an order authorising an enforcement officer to enter premises to
take possession of property under a seizure and sale order;
(b) an order prohibiting an enforcement officer from taking any
further action on an enforcement order;
(c) an order prohibiting anyone else from taking any further action,
either permanently or until a stated day, to enforce an order of
the court.
(3) The court’s powers under this rule are additional to its powers under
any other territory law.
Note 1 A territory law includes these rules (see Legislation Act, s 98).
Note 2 For other provisions about entry to premises, see r 2203 (Seizure and sale
order—entry, search and seizure powers if no consent) and r 2219
(Seizure and sale order—power of entry for auction of land).

2057 Enforcement orders—consecutive and concurrent orders

To remove any doubt, this part does not prevent the court—
(a) from making consecutive seizure and sale orders against the
same enforcement debtor, or making consecutive debt
redirection orders, regular redirection orders, earnings
redirection orders or charging orders in relation to the same
enforcement debtor, in relation to the same order debt; or

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—enforcement hearings Division 2.18.3
Rule 2058

(b) from making concurrent debt redirection orders, regular

redirection orders or earnings redirection orders against
different entities, or consecutive debt redirection orders, regular
redirection orders or earnings redirection orders against the
same entity, in relation to the same order debt.

2058 Enforcement orders—deceased enforcement debtor

If a money order is to be enforced against the estate of a deceased
enforcement debtor, only the assets of the estate are subject to the
enforcement.

Division 2.18.3 Enforcement of money orders—

enforcement hearings
2100 Enforcement hearing—application by enforcement
creditor
(1) An enforcement creditor for an enforceable money order of the court
may apply to the court for an enforcement hearing.
(2) However, unless the court otherwise orders, the enforcement creditor
may not apply to the court for an enforcement hearing if any of the
following orders is in force in relation to the enforceable money
order:
(a) an instalment order;
(b) a debt redirection order;
(c) a regular redirection order;
(d) an earnings redirection order.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
otherwise ordering.

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.3 Enforcement of money orders—enforcement hearings
Rule 2100

(3) An application under this rule for an enforcement hearing is made by

filing in the court—
(a) a draft order requiring the enforcement debtor to attend an
enforcement hearing; and
(b) an affidavit in support of the application.
Note See approved form 2.50 (Order to attend enforcement hearing)
AF2006-295.

(4) The affidavit in support must state—

(a) the date the money order was made; and
(b) the amount of the order debt; and
(c) the date and amount of each payment (if any) made under the
money order; and
(d) the costs incurred in previous enforcement proceedings in
relation to the money order; and
(e) the interest owing on the day the affidavit is made (the affidavit
date); and
(f) any other details necessary to work out the amount payable
under the order on the affidavit date and how the amount is
worked out; and
(g) the daily amount of any interest that, subject to any future
payment under the money order, will accrue after the affidavit
date; and
(h) the last-known address of the enforcement debtor; and
(i) if the enforcement creditor has conducted a company name
search or business name search in relation to the enforcement
debtor—the results of the search.
(5) Part 6.2 (Applications in proceedings) does not apply to the
application.

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—enforcement hearings Division 2.18.3
Rule 2101

(6) The affidavit and draft order need not be served on the enforcement
debtor unless the court otherwise orders on its own initiative.
(7) Unless the court otherwise orders on its own initiative, the application
must be dealt with without a hearing and in the absence of the parties.

2101 Enforcement hearing—otherwise than on enforcement

creditor’s application
(1) This rule applies if the enforcement creditor or enforcement debtor
for an enforceable money order of the court applies to the court for
any order under this part in relation to the money order.
(2) On application by the enforcement debtor by notice given to the court
or on its own initiative, the court may order that an enforcement
hearing be held to decide whether to make the order applied for.
Note See approved form 2.50 (Order to attend enforcement hearing)
AF2006-295.

(3) Part 6.2 (Applications in proceedings) does not apply to an

application by an enforcement debtor.

2102 Enforcement hearing—limit on number of applications

(1) An enforcement creditor may apply to the court for, and the court may
order, 2 or more enforcement hearings for an enforcement debtor,
whether in relation to the same order debt or different order debts.
(2) However, the enforcement creditor must not make more than
1 application for an enforcement hearing for the enforcement debtor
in relation to the same order debt within a 6-month period unless the
court gives leave.
Note Pt 6.2 (Applications in proceedings) applies to an application for leave.

(3) An application for leave must be accompanied by an affidavit in

support of the application.

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.3 Enforcement of money orders—enforcement hearings
Rule 2103

2103 Enforcement hearing—order for hearing etc

(1) If the court orders that an enforcement hearing be held, the court
must—
(a) set a date for the enforcement hearing; and
(b) by subpoena (an enforcement hearing subpoena), require the
addressee for the subpoena—
(i) to complete, swear and file a statement of the enforcement
debtor’s financial position in accordance with rule 2106;
and
(ii) to attend before the court, at the time and place stated in
the order—
(A) to answer questions and give information; and
(B) to produce the documents or other things (if any)
stated in the order.
Note 1 See approved form 2.51 (Enforcement hearing subpoena) AF2006-296.
Note 2 An enforcement hearing subpoena may direct the addressee for the
subpoena and the enforcement creditor to meet to attempt to settle
payment of the order debt (see r 2108 (Enforcement hearing—meeting of
parties)).

(2) The date set for the enforcement hearing must be at least 21 days after
the day the enforcement hearing subpoena is issued.
(3) To remove any doubt—
(a) the court may, by enforcement hearing subpoena, require 2 or
more people to attend before the court, at the same time and
place, in relation to an order debt; and
(b) part 6.9 (Subpoenas) applies to an enforcement hearing
subpoena with any necessary changes and any changes provided
by these rules.

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—enforcement hearings Division 2.18.3
Rule 2104

2104 Enforcement hearing—who may be directed to attend by

enforcement hearing subpoena
An enforcement hearing subpoena in relation to an enforcement
debtor may be directed to—
(a) the enforcement debtor; or
(b) if the enforcement debtor is a partnership (including an
incorporated limited partnership)—a partner or a person who
has or had the control or management of the partnership business
in the ACT; or
Note A partner includes a former partner (see r 2000).

(c) if the enforcement debtor is an incorporated association—a

member or former member of the committee, or a public officer
or former public officer, of the association; or
(d) if the enforcement debtor is a cooperative—a member or former
member of the board of directors, or a secretary or former
secretary, of the cooperative; or
(e) if the enforcement debtor is an owners corporation under the
Unit Titles Act 2001—an executive member, or former
executive member, of the executive committee of the owners
corporation; or
(f) if the enforcement debtor is a body corporate under the
Community Title Act 2001—a member or former member of the
committee of management, or a manager or former manager, of
the body corporate; or
(g) if the enforcement debtor is a corporation (including a
corporation mentioned in paragraphs (b) to (f))—any senior
officer of the corporation.

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.3 Enforcement of money orders—enforcement hearings
Rule 2105

2105 Enforcement hearing—service of enforcement hearing

subpoena
(1) An enforcement hearing subpoena must be served on the addressee
for the subpoena at least 14 days before the date set for the
enforcement hearing.
(2) A copy of the form of the statement to be completed in accordance
with rule 2106 must be served with the enforcement hearing
subpoena.
Note The addressee is not required to comply with the subpoena unless conduct
money is given to the addressee a reasonable time before attendance is
required (see r 6606 (1)).

2106 Enforcement hearing—statement of enforcement debtor’s

financial position
(1) At least 8 days before the date set for the enforcement hearing, the
addressee for the enforcement hearing subpoena must file in the court
a sworn statement of the enforcement debtor’s financial position.
Note See approved form 2.52 (Statement of enforcement debtor's financial
position) AF2006-297.

(2) If the enforcement debtor receives regular payments (for example,

wages or social security benefits), the statement of financial position
must include—
(a) the dates the last 4 payments were received; and
(b) if the payments were paid to the enforcement debtor by payment
into an account with a financial institution—a statement to that
effect, and the account number and any other details necessary
to identify the account.
(3) The registrar must give a copy of the statement to the enforcement
creditor at least 5 days before the date set for the enforcement hearing.

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—enforcement hearings Division 2.18.3
Rule 2107

(4) If the enforcement creditor is satisfied with the information in the

statement, the enforcement creditor may give notice to the addressee
for the subpoena and the registrar that the addressee is no longer
required to attend the enforcement hearing.
(5) If the enforcement hearing subpoena is issued by the court and the
addressee for the subpoena, without reasonable excuse, contravenes
the subpoena by failing to complete, swear or file a statement of the
enforcement debtor’s financial position in accordance with this rule,
the addressee may be dealt with for contempt of court.
(6) Subrule (5) does not limit any other power of the court in relation to
the contravention.
Note Failure to answer a question or give information in a legal proceeding
may be an offence (see Criminal Code, s 722).

2107 Enforcement hearing—subpoena to other person

For an enforcement hearing in relation to an enforcement debtor, the
court may issue a subpoena under part 6.9 to a person who has
relevant knowledge about the circumstances of the enforcement
debtor.

2108 Enforcement hearing—meeting of parties

(1) The court may direct the enforcement debtor and enforcement
creditor to meet together to attempt to settle payment of the order
debt.
Note An order (including a direction) may be made on the consent of the
parties affected by the order (see r 1611 (Orders—by consent)).

(2) However, if the enforcement debtor or enforcement creditor asks, the

court may direct the enforcement debtor and enforcement creditor to
meet with a facilitator appointed by the court to attempt to settle
payment of the order debt.

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.3 Enforcement of money orders—enforcement hearings
Rule 2109

(3) A direction under this rule—

(a) may be given in an enforcement hearing subpoena directed to
the enforcement debtor and require the enforcement debtor and
enforcement creditor to meet at a stated time and place before
the enforcement hearing; or
(b) may be given during the enforcement hearing, on application by
the enforcement debtor or enforcement creditor or on the court’s
own initiative.
Note Pt 6.2 (Applications in proceedings) applies to an application for a
direction made during the enforcement hearing.

(4) Without limiting rule 6016 (Application in proceeding—oral

application), an application at the enforcement hearing (including an
application under this subrule) may be made orally, unless the court
otherwise orders on application by the enforcement debtor or
enforcement creditor or on its own initiative.
(5) If a direction is given during the enforcement hearing, the court may
adjourn the hearing to allow the parties to meet.
(6) The Legislation Act, part 19.3 (Appointments) does not apply to the
appointment of a facilitator under this rule.
(7) If the court gives a direction to a person under this rule and the person,
without reasonable excuse, contravenes the direction by failing to
meet in accordance with the direction, the person may be dealt with
for contempt of court.
(8) Subrule (7) does not limit any other power of the court in relation to
the contravention.

2109 Enforcement hearing—examination

(1) This rule applies if a person—
(a) attends before the court at an enforcement hearing on an
enforcement hearing subpoena or a subpoena issued under
rule 2107 (Enforcement hearing—subpoena to other person); or

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—enforcement hearings Division 2.18.3
Rule 2109

(b) is brought before the court on an enforcement hearing warrant;

or
(c) otherwise attends by arrangement before the court.
(2) The person may—
(a) be examined orally on oath about—
(i) the assets, liabilities, expenses and income of the
enforcement debtor; and
(ii) any other means the debtor has of satisfying the debt; and
(iii) the debtor’s financial circumstances generally; and
Note Oath includes affirmation (see Legislation Act, dict, pt 1).

(b) be required, by order, to produce any document substantiating

anything relevant to—
(i) the assets, liabilities, expenses and income of the
enforcement debtor; and
(ii) any other means the debtor has of satisfying the debt; and
(iii) the debtor’s financial circumstances generally.
(3) Unless the court otherwise orders, the examination may be conducted
by the court and the enforcement creditor.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
otherwise ordering, a direction or a decision under this rule.

(4) The examination may be conducted in open court or in the absence of

the public, as the court directs.
(5) The court may adjourn an enforcement hearing from time to time and
may, by order, require a person required to attend or attending the
enforcement hearing (or an adjourned enforcement hearing) to attend
an adjourned enforcement hearing (or a further adjourned
enforcement hearing).

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.3 Enforcement of money orders—enforcement hearings
Rule 2110

(6) If the enforcement creditor has been told the date, time and place for
the enforcement hearing (or adjourned enforcement hearing), but
does not attend before the court, the court may—
(a) set aside the order for the enforcement hearing; or
(b) conduct the examination in the absence of the enforcement
creditor.
(7) To remove any doubt, if subrule (6) applies, the court may make an
order that it could make if that subrule did not apply.
(8) Without limiting rule 6016 (Application in proceeding—oral
application), an application at the enforcement hearing (including an
application under this subrule) may be made orally, unless the court
otherwise orders on application by the enforcement creditor or
enforcement debtor or on its own initiative.

2110 Enforcement hearing—enforcement hearing warrant

issue
(1) This rule applies if—
(a) a person is required—
(i) to attend an enforcement hearing by an enforcement
hearing subpoena or a subpoena issued under rule 2107
(Enforcement hearing—subpoena to other person); or
(ii) to attend an adjourned enforcement hearing (or further
adjourned enforcement hearing) by an order under
rule 2109 (5) (Enforcement hearing—examination); and
(b) the person fails to attend the hearing as required by the order.

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—enforcement hearings Division 2.18.3
Rule 2111

(2) The court may issue a warrant (an enforcement hearing warrant)
ordering an enforcement officer to apprehend the person and bring
the person before the court to be examined at an enforcement hearing
under rule 2109 if the court—
(a) is satisfied that the person was served with the subpoena or was
otherwise aware that the person was required by the
enforcement hearing subpoena to attend the hearing as required
by the subpoena; and
(b) considers that the person does not have a reasonable excuse for
not attending the hearing.
Note See approved form 2.53 (Enforcement hearing warrant) AF2006-298.

(3) The court may issue the enforcement hearing warrant on application
by the enforcement creditor or on its own initiative.
Note Pt 6.2 (Applications in proceedings) applies to an application for an
enforcement hearing warrant.

(4) However, the enforcement hearing warrant may only be issued by the
judicial officer conducting the enforcement hearing.
(5) Also, the enforcement hearing warrant must not be issued earlier than
14 days or later than 3 months after the day the court has served notice
on the person that failure to attend may result in the person’s arrest.
(6) For the Magistrates Court Act 1930, section 73A, that Act,
division 3.4.4 (Committal and recognisance) applies in relation to a
person for whom an enforcement hearing warrant has been issued by
the Magistrates Court.

2111 Enforcement hearing—enforcement hearing warrant

contents etc
(1) An enforcement hearing warrant must—
(a) name, or otherwise describe, the person whose apprehension is
required by the warrant; and

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.3 Enforcement of money orders—enforcement hearings
Rule 2111

(b) state briefly the reason for its issue; and

(c) require an enforcement officer to arrest the person whose
apprehension is required and bring the person before the court
to be examined at an enforcement hearing under rule 2109; and
(d) be expressed to end not later than 3 months after the day it is
issued.
(2) For subrule (1) (c), the enforcement officer may enter and search any
premises where the enforcement officer suspects, on reasonable
grounds, the person to be using the force and assistance that is
reasonable and necessary.
(3) The enforcement officer may ask a police officer to help in the
exercise of the enforcement officer’s powers under the enforcement
hearing warrant.
(4) The police officer must give the enforcement officer the reasonable
help the enforcement officer requires, if it is practicable to give the
help.
(5) The enforcement officer or a police officer may deliver the
apprehended person to the person in charge of any correctional centre
and that person must receive and keep the apprehended person in
custody until the court or the enforcement officer otherwise directs.
(6) An enforcement hearing warrant continues in force until—
(a) the warrant is executed; or
(b) the warrant is set aside by the court and the enforcement officer
is told that the warrant has been set aside; or
(c) the end of 3 months after the day it is issued.
(7) For subrule (6) (a), a warrant is executed when—
(a) the person whose apprehension is required has been examined
at an enforcement hearing under rule 2109; or

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—enforcement hearings Division 2.18.3
Rule 2112

(b) the examination is adjourned to another day; or

(c) the order for the enforcement hearing is set aside.

2112 Enforcement hearing—orders

(1) At the enforcement hearing, the court may—
(a) issue an enforcement hearing warrant; or
Note Rule 2110 (2) deals with the issue of a warrant.

(b) make an instalment order for the order debt; or

Note Div 2.18.4 (Enforcement of money orders—instalment orders)
provides for the making of instalment orders.

(c) make an order amending, suspending or setting aside an

instalment order made for the order debt; or
Note See r 2160 (Instalment order—amending, suspending or setting
aside).

(d) make an earnings redirection order; or

Note Div 2.18.8 (Enforcement of money orders—earnings redirection
orders) applies to the making of earnings redirection orders.

(e) make an order amending, suspending or setting aside an

earnings redirection order; or
Note See r 2360 (Earnings redirection order—amending, suspending or
setting aside).

(f) make an order staying the enforcement of the money order; or

Note Rule 2013 (Enforcement—stay) provides for the stay of money
orders on application.

(g) make another order about the enforcement of the order; or

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.3 Enforcement of money orders—enforcement hearings
Rule 2112

(h) award costs on application by the enforcement creditor, the

enforcement debtor or someone else required to attend the
enforcement hearing by a subpoena or warrant.
Note Pt 6.2 (Applications in proceedings) applies to an application for
an order under par (g) and an application under par (h).

(2) Without limiting rule 6016 (Application in proceeding—oral

application), an application at the enforcement hearing (including an
application under this subrule) may be made orally, unless the court
otherwise orders on application by the enforcement creditor or
enforcement debtor or on its own initiative.
(3) However, the court must not—
(a) make an instalment order at the enforcement hearing unless the
enforcement debtor—
(i) had applied for the order under rule 2151; or
(ii) consents to the making of the order; or
(b) amend an instalment order at the enforcement hearing unless the
enforcement debtor—
(i) had applied for the amendment under rule 2160; or
(ii) consents to the amendment.
(4) To remove any doubt, the court may set aside an instalment order at
the enforcement hearing whether or not the enforcement debtor
consents to the order being set aside.
(5) Also, unless the court otherwise orders, the costs of the enforcement
hearing are costs of enforcement of the order.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
otherwise ordering.

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—instalment orders Division 2.18.4
Rule 2150

Division 2.18.4 Enforcement of money orders—

instalment orders
2150 Instalment order—making
(1) The court may make an order (an instalment order) authorising
satisfaction of the amount payable under an enforceable money order
of the court by instalment payments by the order debtor.
(2) The court may make an instalment order—
(a) on application by the enforcement debtor when making the
money order; or
(b) on application by the enforcement debtor or someone else under
rule 2013 (Enforcement—stay) or rule 2051 (Enforcement
orders—application to set aside); or
(c) on application by the enforcement debtor under rule 2151 or the
enforcement creditor under rule 2153; or
(d) on the filing in the court of an instalment order agreement under
rule 2157; or
(e) after hearing an application under rule 2314 (Debt redirection
order—amending, suspending or setting aside); or
(f) after hearing an application under rule 2360 (Earnings
redirection order—amending, suspending or setting aside).
Note For the making of an instalment order, see esp—
• r 2154 (Instalment order—relevant considerations)
• r 2156 (Instalment order—content and issue).

2151 Instalment order—application by enforcement debtor

(1) An application by an enforcement debtor for an instalment order is
made by filing in the court—
(a) a sworn statement of the enforcement debtor’s financial
position; and

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.4 Enforcement of money orders—instalment orders
Rule 2151

(b) a draft of the order sought.

Note 1 See approved form 2.54 (Instalment order) AF2006-299.
Note 2 Some applications by the enforcement debtor need leave (see r 2152).
Note 3 For the effect of the making of the application on a seizure and sale order,
see r 2208 (Seizure and sale order—application for instalment order stays
sale of seized property).

(2) Part 6.2 (Applications in proceedings) does not apply to the

application.
(3) The sworn statement and draft order mentioned in subrule (1) need
not be served on anyone unless the court otherwise orders on its own
initiative.
(4) Unless the court otherwise orders on its own initiative, an application
for an instalment order by an enforcement debtor must be dealt with
without a hearing and in the absence of the parties.
(5) To remove any doubt, this rule does not apply to an application by an
enforcement debtor for an instalment order made—
(a) when making the money order; or
(b) under any of the following rules:
(i) rule 2013 (Enforcement—stay);
(ii) rule 2051 (Enforcement orders—application to set aside);
(iii) rule 2314 (Debt redirection order—amending, suspending
or setting aside);
(iv) rule 2360 (Earnings redirection order—amending,
suspending or setting aside).

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—instalment orders Division 2.18.4
Rule 2152

2152 Instalment order—when application by enforcement

debtor requires leave
(1) The enforcement debtor may not make an application for an
instalment order without the court’s leave if—
(a) the enforcement debtor has made an application for an
instalment order in relation to the same money order in the
previous 6 months; or
(b) a previous instalment order made in relation to the same money
order ceased to have effect under rule 2162 (Instalment order—
ceasing to have effect for nonpayment).
Note Pt 6.2 (Applications in proceedings) applies to an application for leave.

(2) An application for leave must be accompanied by an affidavit in

support of the application.
(3) In deciding whether to give leave under this rule, the court must have
regard to the following matters:
(a) any change in the enforcement debtor’s property or financial
circumstances since the enforcement debtor last applied to the
court for an instalment order for the order debt;
(b) the payments made by the enforcement debtor in discharge of
the order debt;
(c) the enforcement action (if any) taken in relation to the order
debt;
(d) the interests and attitudes of the parties;
(e) whether giving leave would be consistent with the public
interest in enforcing orders justly, efficiently and quickly.
(4) Subrule (3) does not limit the matters to which the court may have
regard.

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.4 Enforcement of money orders—instalment orders
Rule 2153

2153 Instalment order—application by enforcement creditor

(1) An application by an enforcement creditor for an instalment order
must be accompanied by—
(a) a draft of the order sought; and
(b) an affidavit in support of the application.
Note 1 See approved form 2.54 (Instalment order) AF2006-299.
Note 2 Pt 6.2 (Applications in proceedings) applies to the application.

(2) The affidavit in support must state—

(a) the date the money order was made; and
(b) the date a sealed copy of the money order, and the notice in
accordance with rule 2015 (2), was served on the enforcement
debtor; and
(c) the amount of the order debt; and
(d) that the order debt has not been fully paid; and
(e) the date and amount of each payment (if any) made under the
order; and
(f) the costs incurred in previous enforcement proceedings in
relation to the order; and
(g) the interest owing on the day the affidavit is made (the affidavit
date); and
(h) any other details necessary to work out the amount payable
under the order on the affidavit date and how the amount is
worked out; and
(i) the daily amount of any interest that, subject to any future
payment under the order, will accrue after the affidavit date; and
(j) any other information necessary for the order being sought.

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—instalment orders Division 2.18.4
Rule 2154

(3) The affidavit made must be sworn not earlier than 2 days before the
day the application is made.
(4) To remove any doubt, this rule does not apply to an application by
the enforcement creditor for an instalment order under any of the
following rules:
(a) rule 2013 (Enforcement—stay);
(b) rule 2051 (Enforcement orders—application to set aside);
(c) rule 2314 (Debt redirection order—amending, suspending or
setting aside);
(d) rule 2360 (Earnings redirection order—amending, suspending
or setting aside).

2154 Instalment order—relevant considerations

(1) In deciding whether to make an instalment order on application by
the enforcement creditor or enforcement debtor, the court must have
regard to the following matters, as far as they are known to the court:
(a) whether the enforcement debtor is employed;
(b) the enforcement debtor’s means of satisfying the order debt;
(c) whether the order debt, including any interest, will be satisfied
within a reasonable time;
(d) the necessary living expenses of the enforcement debtor and the
enforcement debtor’s dependants;
(e) other liabilities of the enforcement debtor;
(f) if the applicant is the enforcement debtor—whether, having
regard to the availability of other enforcement means, making
the order would be consistent with the public interest in
enforcing orders justly, efficiently and quickly.
(2) Subrule (1) does not limit the matters to which the court may have
regard.

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.4 Enforcement of money orders—instalment orders
Rule 2155

(3) In deciding the amount and timing of the instalments, the court must
be satisfied that the instalment order will not impose unreasonable
hardship on the enforcement debtor or any dependant of the
enforcement debtor.
(4) However, an enforcement hearing is not necessary before the court
makes the instalment order.

2155 Instalment order—stay of enforcement

(1) The filing of the first application for an instalment order in relation to
an order debt operates to stay the enforcement of the order debt until
the application is heard and decided.
(2) However, the filing of a second or later application in relation to the
order debt does not operate to stay the enforcement of the order debt
unless the court otherwise orders.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
otherwise ordering.

2156 Instalment order—content and issue

(1) An instalment order for a money order must state—
(a) the amount recoverable under the money order; and
(b) the amount of the instalments and when they are payable under
the instalment order.
(2) The amount recoverable must include—
(a) unless the court otherwise orders—
(i) the unpaid costs of any previous enforcement proceeding
for the same money order (including any amounts
recoverable under the Service and Execution of Process
Act 1992 (Cwlth)); and
(ii) the unpaid interest on those costs; and
(b) the costs relating to the instalment order; and

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—instalment orders Division 2.18.4
Rule 2157

(c) the amount of interest on the order debt.

Note Pt 6.2 (Applications in proceedings) applies to an application for an order
otherwise ordering under this rule.

(3) The instalment order must require payment of the instalments to be

made to, or as directed from time to time by, the enforcement creditor
unless the court otherwise orders.
(4) If the court makes an instalment order, or an order otherwise ordering
under subrule (3), the registrar must give a sealed copy of the order
to the enforcement creditor.
(5) A direction under subrule (3) must be made by notice given to the
enforcement debtor.

2157 Instalment order—instalment order agreement

(1) The enforcement creditor and enforcement debtor for an enforceable
money order of the court may enter into an agreement (an instalment
order agreement)—
(a) stating—
(i) the amount agreed by them to be owing by the enforcement
debtor to the enforcement creditor under the money order;
and
(ii) by what instalments payable at what times the amount
owing is to be paid; or
(b) revoking or amending an instalment order in force in relation to
the money order.
Note See approved form 2.55 (Instalment order agreement) AF2006-300.

(2) An agreement has no effect unless it is signed by the enforcement

creditor and enforcement debtor and each signature is witnessed.

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.4 Enforcement of money orders—instalment orders
Rule 2158

(3) If an agreement in accordance with this rule is filed in the court, the
court must make an instalment order—
(a) for an agreement under subrule (1) (a)—for the payment of the
order debt by the instalments payable at the times stated in the
agreement; or
(b) for an agreement under subrule (1) (b)—revoking or amending
the instalment order as stated in the agreement.
Note See approved form 2.56 (Instalment order by agreement) AF2006-301.

2158 Instalment order—service

(1) If the court makes an instalment order on the application of the
enforcement creditor, the enforcement creditor must serve a sealed
copy of the order on the enforcement debtor.
(2) If the court makes an instalment order on the application of the
enforcement debtor and in the absence of the enforcement creditor,
the registrar must serve a sealed copy of the order on the enforcement
creditor and the enforcement debtor.
(3) If the court makes an instalment order on the filing in the court of an
instalment order agreement, the registrar must serve a sealed copy of
the order on the enforcement creditor and the enforcement debtor.

2159 Instalment order—no other enforcement while in force

Unless the court otherwise orders—
(a) on the making of an instalment order for a money order, any
other enforcement order in force in relation to the money order
is automatically stayed; and
(b) while the instalment order is in force, no other enforcement
order may be made in relation to the money order.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
otherwise ordering.

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—instalment orders Division 2.18.4
Rule 2160

2160 Instalment order—amending, suspending or setting aside

(1) On application by the enforcement creditor or enforcement debtor (a
party), the court may make an order amending, suspending or setting
aside an instalment order.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(2) A party must not make more than 1 application for an order amending
an instalment order within a 6-month period unless the court gives
leave.
(3) The enforcement creditor may make an application for an order
amending an instalment order only if—
(a) there has been a substantial increase in the property, or a
substantial improvement in the financial circumstances, of the
enforcement debtor—
(i) since the order was made; or
(ii) if the order has been amended—since the order was last
amended; or
(b) when the order was made, amended or last amended, material
facts had been withheld from the court or material evidence
before the court was false.
(4) If—
(a) the court makes an order under subrule (1) on the application of
the enforcement creditor; and
(b) the enforcement debtor was not before the court when the order
was made;
the enforcement creditor must serve a sealed copy of the order on the
enforcement debtor.

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.4 Enforcement of money orders—instalment orders
Rule 2161

(5) If—
(a) the court makes an order under subrule (1) on the application of
the enforcement debtor; and
(b) the enforcement creditor was not before the court when the order
was made;
the registrar must serve a sealed copy of the order on the enforcement
debtor.
(6) Unless the court otherwise orders, an order amending or suspending
an instalment order does not come into force until the end of 7 days
after—
(a) the day the order is made; or
(b) if a sealed copy of the order is required to be served under
subrule (4) or (5)—the day the order is served.

2161 Instalment order—ceasing to have effect other than for

nonpayment
(1) An instalment order ceases to have effect if—
(a) the order debt is satisfied; or
(b) the instalment order is set aside or ends in accordance with its
terms; or
(c) unless the court otherwise orders, another enforcement order is
made in relation to the order debt.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
otherwise ordering.

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—instalment orders Division 2.18.4
Rule 2162

(2) If an instalment order ceases to have effect under subrule (1),

otherwise than because of an order made in the presence of the
enforcement debtor, the enforcement creditor must give notice to the
enforcement debtor that the instalment order has ceased to have
effect.
Note See approved form 2.57 (Instalment order-notice of cessation other than
for nonpayment) AF2006-302.

(3) The enforcement creditor must file a copy of the notice in the court.

2162 Instalment order—ceasing to have effect for nonpayment

(1) An instalment order ceases to have effect if—
(a) the enforcement debtor fails to make 2 consecutive payments
under the order at the times required by the order; and
(b) the enforcement creditor files in the court an affidavit stating
that fact.
(2) If an instalment order ceases to have effect under subrule (1), the
enforcement creditor must serve on the enforcement debtor—
(a) a stamped copy of the affidavit; and
(b) a notice telling the enforcement debtor that the instalment order
has ceased to have effect.
Note See approved form 2.58 (Instalment order-notice of cessation for
nonpayment) AF2006-303.

(3) The enforcement creditor must file a copy of the notice in the court.

2163 Instalment order—record of payments

(1) If an instalment order is made for an order debt, the enforcement
creditor must make a record of the amount and date of each instalment
paid by the enforcement debtor under the instalment order to, or as
directed by, the enforcement creditor.

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.4 Enforcement of money orders—instalment orders
Rule 2163

(2) The enforcement creditor must keep the record for at least 6 years
after the day the last instalment is paid by the enforcement debtor
under the instalment order.
(3) The enforcement debtor is entitled, at any reasonable time while the
record is being kept, to inspect the record and make a copy of, or take
an extract from, the record.
(4) If the enforcement debtor asks for a copy of all or part of the record
while it is being kept, the enforcement creditor must give the copy to
the enforcement debtor on payment of a reasonable charge for
preparing the copy.
(5) On application by the enforcement debtor, the court may make any
order it considers appropriate to ensure compliance with this rule,
including, for example—
(a) an order requiring the enforcement creditor to—
(i) file in the court a copy of all or part of the record verified
by affidavit; or
(ii) give the enforcement debtor a copy of all or part of the
record; or
(b) an order that the enforcement creditor is not entitled to interest
on the order debt for all or part of a period.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—seizure and sale orders Division 2.18.5
Rule 2200

Division 2.18.5 Enforcement of money orders—

seizure and sale orders
2200 Seizure and sale order—making
(1) On application by the enforcement creditor for an enforceable money
order of the Supreme Court, the Supreme Court may make an order
(a seizure and sale order) authorising an enforcement officer to seize
and sell in satisfaction of the order debt all real and personal property
(other than exempt property) in which the enforcement debtor has a
legal or beneficial interest.
(2) On application by the enforcement creditor for an enforceable money
order of the Magistrates Court, the Magistrates Court may make an
order (also a seizure and sale order) authorising an enforcement
officer to seize and sell in satisfaction of the order debt all personal
property (other than exempt property) in which the enforcement
debtor has a legal or beneficial interest.
Note See r 2050 (Enforcement orders—content and issue) for provisions about
the content and issue of the order.

2201 Seizure and sale order—application

(1) An application for a seizure and sale order is made by filing in the
court—
(a) a draft of the order sought; and
(b) an affidavit in support of the application.
Note See approved form 2.59 (Seizure and sale order) AF2006-304.

(2) The affidavit in support must state—

(a) the date the money order was made; and
(b) the date a sealed copy of the money order, and the notice in
accordance with rule 2015 (2), was served on the enforcement
debtor; and

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.5 Enforcement of money orders—seizure and sale orders
Rule 2201

(c) the amount of the order debt; and

(d) that the order debt has not been fully paid; and
(e) the date and amount of each payment (if any) made under the
order; and
(f) the costs incurred in previous enforcement proceedings in
relation to the order; and
(g) the interest owing on the day the affidavit is made (the affidavit
date); and
(h) any other details necessary to work out the amount payable
under the order on the affidavit date and how the amount is
worked out; and
(i) the daily amount of any interest that, subject to any future
payment under the order, will accrue after the affidavit date; and
(j) any addresses where property belonging to the enforcement
debtor may be located; and
(k) any other information necessary for the order being sought.
(3) The affidavit must be sworn not earlier than 2 days before the day the
application is filed in the court.
(4) Part 6.2 (Applications in proceedings) does not apply to the
application.
(5) The affidavit and draft order need not be served on anyone unless the
court otherwise orders on its own initiative.
(6) Unless the court otherwise orders on its own initiative, an application
for a seizure and sale order must be dealt with without a hearing and
in the absence of the parties.

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—seizure and sale orders Division 2.18.5
Rule 2202

2202 Seizure and sale order—additional exempt property

(1) On application by the enforcement debtor for an enforceable money
order of the court, the court may order that stated property of the
enforcement debtor is exempt from seizure under a seizure and sale
order.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(2) The court must not make an order under subrule (1) unless satisfied
that the enforcement debtor or any of the enforcement debtor’s
dependants would be likely to suffer exceptional hardship if the order
were not made.
(3) On application by the enforcement creditor or enforcement debtor for
an enforceable money order of the court, the court may amend or set
aside an order under subrule (1).

2203 Seizure and sale order—entry, search and seizure powers

if no consent
(1) This rule applies if, in executing a seizure and sale order—
(a) an enforcement officer is refused entry to the enforcement
debtor’s premises, after having told or made reasonable attempts
to tell the occupier (orally or in writing)—
(i) about the procedure for execution of the order; and
(ii) that the enforcement officer intends to apply for an order
for entry under this rule if entry is refused; or
(b) an enforcement officer—
(i) has made reasonable attempts to contact the enforcement
debtor and any other occupier of the enforcement debtor’s
premises to obtain consent to enter the premises; and
(ii) has been unable to make contact with the enforcement
debtor or any other occupier of the premises.

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.5 Enforcement of money orders—seizure and sale orders
Rule 2203

(2) At the request of the enforcement officer, the court may make an
order authorising the enforcement officer, for any purpose connected
with executing the seizure and sale order, to enter the enforcement
debtor’s premises—
(a) using the force and assistance that is reasonable and necessary;
and
(b) with the assistance of a police officer or police officers if the
enforcement officer considers the assistance to be necessary.
(3) Without limiting subrule (2), an order under that subrule is sufficient
authority for the enforcement officer—
(a) to search the enforcement debtor’s premises for anything that
the enforcement officer is entitled to seize in execution of the
seizure and sale order; and
(b) to seize and remove anything the enforcement officer is entitled
to seize in execution of the seizure and sale order.
(4) The court must not make an order under subrule (2) in relation to
premises unless satisfied that—
(a) the enforcement debtor lives at the premises; or
(b) something the enforcement officer is entitled to seize is at the
premises; or
(c) the enforcement officer is entitled to sell the premises.
(5) An enforcement officer is not civilly liable for anything done or
omitted to be done honestly and without recklessness in executing an
order under subrule (2).
(6) This rule does not limit any other power of an enforcement officer or
the court in relation to the execution of an enforcement order.
(7) In this rule:
enforcement debtor’s premises means premises occupied by the
enforcement debtor.

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—seizure and sale orders Division 2.18.5
Rule 2204

2204 Seizure and sale order—assistance to enforcement

debtor
(1) If it appears to the enforcement officer executing a seizure and sale
order that the enforcement debtor does not properly understand the
nature of the order (for example, for language or cultural reasons or
because of a disability), the enforcement officer must—
(a) give the enforcement debtor written information about where the
enforcement debtor may be able to obtain legal or financial
advice and assistance in relation to the order; and
(b) if the enforcement debtor has difficulty understanding the
English language—seek the assistance of an interpreter to
explain the situation to the enforcement debtor and ensure the
enforcement debtor understands the information given under
paragraph (a).
Note See approved form 2.60 (Notice to enforcement debtor about seizure and
sale order) AF2006-305.

(2) Further action may not be taken to execute the seizure and sale order
before the end of 7 days after the day the information is given to the
enforcement debtor.
(3) The costs of complying with this rule are costs of enforcement of the
seizure and sale order.

2205 Seizure and sale order—notice of order

(1) This rule applies if—
(a) an enforcement officer enters premises for the first time for the
purpose of executing a seizure and sale order; or
(b) an enforcement officer seizes personal property under a seizure
and sale order for the first time at a place.

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.5 Enforcement of money orders—seizure and sale orders
Rule 2205

(2) If subrule (1) (a) applies, the enforcement officer must give a sealed
copy of the seizure and sale order to—
(a) the enforcement debtor; or
(b) if the enforcement debtor is not present but a person who appears
to be at least 16 years old and to live or be employed at the
premises is present—that person.
(3) If subrule (1) (b) applies, the enforcement officer must give a sealed
copy of the seizure and sale order to—
(a) the enforcement debtor; or
(b) if the enforcement debtor is not present but a person who appears
to be at least 16 years old and to be in possession of the seized
property is present—that person.
(4) If there is no-one present at the premises or place who can be given a
sealed copy of the seizure and sale order under subrule (2) or (3), the
enforcement officer must leave a sealed copy of the order, secured
conspicuously, at the premises or place.
(5) However, subrule (4) does not require the enforcement officer to
leave a sealed copy of the order in a public place.
(6) If the enforcement debtor is not given a sealed copy of the seizure and
sale order under subrule (2) or (3), the enforcement officer must serve
a sealed copy of the order on the enforcement debtor—
(a) if the enforcement debtor has an address for service—at the
enforcement debtor’s address for service; or
(b) in any other case—in the same way that an originating process
filed in the court to recover the debt may be served on the
enforcement debtor under these rules.
(7) However, this rule does not require a sealed copy of the seizure and
sale order to be given to or served on the enforcement debtor if the
enforcement debtor has already been given or served with a sealed
copy of the order.

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—seizure and sale orders Division 2.18.5
Rule 2206

(8) In this rule:

premises includes the land around premises occupied by the
enforcement debtor.

2206 Seizure and sale order—notice of property seized

(1) If an enforcement officer seizes personal property at a place under a
seizure and sale order, the enforcement officer must—
(a) make an inventory of the seized property that is sufficient to
identify it; and
(b) give notice of the seizure and a copy of the inventory to—
(i) the enforcement debtor; or
(ii) if the enforcement debtor is not present but a person who
appears to be at least 16 years old and to live or be
employed at the place, or to be in possession of the
property, is present—that person.
Note See approved form 2.61 (Notice of seizure and inventory of
property under seizure and sale order) AF2006-306.

(2) The notice must include the following information:

(a) the amount (including any amount payable for interest and
costs) required to satisfy the order debt;
(b) that application may be made under rule 2202 for an order
exempting particular property from sale under the seizure and
sale order;
(c) a summary of the process that is followed for sale of property
under a seizure and sale order.
(3) If there is no-one present at the place who can be given the notice and
a copy of the inventory, the enforcement officer must leave the notice
and a copy of the inventory, secured conspicuously, at the place.

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.5 Enforcement of money orders—seizure and sale orders
Rule 2207

(4) However, subrule (3) does not require the enforcement officer to
leave the notice and a copy of the inventory in a public place.

2207 Seizure and sale order—removal etc of seized property

(1) If an enforcement officer seizes personal property, the enforcement
officer must consider how best to secure and preserve the property.
(2) The enforcement officer may—
(a) remove the property from the premises or place where the
property was seized; or
(b) leave the property where it is but restrict access to it or otherwise
mark the property as having been seized.
(3) If the enforcement officer leaves the property where it is, the
enforcement officer must tell the enforcement debtor or anyone else
who has custody of the property, in writing, that the property has been
seized under a seizure and sale order and that the person is responsible
for its safekeeping.
(4) The enforcement creditor is liable to pay any storage expenses but
may recover them as costs of enforcement.

2208 Seizure and sale order—application for instalment order

stays sale of seized property
(1) This rule applies if—
(a) property is seized under a seizure and sale order in relation to an
enforceable money order of the court; and
(b) the enforcement debtor makes an application to the court for an
instalment order in relation to the money order.
Note Rule 2150 (Instalment order—making) provides for the making of
instalment orders.

(2) The property must not be sold until the court decides the application.

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—seizure and sale orders Division 2.18.5
Rule 2209

(3) If the court refuses to make an instalment order on the application,

the court may order a stay of sale of the property until any appeal on
the application is finally decided.

2209 Seizure and sale order—property seized not abandoned

If an enforcement officer seizes property at premises under a seizure
and sale order—
(a) the enforcement officer is not taken to have abandoned the
property if the enforcement officer leaves the property at the
premises; and
(b) the enforcement officer may at all reasonable times re-enter the
premises while the property is there.

2210 Seizure and sale order—seizure of real property

(1) This rule applies if an enforcement creditor asks an enforcement
officer to seize real property under a seizure and sale order.
(2) The enforcement officer is taken to have seized the real property for
these rules if the enforcement officer gives the enforcement debtor—
(a) a sealed copy of the seizure and sale order; and
(b) a copy of a notice that the enforcement officer is instructed to
seize and sell the real property.
(3) Actual seizure is not necessary to authorise the sale of real property
under a seizure and sale order.

2211 Seizure and sale order—enforcement debtor not to deal

with real property
(1) After being given a copy of a notice about real property under
rule 2210, the enforcement debtor must not sell, transfer or otherwise
deal with the property without the court’s leave.
Note Pt 6.2 (Applications in proceedings) applies to an application for leave or
an order under this rule.

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.5 Enforcement of money orders—seizure and sale orders
Rule 2212

(2) The courts may set aside or restrain any sale, transfer or other dealing
in contravention of this rule, unless to do so would prejudice the rights
of a genuine purchaser without notice.

2212 Seizure and sale order—order of seizing and selling

property
(1) An enforcement officer must seize and sell property under a seizure
and sale order—
(a) in the order appearing to the enforcement officer to be best for
the prompt enforcement of the order without unnecessary
expense; and
(b) subject to paragraph (a), in the order appearing to the
enforcement officer to be best for minimising hardship to the
enforcement debtor or other people; and
(c) subject to paragraphs (a) and (b), by seizing and selling personal
property before real property unless—
(i) the enforcement debtor asks for real property to be sold
before personal property; or
(ii) the court otherwise orders on application by the
enforcement debtor, the enforcement creditor or the
enforcement officer.
Note Pt 6.2 (Applications in proceedings) applies to an
application for an order otherwise ordering.

(2) An enforcement officer may seize and sell an item of property under
a seizure and sale order even though its value appears to exceed the
amount recoverable under the order, but must not seize or sell
additional items of property.

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—seizure and sale orders Division 2.18.5
Rule 2213

2213 Seizure and sale order—payment before sale

An enforcement officer may not sell property seized under a seizure
and sale order if, at or before the sale, the enforcement debtor or
someone else pays to the enforcement officer—
(a) the amount owing under the order, including interest; and
(b) the costs of enforcement then known to the enforcement officer;
and
(c) the amount set by the enforcement officer as security for the
enforcement creditor’s other costs of enforcement.

2214 Seizure and sale order—suspension etc of enforcement

(1) If property has not been seized under a seizure and sale order, the
enforcement creditor may, in writing—
(a) require enforcement of the order to be suspended
unconditionally; and
(b) if enforcement of the order has been suspended under these
rules—require enforcement to be resumed.
(2) An enforcement officer must comply with a requirement made in
accordance with this rule.

2215 Seizure and sale order—agreements to withdraw and

re-enter
(1) This rule applies if property has been seized under a seizure and sale
order and the enforcement creditor—
(a) enters into an arrangement with the enforcement debtor that an
enforcement officer may withdraw from and re-enter possession
of the property; and
(b) tells the enforcement officer about the arrangement; and

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.5 Enforcement of money orders—seizure and sale orders
Rule 2216

(c) asks the enforcement officer to withdraw from possession of the

property.
(2) The enforcement officer must withdraw from possession of the
property and suspend enforcement of the seizure and sale order.
(3) However, the enforcement officer may, if asked in writing by the
enforcement creditor, re-enter possession of the property and resume
enforcement of the seizure and sale order.
(4) If property has been seized under a seizure and sale order and the
enforcement creditor, without telling the enforcement officer about
the arrangement mentioned in subrule (1), asks an enforcement
officer to withdraw from possession or suspend enforcement of the
order, other than for the purpose of postponing a sale for a reasonable
time—
(a) the enforcement creditor is taken to have abandoned the
enforcement of the order; and
(b) the enforcement officer must withdraw from possession of the
property and return the order to the enforcement creditor.
(5) Subrule (4) does not apply if the court otherwise orders on application
by the enforcement creditor.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
otherwise ordering.

2216 Seizure and sale order—nature of sale

(1) Unless the court otherwise orders, an enforcement officer must put up
for sale by public auction all property liable to be sold under a seizure
and sale order—
(a) as early as possible, having regard to the interests of the
enforcement creditor and the enforcement debtor (the parties);
and

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—seizure and sale orders Division 2.18.5
Rule 2216

(b) at a place and in a way appearing to the enforcement officer to

be suitable for a beneficial sale of the property.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(2) The property must not be sold before the end of 7 days after the day
the property is seized unless—
(a) the enforcement debtor asks for the property to be sold before
the end of the 7-day period; or
(b) the property is perishable.
(3) However, personal property must be sold within 12 weeks after the
day it is seized.
(4) Before the property is sold by public auction, a party or the
enforcement officer may apply to the court for an order that the
property be sold privately.
Note Pt 6.2 (Applications in proceedings) applies to the application.

(5) The application must be accompanied by an affidavit in support of

the application.
(6) If the applicant is a party, the applicant must also serve a stamped
copy of the application on the enforcement officer.
(7) If, on application by the enforcement creditor, the court makes an
order that the property be sold privately before a public auction, the
court may order that the enforcement creditor pay any costs already
incurred by the enforcement officer for the auction.
(8) Property sold by public auction must be sold under the following
conditions of sale:
(a) for personal property, if the person conducting the auction
considers the particular lot in which the property is to be
auctioned is worth less than $500, or for other property if the
enforcement debtor agrees—at the best price obtainable;

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.5 Enforcement of money orders—seizure and sale orders
Rule 2217

(b) otherwise, if the reserve is reached—to the highest bidder;

(c) if the person conducting the auction considers there is a dispute
as to who is the highest bidder, the property is to be reauctioned
and knocked down to the highest bidder.
(9) If property put up for sale at public auction is not sold by auction, the
enforcement officer may sell the property privately—
(a) for an amount not less than the highest bid made at the auction
that the enforcement officer considers is a reasonable amount
for the property; or
(b) if no bid was made at the auction—for an amount the
enforcement officer considers is a reasonable amount for the
property; or
(c) in accordance with an order of the court under rule 2220 (Seizure
and sale order—sale at best price obtainable).
(10) In this rule:
reserve, for a property to be sold at auction, means the reserve amount
set by the enforcement officer that is an amount the enforcement
officer considers is not less than a reasonable amount for the property.

2217 Seizure and sale order—setting reasonable amount

(1) To set an amount as a reasonable value of the property to be sold
under a seizure and sale order, the enforcement officer—
(a) may engage a suitably qualified and experienced valuer to give
the enforcement officer an opinion about the value of the
property; and
(b) may require the enforcement creditor to provide any information
about the property that the enforcement creditor knows or can
reasonably obtain; and
(c) may seek any other information the enforcement officer
considers appropriate.

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—seizure and sale orders Division 2.18.5
Rule 2218

(2) If the enforcement creditor fails to comply with the enforcement

officer’s request, the enforcement officer may refuse to proceed with
the sale until the information is provided or the court otherwise orders
on the application of the enforcement creditor.
Note Pt 6.2 (Applications in proceedings) applies to an application by the
enforcement creditor.

(3) The enforcement officer’s costs under this rule are costs of
enforcement of the seizure and sale order.
(4) The enforcement officer may communicate the amount set as a
reasonable value of property to be sold to any person before the sale
only if the communication is necessary to conduct the sale or there is
another sufficient excuse.

2218 Seizure and sale order—additional provisions relating to

land
(1) This rule applies if land is to be sold under a seizure and sale order.
(2) An enforcement officer may appoint a real estate agent to market the
land and conduct the sale.
(3) The agent’s costs in marketing and selling the land are costs of
enforcing the seizure and sale order.
(4) The enforcement officer or appointed real estate agent may postpone
the sale of the land if the officer or agent considers that an immediate
sale would result in a sacrifice of the value of the land.
(5) The enforcement officer must—
(a) search the title of the land for any encumbrances; and
(b) make inquiries about the outstanding value of any
encumbrances.
(6) The enforcement officer must take the value of any encumbrances
into account in setting the reserve price of the property.

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.5 Enforcement of money orders—seizure and sale orders
Rule 2218A

(7) On application by the enforcement officer, the court may make any
order it considers appropriate in aid of the sale of the land under the
seizure and sale order, including, for example, an order for the
disclosure of the amount owing under an encumbrance on the land.
(8) Part 6.2 (Applications in proceedings) does not apply to an
application under subrule (7).
(9) An application under subrule (7) need not be served on anyone unless
the court otherwise orders on its own initiative.
(10) Unless the court otherwise orders on its own initiative, an application
under subrule (7) must be dealt with without a hearing and in the
absence of the parties.
(11) If the court makes an order under subrule (7), the registrar must give
a sealed copy of the order to the enforcement creditor and
enforcement debtor.

2218A Seizure and sale order—appointment of real estate agent

(1) For rule 2218 (2), an enforcement officer may appoint a real estate
agent
(a) after—
(i) seeking expressions of interest from real estate agents to
market the land and conduct the sale; and
(ii) considering any expressions of interest received, and the
qualifications and experience of an agent who expresses an
interest; or
(b) from a panel established under subrule (2).
(2) The sheriff may establish a panel of real estate agents with
appropriate qualifications and experience to market and sell land
under a seizure and sale order.

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—seizure and sale orders Division 2.18.5
Rule 2219

(3) For subrule (2), the sheriff must—

(a) call for expressions of interest from real estate agents who wish
to be included on the panel; and
(b) may arrange for enforcement officers to appoint agents from the
panel—
(i) on rotation; or
(ii) because the agent’s business is concentrated in the area
where land to be sold is situated; or
(iii) for any other reason the sheriff considers relevant.
(4) An expression of interest from a real estate agent must include the
agent’s fees or other remuneration, and the agent’s proposed
arrangements, for the marketing and sale of land under this rule.

2219 Seizure and sale order—power of entry for auction of

land
(1) If land is to be sold by public auction, the court may, on application
by an enforcement officer, make an order—
(a) authorising entry onto the land by the enforcement officer
(including entry by force if necessary) for the purpose of
showing the land to prospective purchasers; and
(b) authorising entry onto the land by prospective purchasers in the
presence of the enforcement officer.
(2) The order may also authorise the enforcement officer to do either or
both of the following:
(a) secure entry onto the land (including by breaking or replacing
locks, bars and other devices restricting entry, if necessary);
(b) take the steps necessary to prevent people from entering the
land.

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.5 Enforcement of money orders—seizure and sale orders
Rule 2220

(3) Part 6.2 (Applications in proceedings) does not apply to an

application under this rule.
(4) An application under this rule need not be served on anyone unless
the court otherwise orders on its own initiative.
(5) Unless the court otherwise orders on its own initiative, an application
under this rule must be dealt with without a hearing and in the absence
of the parties.
(6) This rule does not affect any other power of the court to make orders.
(7) In this rule:
land includes premises on land.

2220 Seizure and sale order—sale at best price obtainable

(1) This rule applies if the property seized under a seizure and sale order
is not sold under rule 2216 (Seizure and sale order—nature of sale).
(2) The enforcement officer or enforcement creditor may apply to the
court for an order to sell the property at the best price obtainable.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(3) The application must be accompanied by an affidavit, or a report by

the enforcement officer, in support of the application giving details of
the required steps for sale that have been taken.
(4) A copy of the application and affidavit must be served on the
enforcement debtor and any other interested party.

2221 Seizure and sale order—advertisement of sale

(1) Before selling property seized under a seizure and sale order, an
enforcement officer must arrange advertisement of a notice giving—
(a) the time and place of sale; and
(b) details of the property to be sold.

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—seizure and sale orders Division 2.18.5
Rule 2221

(2) The notice must be published in a daily newspaper circulating

generally in the ACT on 2 different days.
(3) Both of the days mentioned in subrule (2) must be not more than
4 weeks before the day of the sale and at least 1 of the days must be
not less than 2 weeks before the day of the sale.
(4) However, the enforcement officer may sell the seized property
without arranging the advertisements if—
(a) the property is perishable; or
(b) the enforcement debtor asks in writing for the property to be sold
without the advertisements and the enforcement creditor
consents.
(5) Also, if the seized property is put up for sale at a public auction to be
conducted by someone other than an enforcement officer—
(a) it is sufficient for the notice to contain only the details
reasonable and usual for a public auction of property of the same
nature as the seized property; and
(b) advertisement of the notice may be done in the way reasonable
and usual for a public auction of property of the same nature as
the seized property; and
(c) an enforcement officer may require any other advertising the
enforcement officer considers reasonable.
(6) At least 48 hours before the day of the auction, the enforcement
officer must serve on the enforcement debtor a notice stating the date,
time and place of the auction and the property to be auctioned.
(7) The advertisement must not contain any statement to the effect, or
from which it can be inferred, that the auction is of property seized
under a seizure and sale order.

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.5 Enforcement of money orders—seizure and sale orders
Rule 2222

2222 Seizure and sale order—postponement of sale

(1) On application by an enforcement officer, the enforcement creditor
or the enforcement debtor, the court may order that the sale of
property seized under a seizure and sale order be postponed to a stated
date.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(2) For a sale of personal property, the stated date must not be later than
12 weeks after the day the property was seized unless the court
otherwise orders.
(3) If the order authorising the sale would otherwise end before the stated
date, the postponement automatically extends the order until the end
of the stated date.

2223 Seizure and sale order—amounts received

(1) An enforcement officer must pay to the registrar all proceeds of sale
and other amounts received by the enforcement officer under a
seizure and sale order.
(2) From the amounts received from the enforcement officer, the registrar
must—
(a) pay the enforcement officer’s fees and costs of enforcement
(including any costs of valuing and advertising property); and
(b) pay any balance, up to the amount recoverable under the seizure
and sale order, to the enforcement creditor; and
(c) pay any remaining balance to the enforcement debtor.
(3) If the enforcement officer receives seizure and sale orders in relation
to more than 1 enforcement creditor, the enforcement creditors must
be paid from the proceeds of sale in the order in which the seizure and
sale orders were received by the enforcement officer.

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—seizure and sale orders Division 2.18.5
Rule 2224

(4) The registrar must give the enforcement debtor and enforcement
creditor an account showing how the amounts received have been
paid.

2224 Seizure and sale order—terms about payment

(1) An enforcement officer must sell property seized under a seizure and
sale order on terms that the purchaser of an item of the property—
(a) must pay—
(i) 10% of the purchase price as a deposit immediately after
the sale; and
(ii) the balance of the purchase price within the period (not
longer than 2 days after the day of the sale) that the
enforcement officer decides before the sale; or
(b) must pay all the purchase price immediately after the sale.
(2) An enforcement officer must require payment of the purchase price
to be in cash or by bank draft, electronic funds transfer, debit card or
credit card.
(3) If payment is made by electronic funds transfer, debit card or credit
card, any charge made for the payment must be included in the costs
of enforcement.

2225 Seizure and sale order—securities held by enforcement

officer
(1) This rule applies if an enforcement officer seizes a cheque, bill of
exchange, promissory note, bond, specialty, or another security for
money, (the seized document) under a seizure and sale order.
(2) The enforcement officer holds the seized document as security for the
amount to be recovered under the seizure and sale order for the benefit
of the enforcement creditor.

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.5 Enforcement of money orders—seizure and sale orders
Rule 2226

(3) The enforcement officer may sue in the officer’s own name for, and
recover, an amount payable under the seized document from the
person liable under it.
(4) Payment to the enforcement officer of an amount payable under the
seized document discharges the person liable under the document to
the extent of the payment.

2226 Seizure and sale order—personal property subject to

conditional bill of sale
(1) This rule applies if personal property subject to a seizure and sale
order is in the enforcement debtor’s possession and is also subject to
a conditional bill of sale.
(2) An enforcement officer may sell the enforcement debtor’s interest in
the property without taking possession of it.
(3) On receiving written notice that a person (the purchaser) has
purchased the interest, the person having the benefit of the bill of sale
(the holder of the bill) may take possession of the property.
(4) If the holder of the bill takes possession of the property, the holder is
taken to hold it for the use of the purchaser, subject to the purchaser’s
payment of any amounts payable under the bill of sale.
(5) If the property is later sold under the bill of sale and any surplus
remains from the proceeds of sale after the debt to the holder of the
bill is satisfied, the holder must pay the surplus to the purchaser.
(6) This rule does not affect the right of the enforcement creditor to test
the validity of the bill of sale by interpleader.

2227 Seizure and sale order—effect of sale of property

(1) A sale of property by an enforcement officer under this division is as
valid as if the property had been sold to the purchaser by the
enforcement debtor personally.

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—seizure and sale orders Division 2.18.5
Rule 2228

(2) In an instrument executed by an enforcement officer in relation to

land, a statement in the instrument to the effect that—
(a) the land has been sold under a seizure and sale order; and
(b) the seizure and sale order was made for the enforcement of a
money order made in a proceeding stated in the order;
is admissible in any proceeding as evidence of those facts.

2228 Seizure and sale order—effect of ending of order on

completion of sale etc
Subject to any order made by the court under rule 2056 (Enforcement
orders—orders about enforcement)—
(a) the ending of a seizure and sale order under rule 2052
(Enforcement orders—duration and renewal of certain
enforcement orders given to enforcement officers) does not
affect any agreement for sale or other transaction entered into
under the authority of the order before the order ends; and
(b) any action necessary to complete the sale or give effect to the
transaction may be taken as if the order were still in force.

2229 Seizure and sale order—appropriation of payments

towards order debt
Unless the court otherwise orders, any payment made on account of
an order debt is to be appropriated—
(a) first towards the part of the order debt that is costs; and
(b) second towards the part of the order debt that is interest; and
(c) third toward the balance of the order debt.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
otherwise ordering.

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.5 Enforcement of money orders—seizure and sale orders
Rule 2230

2230 Seizure and sale order—documents giving effect to sale

(1) If land is sold at auction under a seizure and sale order, the
enforcement officer and the purchaser must each sign an appropriate
contract of sale immediately after the auction.
(2) Unless the court otherwise orders, the settlement date under the
contract of sale must not be later than 90 days after the day of the
auction.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
otherwise ordering.

(3) As soon as practicable after receiving payment in full for land sold
under a seizure and sale order, an appropriate transfer prepared by the
purchaser must be executed by the enforcement officer and given to
the purchaser for the purpose of giving effect to the sale.

2231 Seizure and sale order—payment to enforcement debtor

(1) An enforcement creditor on whose application a seizure and sale
order has been made may file in the court—
(a) an agreement with the enforcement debtor about the amount of
the enforcement creditor’s costs of enforcement (a costs
agreement); or
Note Rule 1702 (Costs—agreement about costs) applies to the
agreement.

(b) a bill of costs.

(2) A costs agreement or bill of costs must be filed—
(a) not later than 2 months after the day an enforcement officer
receives the proceeds of any sale under the seizure and sale
order; or
(b) within any longer time the enforcement debtor agrees to in
writing.

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—seizure and sale orders Division 2.18.5
Rule 2232

(3) If the enforcement creditor files a costs agreement in accordance with

subrule (2), the registrar must pay the enforcement debtor any amount
held by the court over the amount necessary to satisfy the seizure and
sale order.
(4) If the enforcement creditor files a bill of costs in accordance with
subrule (2), the registrar must pay the enforcement debtor, before
assessing the costs, any amount held by the court over the amount
that, on the basis of the amount claimed in the bill of costs, is
necessary to satisfy the seizure and sale order.
(5) If the enforcement creditor does not file a costs agreement or bill of
costs in accordance with subrule (2), the registrar may pay the
enforcement debtor any amount held by the court over the total
amount necessary to satisfy the seizure and sale order (including
interest) and the costs of enforcement then known to the registrar.
(6) The registrar must pay the enforcement creditor any of the proceeds
of sale that the registrar is not required by this rule to pay to the
enforcement debtor.
(7) This rule does not affect the right of the enforcement creditor to
recover from the enforcement debtor the costs of enforcement of the
seizure and sale order.

2232 Seizure and sale order—purchase by enforcement officer

or auctioneer prohibited
(1) This rule applies to—
(a) an enforcement officer; or
(b) a real estate agent or auctioneer appointed or engaged by an
enforcement officer in relation to a seizure and sale order; or
(c) an employee of the real estate agent or auctioneer.

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.5 Enforcement of money orders—seizure and sale orders
Rule 2233

(2) A person to whom this rule applies is not entitled—

(a) to bid at an auction at which property seized under the order is
offered for sale; or
(b) to purchase, personally or for someone else, any property seized
under the order at auction or by private agreement.

2233 Seizure and sale order—account etc

(1) This rule applies to a person if the person—
(a) is a real estate agent or auctioneer; and
(b) is appointed or engaged by an enforcement officer in relation to
a seizure and sale order.
(2) The person must tell an enforcement officer the amount of the
person’s charges in relation to the seizure and sale order as soon as
practicable after—
(a) being told by the enforcement officer that the person’s services
are not required, or will no longer be required, in relation to the
order; or
(b) being asked by an enforcement officer for an account of the
person’s charges in relation to the order.
(3) The person must, as soon as practicable after receiving any amount
under a seizure and sale order, pay the amount, less the person’s
charges, to an enforcement officer.

2234 Seizure and sale order—report by enforcement officer

(1) If an enforcement officer sells property seized under a seizure and
sale order, the enforcement officer must, on request by the registrar,
enforcement creditor or enforcement debtor, give a report of the sale
of the property seized under a seizure and sale order.

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—seizure and sale orders Division 2.18.5
Rule 2235

(2) The report must include an account of—

(a) the proceeds of the sale and any other amount received by the
enforcement officer under the seizure and sale order; and
(b) all the costs and charges incurred in giving effect to the order,
including any costs of removing the property from where it was
seized and advertising the sale; and
(c) how the proceeds and other amount (if any) have been disposed
of.

2235 Seizure and sale order—order for disposal and return of

property to enforcement debtor
(1) If property seized under a seizure and sale order remains unsold after
being offered for sale at an auction, the court may, on application by
the enforcement creditor, make an order for the disposal of the
property.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(2) An application under subrule (1) must be made not later than 4 weeks
after the day of the auction.
(3) In considering whether to make an order for the disposal of the
property, the court must have regard to—
(a) the amount of the enforcement debt and costs and charges
remaining unpaid; and
(b) any hardship that would be imposed on the enforcement creditor
if the order were not made and on the enforcement debtor if the
order were made.
(4) If—
(a) the enforcement creditor does not make an application in
accordance with subrule (2) in relation to property remaining
unsold; or

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.6 Enforcement of money orders—debt redirection orders generally
Rule 2300

(b) the court refuses to make an order under subrule (1) for the
disposal of property remaining unsold;
the property must be returned to the enforcement debtor.

Division 2.18.6 Enforcement of money orders—debt

redirection orders generally
2300 Application—div 2.18.6
(1) This division applies if a debt is, or is likely to become, payable by a
person (a third person) to the enforcement debtor for a money order.
Note Div 2.18.7 also applies if the third person is a financial institution and
regular redirection of amounts is, or is to be, authorised.

(2) However, this division does not apply to—

(a) a redirection of earnings; or
(b) an order for the payment of money into court.
Note Div 2.18.8 deals with earnings redirection orders.

2301 Debt redirection order—making

(1) On application by the enforcement creditor or enforcement debtor for
an enforceable money order of the court, the court may make an order
(a debt redirection order) authorising the redirection to the
enforcement creditor of the third person’s debt to the enforcement
debtor.
(2) To remove any doubt, a single debt redirection order may be made in
relation to 2 or more debts.
(3) A debt may be redirected only if the debt is payable or accruing to the
enforcement debtor by the third person on the day the order for
redirection of the debt is served on the third person.
Note See r 2050 (Enforcement orders—content and issue) for provisions about
the content and issue of the order.

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—debt redirection orders generally Division 2.18.6
Rule 2302

2302 Debt redirection order—application

(1) An application for a debt redirection order is made by filing in the
court—
(a) a draft of the order sought; and
(b) an affidavit in support of the application.
Note See approved form 2.62 (Debt redirection order) AF2006-307.

(2) The affidavit in support must state—

(a) the date the money order was made; and
(b) the date a sealed copy of the money order, and the notice in
accordance with rule 2015 (2), was served on the enforcement
debtor; and
(c) the amount of the order debt; and
(d) that the order debt has not been fully paid; and
(e) the date and amount of each payment (if any) made under the
money order; and
(f) the costs incurred in previous enforcement proceedings in
relation to the money order; and
(g) the interest owing on the day the affidavit is made (the affidavit
date); and
(h) any other details necessary to work out the amount payable
under the money order on the affidavit date and how the amount
is worked out; and
(i) the daily amount of any interest that, subject to any future
payment under the money order, will accrue after the affidavit
date; and
(j) the name of the third person; and

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.6 Enforcement of money orders—debt redirection orders generally
Rule 2303

(k) the amount of the debt that appears to be owed by the third
person to the enforcement debtor; and
(l) any other information necessary for the order being sought.
(3) The affidavit must be sworn not earlier than 2 days before the day the
application is filed in the court.
(4) Part 6.2 (Applications in proceedings) does not apply to the
application.
(5) The affidavit and draft order need not be served on anyone unless the
court otherwise orders on its own initiative.
(6) Unless the court otherwise orders on its own initiative, an application
for a debt redirection order must be dealt with without a hearing and
in the absence of the parties.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
otherwise ordering.

2303 Debt redirection order—relevant considerations

(1) In deciding whether to make a debt redirection order, the court must
have regard to the following matters, as far as they are known to the
court:
(a) the enforcement debtor’s means of satisfying the order debt;
(b) whether the order debt, including any interest, will be satisfied
within a reasonable time;
(c) the necessary living expenses of the enforcement debtor and the
enforcement debtor’s dependants;
(d) other liabilities of the enforcement debtor;
(e) the amount of the order debt;
(f) the amount of the debt to be redirected and the amount of each
instalment (if any);

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—debt redirection orders generally Division 2.18.6
Rule 2304

(g) if the applicant is the enforcement debtor—whether, having

regard to the availability of other enforcement means, making
the order would be consistent with the public interest in
enforcing orders justly, efficiently and quickly;
(h) whether, having regard to the nature of the debt and the kind of
redirection, the redirection is appropriate.
(2) Subrule (1) does not limit the matters to which the court may have
regard.
(3) In deciding the amount of the debt to be redirected under the order
and the amount of each instalment (if any), the court must be satisfied
that the order will not impose unreasonable hardship on the
enforcement debtor or any dependant of the enforcement debtor.
(4) However, an enforcement hearing is not necessary before the court
makes the debt redirection order.

2304 Debt redirection order—joint funds

(1) This rule applies if the debt belonging to the enforcement debtor is a
fund of money owned by the enforcement debtor and others (a joint
fund).
(2) A debt redirection order may authorise redirection to an enforcement
creditor of the joint fund to the extent of the enforcement debtor’s
entitlement.
(3) Unless, on application of a fund owner or enforcement creditor, the
court decides the actual beneficial entitlement of each fund owner, it
is presumed a joint fund is owned by the fund owners in equal shares.
Note Pt 6.2 (Applications in proceedings) applies to an application under r (3).

2305 Debt redirection order—partnership debts

A court may make a debt redirection order in relation to debts
belonging to an enforcement debtor from a partnership carrying on
business in the ACT even if a partner lives outside the ACT.

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.6 Enforcement of money orders—debt redirection orders generally
Rule 2306

2306 Debt redirection order—account with financial institution

(1) An amount standing to the credit of an enforcement debtor in an
account with a financial institution is, for enforcing a money order, a
debt payable by the financial institution to the enforcement debtor.
(2) Subrule (1) applies even if any of the following conditions applying
to the account have not been satisfied:
(a) a condition requiring a demand or notice to be made or given
before an amount is withdrawn;
(b) a condition about how, or the place where, a demand is to be
made;
(c) a condition requiring a personal application to be made before
an amount is withdrawn;
(d) a condition requiring the production of a deposit book, receipt
or anything else for an amount deposited in the account before
the amount is withdrawn;
(e) a condition requiring an amount not be withdrawn for a stated
period;
(f) a condition requiring a minimum amount for a withdrawal;
(g) a condition requiring a minimum balance to be maintained in the
account;
(h) a similar condition.
(3) This rule applies, with any necessary changes, to an amount that is
placed to the credit of an enforcement debtor in an account in a
financial institution between the date of the debt redirection order and
any hearing deciding the validity of the order.

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—debt redirection orders generally Division 2.18.6
Rule 2307

2307 Debt redirection order—claim by someone else

(1) This rule applies if—
(a) the court is considering making, or has made, a debt redirection
order for a debt; and
(b) the court considers that someone other than the enforcement
debtor who may be entitled to all or a part of the debt, or to a
charge or lien on it, (an interested person) should be given the
opportunity to object.
(2) The court may, on its own initiative, give the directions it considers
appropriate for deciding the interested person’s entitlement.
Examples of directions
1 that a stamped copy of a debt redirection order be served on a person who may
be an interested person
2 that a stamped copy of an objection, supporting affidavit, or response to an
objection, filed under rule 2311 (Debt redirection order—third person disputes
liability) be served on a person who may be an interested person
3 that a person who may be an interested person be given an opportunity to file
a notice of objection and supporting affidavit
4 directions for deciding any question arising out of a notice of objection or
supporting affidavit

2308 Debt redirection order—when debt redirected

(1) A debt redirection order must be served on the third person to have
effect.
(2) On the service of the order, all debts then payable or accruing from
the third person to the enforcement debtor are redirected in the hands
of the third person to the enforcement creditor to the extent of the
amount recoverable under in the order.

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.6 Enforcement of money orders—debt redirection orders generally
Rule 2309

2309 Debt redirection order—notice by third person to

enforcement creditor
If a debt redirection order attaches a debt that is payable to the
enforcement debtor later than 28 days after the day the order is served
on the third person, the third person must, before the end of that
period, serve on the enforcement creditor a notice stating—
(a) the date the debt is, or is likely to be, payable to the enforcement
debtor; and
(b) if the amount of the debt is less than the unpaid amount of the
amount recoverable under the money order—the amount of the
debt.

2310 Debt redirection order—payments by third person

(1) Payments under a debt redirection order must be made in accordance
with, and to the enforcement creditor stated in, the order.
(2) Out of each amount redirected under the order, the third person may
deduct a reasonable amount to cover the third person’s costs and
expenses of complying with the order.

2311 Debt redirection order—third person disputes liability

(1) This rule applies if—
(a) a debt redirection order is served on the third person; and
(b) the third person disputes liability to pay any debt to the
enforcement debtor.
(2) The third person may file a notice of objection in the court.
(3) The notice must be filed not later than 7 days after the day the order
is served on the third person.
(4) The notice must be accompanied by an affidavit in support stating the
facts relied on by the third person.

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—debt redirection orders generally Division 2.18.6
Rule 2312

(5) The disclosure of any information in the affidavit does not subject the
third person to any liability if the disclosure was reasonable in the
circumstances.
(6) The filing of the notice stays any obligation of the third person to pay
the debt to the enforcement debtor or enforcement creditor but does
not stay any accrual of interest on the debt.
(7) The third person must serve a stamped copy of the notice and
supporting affidavit on the enforcement creditor and enforcement
debtor.
(8) The enforcement debtor or enforcement creditor may file in the court
an affidavit in response to the notice of objection.
(9) The court may—
(a) decide the question of liability without a hearing and in the
absence of the parties; or
(b) on its own initiative, give directions for the question to be
decided.
(10) To remove any doubt, part 6.2 (Applications in proceedings) does not
apply to a notice of objection, or response to a notice of objection,
under this rule.

2312 Debt redirection order—discharge of third person

(1) A payment to an enforcement creditor made by the third person in
accordance with a debt redirection order is a valid discharge of the
third person’s liability to the enforcement debtor to the extent of the
amount paid.
(2) This rule applies even if, after the payment, the debt redirection order
is set aside or the money order from which it arose is amended or set
aside.

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.6 Enforcement of money orders—debt redirection orders generally
Rule 2313

2313 Debt redirection order—payment to enforcement debtor

despite redirection
(1) This rule applies if, after redirection of a debt in the hands of the third
person—
(a) the third person acts with reasonable diligence to give effect to
the redirection; and
(b) although the third person acts with reasonable diligence, the
third person deals with the redirected debt in a way that satisfies,
as between the third person and the enforcement debtor, all or
part of the redirected debt, including, for example, by payment
to the enforcement debtor.
(2) On application by the third person or other interested person, the court
may order that, for this division, the redirected debt be reduced to the
extent of its satisfaction.
Note Pt 6.2 (Applications in proceedings) applies to an application under this
rule.

2314 Debt redirection order—amending, suspending or setting

aside
(1) On application by the enforcement creditor or enforcement debtor,
the court may make an order amending, suspending or setting aside a
debt redirection order.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(2) The registrar must give notice of the date and time the application is
to be heard to the enforcement creditor, enforcement debtor and third
person.
(3) After hearing the application, the court may make 1 or more of the
following orders:
(a) an instalment order;

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—debt redirection orders generally Division 2.18.6
Rule 2314

(b) an order amending, suspending or setting aside the debt

redirection order;
(c) a regular redirection order;
(d) an earnings redirection order.
(4) In considering whether to make an order mentioned in subrule (3), the
court must have regard to—
(a) the order (if any) preferred by the enforcement debtor; and
(b) the likelihood of the enforcement debtor complying with an
instalment order; and
(c) the property and financial circumstances of the enforcement
debtor, including any other enforcement orders (however
described) in force against the enforcement debtor; and
(d) any other information that the court considers is relevant and
reliable.
(5) Subrule (4) does not limit—
(a) the other matters to which the court must have regard in deciding
whether to make an instalment order or earnings redirection
order; or
Note For these matters, see—
• r 2154 (Instalment order—relevant considerations)
• r 2352 (Earnings redirection order—relevant considerations).

(b) the other matters to which the court may have regard.
(6) If the court makes an order amending, suspending or setting aside the
debt redirection order under this rule—
(a) the registrar must serve a sealed copy of the order on the
enforcement creditor, enforcement debtor and third person; and
(b) the order does not come into force until the end of 7 days after
the day it is served on the third person.

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.6 Enforcement of money orders—debt redirection orders generally
Rule 2315

2315 Debt redirection order—procedure if order not complied

with
(1) If the enforcement creditor considers that a debt redirection order has
not been complied with, the court may, on application by the
enforcement creditor, hear and decide any question about the liability
of the third person to pay the debt to which the order applies.
Note Pt 6.2 (Applications in proceedings) applies to an application under this
rule.

(2) If the court is satisfied that the third person is liable to pay the debt
and has not complied with the debt redirection order, the court may
make an order against the third person in favour of the enforcement
creditor for the lesser of—
(a) the amount that has not been paid to the enforcement creditor as
required by the debt redirection order; and
(b) the unpaid amount of the order debt.
(3) The court may refuse to make an order under subrule (2) if it
considers the order should not be made because of the smallness of
either of the amounts mentioned in subrule (2) (a) or (b), or for any
other reason.
(4) As between the third person and the enforcement debtor, an amount
paid to the enforcement creditor by the third person under an order
under this rule is taken to have been paid by the third person to the
enforcement debtor.

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—regular redirections from financial Division 2.18.7
institutions
Rule 2330

Division 2.18.7 Enforcement of money orders—

regular redirections from financial
institutions
2330 Application—div 2.18.7
This division applies if—
(a) the enforcement debtor for an enforceable money order of the
court has an account with a financial institution; and
(b) the financial institution or someone else (the fourth person)
regularly deposits earnings, interest or rent into the account (the
regular deposit).

2331 Regular redirection order—application of div 2.18.6

(1) The provisions of division 2.18.6 (other than the non-applied
provisions) apply, with any necessary changes, to a regular
redirection order under this division as if a reference to the third
person were a reference to the financial institution.
(2) In this rule:
non-applied provisions means the following provisions:
• rule 2301 (3) (Debt redirection order—making)
• rule 2308 (Debt redirection order—when debt redirected)
• rule 2310 (Debt redirection order—payments by third person).

2332 Regular redirection order—making

(1) On application by the enforcement creditor or enforcement debtor for
the money order, the court may make an order (a regular redirection
order) authorising the regular redirection to the enforcement creditor
of all or part of a regular debt.
Note See approved form 2.63 (Regular redirection order) AF2006-308.

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.7 Enforcement of money orders—regular redirections from financial
institutions
Rule 2333

(2) In this rule:

regular debt means a debt, belonging to the enforcement debtor, from
the financial institution because of the regular deposit by the fourth
person.

2333 Regular redirection order—content

A regular redirection order must state the following:
(a) the name of the financial institution that must deduct amounts
from a regular deposit;
(b) details of the enforcement debtor’s account from which the
deduction is to be made;
(c) the name and address of the fourth person;
Note For the meaning of fourth person, see r 2330.

(d) the amount that the financial institution must deduct each time a
regular deposit is made;
(e) the name and address of the enforcement creditor to whom the
financial institution must give the deducted amount.
Note The order must also state the matters mentioned in r 2050 (Enforcement
orders—content and issue).

2334 Regular redirection order—service and coming into force

(1) This rule applies if the court makes a regular redirection order,
whether or not on the enforcement creditor’s application.
Note The registrar must give a sealed copy of the order to the enforcement
creditor (see r 2050 (4)).

(2) The enforcement creditor must serve a sealed copy of the order
personally or by prepaid post on the financial institution and the
enforcement debtor.
(3) The order does not come into force until the end of 7 days after the
day the order is served on the financial institution.

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—regular redirections from financial Division 2.18.7
institutions
Rule 2335

2335 Regular redirection order—financial institution to make

payments etc
(1) For each regular deposit into the enforcement debtor’s account while
the regular redirection order is in force, the financial institution—
(a) must, not later than 3 days after the day the deposit is made,
deduct from the account the amount stated in the order and pay
it to the enforcement creditor stated in the order; and
(b) may deduct from the account a reasonable administration charge
and keep it as a contribution towards the administrative cost of
making payments under the order; and
(c) must, at least once a month, give the enforcement debtor a notice
detailing the deductions.
(2) Any charge deducted under subrule (1) (b) must not be more than—
(a) if the financial institution has an amount it usually charges its
customers for making periodic payments—that amount; or
(b) otherwise—an amount that covers the financial institution’s
costs and expenses of complying with the order.
(3) In applying subrule (1) (a) to the last deduction, the financial
institution must deduct the amount (not more than the amount stated
in the order for deduction for each regular deposit) that results in the
total amount deducted under the order being the total amount for
deduction stated in the order.
(4) A deduction paid or kept by a financial institution under subrule (1)
is a valid discharge of the financial institution’s liability to the
enforcement debtor to the extent of the deduction.

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.7 Enforcement of money orders—regular redirections from financial
institutions
Rule 2336

2336 Regular redirection order—enforcement debtor not to

defeat order
(1) The enforcement debtor must ensure that sufficient funds remain in
the enforcement debtor’s account after each regular deposit for the
deduction from the account of the amount stated in the order.
(2) The enforcement debtor must tell the enforcement creditor in writing
if—
(a) the fourth person discontinues making the regular deposit; or
Note For the meaning of fourth person, see r 2330.

(b) the enforcement debtor closes the account or arranges for the
fourth person to pay the enforcement debtor in another way.

2337 Regular redirection order—no other enforcement while in

force
Unless the court otherwise orders, while a regular redirection order is
in force in relation to a money order, no other enforcement order may
be made in relation to the money order.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
otherwise ordering.

2338 Regular redirection order—ceasing to have effect

(1) A regular redirection order ceases to have effect when—
(a) the order debt is satisfied; or
(b) the regular redirection order is set aside or ends in accordance
with its terms.

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—regular redirections from financial Division 2.18.7
institutions
Rule 2339

(2) If a regular redirection order ceases to have effect otherwise than

because of an order the enforcement creditor is required under these
rules to serve on the financial institution, the enforcement creditor
must give notice to the financial institution that the regular redirection
order has ceased to have effect.
(3) The enforcement creditor must file a copy of the notice in the court.
(4) If a regular redirection order ceases to have effect, the financial
institution does not incur any liability by treating the order as still in
force at any time before the end of 7 days after the day either of the
following is given to the financial institution:
(a) a sealed copy of the order because of which the regular
redirection order ceases to have effect;
(b) the notice mentioned in subrule (2).

2339 Regular redirection order—return of excess

(1) If a regular redirection order is made for an order debt and the
enforcement creditor receives from the financial institution more than
the amount payable under the order—
(a) the enforcement creditor must return the excess to the financial
institution; and
(b) the financial institution must deposit it to the account from
which amounts were deducted under the regular redirection
order or otherwise deal with it in accordance with the
enforcement debtor’s written request.
(2) If the enforcement creditor does not return the excess, the
enforcement debtor may recover it as a debt owing to the debtor.
(3) For subrule (2), interest is payable on the amount of the excess as if
the excess were an order debt.

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.7 Enforcement of money orders—regular redirections from financial
institutions
Rule 2340

2340 Regular redirection order—record of payments

(1) If a regular redirection order is made for an order debt, the
enforcement creditor must make a record of the amount and date of
each payment received by the enforcement creditor under the regular
redirection order.
(2) The enforcement creditor must keep the record for at least 6 years
after the day the last payment is made under the regular redirection
order.
(3) The enforcement debtor is entitled, at any reasonable time while the
record is being kept, to inspect the record and make a copy of, or take
an extract from, the record.
(4) If the enforcement debtor asks for a copy of all or part of the record
while it is being kept, the enforcement creditor must give the copy to
the enforcement debtor on payment of a reasonable charge for
preparing the copy.
(5) On application by the enforcement debtor, the court may make any
order it considers appropriate to ensure compliance with this rule,
including, for example—
(a) an order requiring the enforcement creditor to—
(i) file in the court a copy of all or part of the record verified
by affidavit; or
(ii) give the enforcement debtor a copy of all or part of the
record; or
(b) an order that the enforcement creditor is not entitled to interest
on the order debt for all or part of a period.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—earnings redirection orders Division 2.18.8

Rule 2350

Division 2.18.8 Enforcement of money orders—

earnings redirection orders
2350 Earnings redirection order—making
On application by the enforcement creditor or enforcement debtor for
an enforceable money order of the court, the court may make an order
(an earnings redirection order) authorising redirection to the
enforcement creditor of particular earnings of the enforcement debtor
from an employer of the enforcement debtor.
Note 1 Employer of an enforcement debtor is defined in r 2000.
Note 2 An earnings redirection order may be made at an enforcement hearing
(see r 2112 (Enforcement hearing—orders)).

2351 Earnings redirection order—application

(1) An application for an earnings redirection order is made by filing in
the court—
(a) a draft of the order sought; and
(b) an affidavit in support of the application.
Note See approved form 2.64 (Earnings redirection order) AF2018-41.

(2) The affidavit in support must state—

(a) the date the money order was made; and
(b) the date a sealed copy of the money order, and the notice in
accordance with rule 2015 (2), was served on the enforcement
debtor; and
(c) the amount of the order debt; and
(d) that the order debt has not been fully paid; and
(e) the date and amount of each payment (if any) made under the
order; and

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.8 Enforcement of money orders—earnings redirection orders

Rule 2352

(f) the costs incurred in previous enforcement proceedings in

relation to the order; and
(g) the interest owing on the day the affidavit is made (the affidavit
date); and
(h) any other details necessary to work out the amount payable
under the order on the affidavit date and how the amount is
worked out; and
(i) the daily amount of any interest that, subject to any future
payment under the order, will accrue after the affidavit date; and
(j) any other information necessary for the order being sought.
(3) The affidavit must be sworn not earlier than 2 days before the day the
application is filed in the court.
(4) Part 6.2 (Applications in proceedings) does not apply to the
application.
(5) The affidavit and draft order need not be served on anyone unless the
court otherwise orders on its own initiative.
(6) Unless the court otherwise orders on its own initiative, an application
for an earnings redirection order must be dealt with without a hearing
and in the absence of the parties.

2352 Earnings redirection order—relevant considerations

(1) In deciding whether to make an earnings redirection order, the court
must have regard to the following matters, as far as they are known
to the court:
(a) the enforcement debtor’s means of satisfying the order debt;
(b) whether the order debt, including any interest, will be satisfied
within a reasonable time;
(c) the necessary living expenses of the enforcement debtor and the
enforcement debtor’s dependants;

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—earnings redirection orders Division 2.18.8

Rule 2353

(d) other liabilities of the enforcement debtor;

(e) the amount of the order debt;
(f) the amount of the earnings to be redirected each payday;
(g) if the applicant is the enforcement debtor—whether, having
regard to the availability of other enforcement means, making
the order would be consistent with the public interest in
enforcing orders justly, efficiently and quickly.
(2) Subrule (1) does not limit the matters to which the court may have
regard.
(3) In deciding the amount and timing of the earnings to be redirected
under the order on each payday, the court must be satisfied that the
order will not impose unreasonable hardship on the enforcement
debtor or any dependant of the enforcement debtor.
(4) However, an enforcement hearing is not necessary before the court
makes the earnings redirection order.

2353 Earnings redirection order—limit

(1) The court must not make an earnings redirection order for the
enforcement debtor that would reduce the total earnings of the
enforcement debtor to an amount that is less than 80% of the debtor’s
net earnings.
(2) In this rule:
net earnings means gross earnings per week or another appropriate
period after any required deduction of tax.

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.8 Enforcement of money orders—earnings redirection orders

Rule 2354

2354 Earnings redirection order—information about

enforcement debtor’s earnings
To decide whether to make an earnings redirection order, the court
may order a person the court considers may pay earnings to the
enforcement debtor to give the court a signed statement setting out
details of—
(a) the earnings owing to the debtor; and
(b) the earnings payable to the debtor from time to time.
Note The court may also order that an enforcement hearing be held (see r 2101
(Enforcement hearing—otherwise than on enforcement creditor’s
application)).

2355 Earnings redirection order—content

An earnings redirection order must state—
(a) the name of the enforcement debtor; and
(b) the name of the enforcement debtor’s employer who must
deduct from the enforcement debtor’s earnings; and
(c) the total amount the employer must deduct from the
enforcement debtor’s earnings; and
(d) if an amount is required to be deducted from the enforcement
debtor’s earnings each payday—the amount; and
(e) the name and address of the enforcement creditor to whom the
employer must pay the deductions.
Note The order must also state the matters mentioned in r 2050 (Enforcement
orders—content and issue).

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—earnings redirection orders Division 2.18.8

Rule 2356

2356 Earnings redirection order—service and coming into

force
(1) This rule applies if the court makes an earnings redirection order,
whether or not on the enforcement creditor’s application.
Note The registrar must give a sealed copy of the order to the enforcement
creditor (see r 2050 (4)).

(2) The enforcement creditor must serve a sealed copy of the order
personally or by prepaid post on the enforcement debtor’s employer
and the enforcement debtor.
(3) The enforcement creditor must also serve on the enforcement debtor’s
employer—
(a) a notice telling the enforcement debtor’s employer of the effect
of the order and the employer’s obligations under this division;
and
Note See approved form 2.65 (Notice to employer—earnings redirection
order) AF2018-42.

(b) a copy of a notice that the employer may use if the debtor is not
employed by the employer.
Note See approved form 2.66 (Notice that debtor not employee)
AF2006-311.

(4) The order does not come into force until the end of 7 days after the
day it is served on the employer.

2357 Earnings redirection order—person served not employer

(1) This rule applies if—
(a) an earnings redirection order is served on a person on the basis
that the person is the enforcement debtor’s employer; and
(b) the person is not the enforcement debtor’s employer when the
order is served on the person.

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.8 Enforcement of money orders—earnings redirection orders

Rule 2358

(2) The person must immediately tell the registrar, in writing, that the
person is not the enforcement debtor’s employer.
Note See approved form 2.66 (Notice that debtor not employee) AF2006-311.

(3) To remove any doubt, the person is not bound by the order.

2358 Earnings redirection order—employer to make payments

etc
(1) For each payday while an earnings redirection order is in force, the
enforcement debtor’s employer—
(a) must deduct from the enforcement debtor’s earnings the amount
stated in the order (the deducted amount); and
(b) may withhold from the deducted amount a reasonable
administration charge and keep it as a contribution towards the
administrative cost of making payments under the order; and
(c) must pay the deducted amount less any administration charge to
the person stated in the order; and
(d) must give the enforcement debtor a notice detailing the
deduction and any administration charge.
(2) Any charge deducted by an employer under subrule (1) (b) must not
be more than—
(a) if the employer has an amount the employer usually charges
employees for making periodic payments—that amount; or
(b) otherwise—an amount that covers the employer’s costs and
expenses of complying with the order.
(3) In applying subrule (1) (a) to the last deduction, the employer must
deduct the amount (not more than the amount stated in the order for
deduction each payday) that results in the total amount deducted
under the order being the total amount for deduction stated in the
order.

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—earnings redirection orders Division 2.18.8

Rule 2359

(4) A deduction paid or kept by an employer under subrule (1) is a valid

discharge as between the employer and the enforcement debtor, to the
extent of the deduction, of the employer’s liability to pay earnings.

2359 Earnings redirection order—no other enforcement while

in force
Unless the court otherwise orders, while an earnings redirection order
is in force in relation to a money order, no other enforcement order
may be made in relation to the money order.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
otherwise ordering.

2360 Earnings redirection order—amending, suspending or

setting aside
(1) On application by the enforcement creditor or enforcement debtor,
the court may make an order amending, suspending or setting aside
an earnings redirection order.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(2) The registrar must give notice of the date and time the application is
to be heard to the enforcement creditor, enforcement debtor and
enforcement debtor’s employer.
(3) After hearing the application, the court may make 1 or more of the
following orders:
(a) an instalment order;
(b) an order amending, suspending or setting aside the earnings
redirection order;
(c) a debt redirection order;
(d) a regular redirection order.

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.8 Enforcement of money orders—earnings redirection orders

Rule 2361

(4) In considering whether to make an order mentioned in subrule (3), the

court must have regard to—
(a) the order (if any) preferred by the enforcement debtor; and
(b) the likelihood of the enforcement debtor complying with an
instalment order; and
(c) the property and financial circumstances of the enforcement
debtor, including any other enforcement orders (however
described) in force against the enforcement debtor; and
(d) any other information that the court considers is relevant and
reliable.
(5) Subrule (4) does not limit—
(a) the other matters to which the court must have regard in deciding
whether to make an instalment order or debt redirection order;
or
Note For these matters, see—
• r 2154 (Instalment order—relevant considerations)
• r 2303 (Debt redirection order—relevant considerations).

(b) the other matters to which the court may have regard.
(6) If the court makes an order amending, suspending or setting aside the
earnings redirection order under this rule—
(a) the registrar must serve a sealed copy of the order on the
enforcement creditor, enforcement debtor and employer; and
(b) the order does not come into force until the end of 7 days after
the day it is served on the employer.

2361 Earnings redirection order—ceasing to have effect

(1) An earnings redirection order for a money order ceases to have effect
when—
(a) the order debt is satisfied; or

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—earnings redirection orders Division 2.18.8

Rule 2362

(b) the earnings redirection order is set aside or ends in accordance

with its terms; or
(c) unless the court otherwise orders, another enforcement order is
made for the money order.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
otherwise ordering.

(2) If an earnings redirection order ceases to have effect otherwise than

because of an order the enforcement creditor is required under these
rules to serve on the enforcement debtor’s employer, the enforcement
creditor must give notice to the employer that the earnings redirection
order has ceased to have effect.
(3) The enforcement creditor must file a copy of the notice in the court.
(4) If an earnings redirection order ceases to have effect, the enforcement
debtor’s employer does not incur any liability by treating the order as
still in force at any time before the end of 7 days after the day either
of the following is given to the employer:
(a) a sealed copy of the order because of which the earnings
redirection order ceases to have effect;
(b) the notice mentioned in subrule (2).

2362 Earnings redirection order—return of excess

(1) If an earnings redirection order is made for an order debt and the
enforcement creditor receives from the enforcement debtor’s
employer more than the amount payable under the order—
(a) the enforcement creditor must return the excess to the employer;
and
(b) the employer must pay it to the enforcement debtor.
(2) If the enforcement creditor does not return the excess, the
enforcement debtor may recover it as a debt owing to the debtor.

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.8 Enforcement of money orders—earnings redirection orders

Rule 2363

(3) For subrule (2), interest is payable on the amount of the excess as if
the excess were an order debt.

2363 Earnings redirection order—record of payments

(1) If an earnings redirection order is made for an order debt, the
enforcement creditor must make a record of the amount and date of
each payment received by the enforcement creditor under the
earnings redirection order.
(2) The enforcement creditor must keep the record for at least 6 years
after the day the last payment is made under the earnings redirection
order.
(3) The enforcement debtor is entitled, at any reasonable time while the
record is being kept, to inspect the record and make a copy of, or take
an extract from, the record.
(4) If the enforcement debtor asks for a copy of all or part of the record
while it is being kept, the enforcement creditor must give the copy to
the enforcement debtor on payment of a reasonable charge for
preparing the copy.
(5) On application by the enforcement debtor, the court may make any
order it considers appropriate to ensure compliance with this rule,
including, for example—
(a) an order requiring the enforcement creditor to—
(i) file in the court a copy of all or part of the record verified
by affidavit; or
(ii) give the enforcement debtor a copy of all or part of the
record; or

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—earnings redirection orders Division 2.18.8

Rule 2364

(b) an order that the enforcement creditor is not entitled to interest

on the order debt for all or part of a period.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

2364 Earnings redirection order—2 or more orders in force

(1) This rule applies if 2 or more earning redirection orders are in force
in relation to the same earnings of an enforcement debtor.
(2) The employer must comply with the orders according to the dates
they were served on the employer and disregard an order served later
until an order served earlier ceases to have effect.
Note Rule 2361 deals with earnings redirection orders ceasing to have effect.

(3) If an earnings redirection order is amended, it continues to have

priority according to the date the original order was served.

2365 Earnings redirection order—person served ceasing to be

employer
(1) This rule applies if—
(a) a person who is an enforcement debtor’s employer is served with
an earnings redirection order; and
(b) the person later ceases to be the enforcement debtor’s employer.
(2) The person must immediately tell the court and enforcement creditor,
in writing, that the person is no longer the enforcement debtor’s
employer.
Note See approved form 2.67 (Notice of cessation of employment)
AF2006-312.

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.8 Enforcement of money orders—earnings redirection orders

Rule 2366

2366 Earnings redirection order—enforcement debtor changes

or ceases employment
(1) This rule applies if an enforcement debtor for whom an earnings
redirection order is in force changes employer or ceases to be
employed.
(2) Not later than 7 days after the day the enforcement debtor changes
employer or ceases employment, the enforcement debtor must tell the
registrar and the enforcement creditor, in writing, the details of the
debtor’s new employer or that the debtor has ceased employment.
Note See approved form 2.68 (Notice by enforcement debtor of change in
employment) AF2006-313.

(3) If the registrar is told under subrule (2) that the enforcement debtor
has changed employer, the court may, on its own initiative—
(a) set aside the existing earnings redirection order; and
(b) make a new earnings redirection order authorising redirection to
the enforcement creditor of earnings of the enforcement debtor
from the new employer.

2367 Earnings redirection order—directions

(1) An employer on whom an earnings redirection order is served may
apply to the court for directions.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(2) The employer must serve a stamped copy of the application on the
enforcement creditor and enforcement debtor.
(3) The enforcement creditor and enforcement debtor are parties to the
application.
(4) On application under this rule, the court may give the directions it
considers appropriate.

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—earnings redirection orders Division 2.18.8

Rule 2368

(5) Without limiting subrule (4), the court may decide whether payments
being made by the employer to the enforcement debtor that are
described in the application are earnings.
(6) While the application or any appeal from a decision made on the
application is pending, the employer does not incur any liability for
failing to comply with the earnings redirection order in relation to
payments mentioned in subrule (5) that are described in the
application.

2368 Earnings redirection order—employment protection

An employer must not dismiss an employee, or otherwise prejudice
an employee in the employee’s employment, because an earnings
redirection order authorising redirection of the employee’s earnings
has been made.

2369 Earnings redirection order—procedure if order not

complied with
(1) If the enforcement creditor considers that an earnings redirection
order has not been complied with, the court may, on application by
the enforcement creditor, hear and decide any question about the
liability of the enforcement debtor’s employer to pay the earnings to
which the order applies.
Note Pt 6.2 (Applications in proceedings) applies to an application under this
rule.

(2) If the court is satisfied that the employer is liable to pay the earnings,
the court may make an order against the employer in favour of the
enforcement creditor for the lesser of—
(a) the amount of earnings that has not been paid to the enforcement
creditor as required by the earnings redirection order; and
(b) the unpaid amount of the order debt.

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.9 Enforcement of money orders—charging orders

Rule 2400

(3) The court may refuse to make an order under subrule (2) if it
considers the order should not be made because of the smallness of
either of the amounts mentioned in subrule (2) (a) or (b).
(4) As between the employer and the enforcement debtor, an amount paid
to the enforcement creditor by the employer under an order under this
rule is taken to have been paid by the employer to the enforcement
debtor.

Division 2.18.9 Enforcement of money orders—

charging orders
2400 Application—div 2.18.9
This division applies only in relation to the Supreme Court.

2401 Charging order—making

(1) On application by the enforcement creditor for an enforceable money
order of the court, the court may make an order (a charging order)
imposing a charge over all or part of the enforcement debtor’s
equitable interest in any property or legal or equitable interest in 1 or
more of the following (each of which is a security interest):
(a) annuities;
(b) debentures;
(c) stocks;
(d) bonds;
(e) shares;
(f) marketable securities;
(g) interests in a managed investment scheme;
(h) units of—
(i) shares; or

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—charging orders Division 2.18.9

Rule 2402

(ii) marketable securities;

(i) money on deposit in a financial institution that is held—
(i) in the enforcement debtor’s name in the enforcement
debtor’s own right; or
(ii) in someone else’s name on trust for the enforcement
debtor.
(2) A charging order operates, in relation to each security interest stated
in the order—
(a) to charge the security interest in favour of the enforcement
creditor to the extent necessary to satisfy the order debt; and
(b) to restrain the chargee from dealing with the security interest
otherwise than in accordance with the directions of the
enforcement creditor.

2402 Charging order—application

(1) An application for a charging order is made by filing in the court—
(a) a draft of the order sought; and
(b) an affidavit in support of the application.
Note See approved form 2.69 (Charging order) AF2006-314.

(2) The affidavit in support must state—

(a) the date the money order was made; and
(b) the date a sealed copy of the money order, and the notice in
accordance with rule 2015 (2), was served on the enforcement
debtor; and
(c) the amount of the order debt; and
(d) that the order debt has not been fully paid; and

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Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.9 Enforcement of money orders—charging orders

Rule 2403

(e) the date and amount of each payment (if any) made under the
order; and
(f) the costs incurred in previous enforcement proceedings in
relation to the order; and
(g) the interest owing on the day the affidavit is made (the affidavit
date); and
(h) any other details necessary to work out the amount payable
under the order on the affidavit date and how the amount is
worked out; and
(i) the daily amount of any interest that, subject to any future
payment under the order, will accrue after the affidavit date; and
(j) the security interest or interests to be charged by the order being
sought; and
(k) any other information necessary for the order being sought.
(3) The affidavit must be sworn not earlier than 2 days before the day the
application is filed in the court.
(4) Part 6.2 (Applications in proceedings) does not apply to the
application.
(5) The draft order and affidavit need not be served on anyone unless the
court otherwise orders on its own initiative.
(6) Unless the court otherwise orders on its own initiative, an application
for a charging order must be dealt with without a hearing and in the
absence of the parties.

2403 Charging order—effect

(1) A charging order takes effect when it is made.
(2) However, to have effect on the enforcement debtor, a charging order
must be served on the enforcement debtor.

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 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—charging orders Division 2.18.9

Rule 2404

(3) A charging order entitles the enforcement creditor to the same

remedies as the enforcement creditor would have had if the charge
imposed by the order had been made in the enforcement creditor’s
favour by the enforcement debtor.
(4) However, unless the court otherwise orders, the enforcement creditor
must not start a proceeding to obtain a remedy in relation to property
charged by the charging order until—
(a) a sealed copy of the charging order is served on the enforcement
debtor and the person who issued or administers the property;
and
(b) 1 month has passed since the day the order was served, or the
later of the days the order was served, as required by
paragraph (a).
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
otherwise ordering.

2404 Charging order—enforcement debtor dealing with

charged property
(1) After being served with a charging order in relation to property, the
enforcement debtor must not sell, transfer or otherwise deal with the
property otherwise than in accordance with the directions of the court
or the enforcement creditor.
(2) Any sale, transfer or other dealing by the enforcement debtor in
contravention of subrule (1) is of no effect against the enforcement
creditor.
(3) The court may set aside or restrain the sale, transfer or other dealing
unless to do so would prejudice the rights or interests of a genuine
purchaser or chargee without notice.

R61 Court Procedures Rules 2006 page 461

01/07/21 Effective: 01/07/21

Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au

Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.9 Enforcement of money orders—charging orders

Rule 2405

2405 Charging order—issuer etc dealing with charged property

(1) This rule applies to—
(a) a person who issued or administers charged property and has
been served with a charging order in relation to the property; and
(b) anyone else who has notice of a charging order in relation to
property.
(2) The person must not sell, transfer or otherwise deal with the property
otherwise than in accordance with the directions of the court or the
enforcement creditor.
(3) If the person deals with the property in contravention of subrule (2),
the person is liable to the enforcement creditor for whichever is the
smaller of—
(a) the value or amount of the charged property sold, transferred or
otherwise dealt with; and
(b) the order debt.

2406 Charging order—application to enforce charge

An application to enforce a charge imposed under a charging order
must be made in the proceeding in which the order is made.
Note Pt 6.2 (Applications in proceedings) applies to an application under this
rule.

2407 Charging order—procedure against partnership property

for partner’s separate order debt
(1) This rule applies if the enforcement debtor in relation to an
enforceable money order of the court is a partner in a partnership.
(2) On application by the enforcement creditor, the court may—
(a) make an order charging the interest of the partner in the
partnership property and profits of the partnership with payment
of the amount of the order debt (including interest); and

page 462 Court Procedures Rules 2006 R61

Effective: 01/07/21 01/07/21

Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au

 Civil proceedings generally Chapter 2
Enforcement Part 2.18
Enforcement of money orders—charging orders Division 2.18.9

Rule 2407

(b) by that order or another order—

(i) appoint a receiver of the partner’s share of the profits
(whether already declared or accruing) of the partnership
and of any other amount that may be coming to the partner
in relation to the partnership; and
(ii) make any order or give any direction that might have been
made or given if the charge had been made in favour of the
enforcement creditor by the partner or that the
circumstances require.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order
under this rule.

(3) The application must be served on the enforcement debtor and the
partners of the partnership.
(4) For this rule, service on each partner who lives in the ACT is
sufficient service on any partner who lives outside the ACT.
(5) If the interest of a partner in partnership property and profits of the
partnership is charged under subrule (2), the other partners in the
partnership may—
(a) at any time, redeem the interest charged; or
(b) if a sale of the interest is directed—buy the interest.
(6) This rule does not apply in relation to an incorporated limited
partnership.

R61 Court Procedures Rules 2006 page 463

01/07/21 Effective: 01/07/21

Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au

Chapter 2 Civil proceedings generally
Part 2.18 Enforcement
Division 2.18.10 Enforcement of money orders—amounts in court and stop orders

Rule 2420

Division 2.18.10 Enforcement of money orders—

amounts in court and stop orders
2420 Enforcement orders—amounts in court
(1) This rule applies if the enforcement debtor for a money order is
entitled, in the enforcement debtor’s own right, to an amount, security
or bond in court standing to the enforcement debtor’s credit in another
proceeding in the court.
(2) On application by the enforcement creditor, the court may order that
the amount, security or bond be applied towards satisfying the order
debt.
(3) The application must be made in the proceeding in which the money
order is being enforced.
(4) An amount, security or bond in court standing to the credit of an
enforcement debtor must not be paid out if an ap