Magistrates Court (Civil Division) Rules 1998
The Rules Committee of Magistrates Court (Civil Division) makes the following rules under the Magistrates Court (Civil Division) Act 1992 .
PART 1 - Preliminary
These rules may be cited as the Magistrates Court (Civil Division) Rules 1998 .
These rules take effect on 30 March 1998.
In these rules –Act means the Magistrates Court (Civil Division) Act 1992 ;action means an action commenced by a claim and conducted in accordance with these rules;address for service, in relation to a party or a practitioner acting on behalf of a party, is the address shown on any document filed by the party or practitioner in the course of an action;approved document exchange means a document exchange approved under rule 159(1) ;assessed, in relation to costs, means assessed under Division 2 of Part 9 ;assessment of costs means an assessment of costs under rule 148 ;assessment officer means the Court or a registrar who conducts an assessment of costs;attachment order means an order made under rule 125(1) ;bill of costs means a bill of costs referred to in rule 146 ;certified rate means the rate of interest applicable to the Litigants Fund for the period of 6 months immediately preceding 30 June or 31 December in any year;claim includes any claim commencing an action or any defence, counterclaim, set-off, reply, interpleader or third party claim;claimant includes a claimant in a counterclaim or third party claim;complex action means a complex action referred to in rule 139 ;conciliation conference means a conference held to consider the matters specified in rule 87 ;conduct an action includes compromise an action;consent judgment means a judgment entered in the terms of a consent filed jointly by the parties;Court seal means –(a) the seal of the Magistrates Court within the meaning of the Magistrates Court Act 1987 ; or(b) a seal in the custody of a district registrar under the Magistrates Court Act 1987 ;Court stamp means the stamp of the Court bearing an imprint identical to the Court seal;date of judgment means the date on which a judgment takes effect;default judgment means judgment entered against a party –(a) in default of defence; or(b) in default of compliance with an order of the Court;defence means a defence filed under rule 48 ;defendant includes a defendant to a counterclaim or third party claim;directions hearing means a hearing referred to in rule 80(1)(a) ;district registrar means a district registrar appointed under the Magistrates Court Act 1987 ;district registry means a district registry established under the Magistrates Court Act 1987 ;document includes –(a) a copy of a document; and(b) in addition to a document in writing –(i) an audio tape; or(ii) a computer program or software, and any data or information recorded in or processed by a computer; or(iii) a film; or(iv) a microfiche record;DX number means the identifying number of a box at an approved document exchange from where a person is entitled to collect documents;EDX means the electronic exchange of documents approved under rule 159(1) ;evidentiary material means any document, object or substance of evidentiary value –(a) that is produced in proceedings before the Court; or(b) that, in the opinion of the Court, ought to be produced for the purpose of enabling the Court to determine whether or not it has evidentiary value;execution means the enforcement of a judgment;fax means a facsimile of a document transmitted electronically through a telecommunications system;filed means filed in a registry;film includes a photograph, videotape or cinematographic film;final judgment means –(a) a consent judgment; or(b) any judgment given at the conclusion of a trial; or(c) any judgment made in the terms of the acceptance of –(i) an offer of compromise; or(ii) a payment into Court; or(d) a summary judgment;function includes duty;infant means a person who has not attained the age of 18 years;interlocutory judgment means any judgment that is not a final judgment;judgment means –(a) a judgment, declaration, decree, decision or order of the Court finally disposing of an action; or(b) an interlocutory judgment, declaration, decree, decision or order of the Court;judgment debt includes costs and interest;listing conference means a conference held under rule 80(1)(d) ;Litigants Fund means the Magistrates Court (Civil Division) Litigants Fund established under rule 159 ;litigation guardian means a litigation guardian appointed or self-appointed under rule 21 ;magistrate means a magistrate within the meaning of the Magistrates Court Act 1987 ;mediation conference means a conference referred to in rule 80(1)(c) ;Motor Accidents Insurance Board means the Motor Accidents Insurance Board established under section 4 of the Motor Accidents (Liabilities and Compensation) Act 1973 ;operative date means the earlier of –(a) 21 days after the issue of a notice of trial; or(b) the date on which a conciliation conference is concluded; or(c) if the Court adjourns a conciliation conference, the date to which the conference has been adjourned;order includes –(a) a direction; and(b) the granting of leave;party means a party to any action or proceedings;payment into Court means a payment to a registrar under rule 92(1) ;person under disability means –(a) an infant; or(b) any other party who by reason of physical, mental or intellectual impairment is unable to give sufficient instructions to conduct an action;pleadings includes a statement in writing of the claim of a party and any particulars of that statement;practice direction means a practice direction under rule 9 ;practitioner, subject to Part 6 and Part 7 of the Legal Profession Act 1993 , includes an apprentice and an articled clerk;practitioner and client costs means solicitor and client costs;prescribed rate means the prescribed rate for the purpose of Division 2 of Part 5 of the Act;proceeding means a step or process in the course of –(a) an action; or(b) the enforcement of a judgment;property means real or personal property;representation order means an order under rule 16 ;routine action means any action other than a complex action;sealed means –(a) sealed with the Court seal; or(b) stamped with the Court stamp;service means service under rule 40 ;substituted service means service in accordance with an order of the Court under rule 42 ;summary judgment means a summary judgment under rule 115 ;summons means a summons to a witness under rule 102 ;third party includes any subsequent party;third party claim means a claim filed against a third party under rule 52 ;time for service means the period of time within which a document is to be served;time limit means the period of time within which a party is to take a proceeding or do any other thing.
PART 2 - Practice and procedure
4. Conduct of Court proceedings
Proceedings in the Court are to be conducted –(a) with the least possible delay; and(b) in a manner that ensures, as far as is practicable, that the parties are on an equal footing; and(c) in a manner that saves costs; and(d) in a manner that is proportionate to –(i) the amount of any claim; and(ii) the importance or complexity of the action; and(iii) the financial positions of the parties.
5. Order to give effect to rules
If the Court determines that the justice of the case so requires, the Court may make an order or do any other thing necessary or expedient to give proper effect to these rules or the Act.
6. Delay in conduct of proceedings
(1) If the Court considers that proceedings have been unduly delayed, the Court, on its own initiative and by giving notice to the parties, may make any of the following orders:(a) an order that the action proceed to trial as soon as practicable;(b) an order fixing time limits in respect of any subsequent proceedings;(c) an order fixing the date for the trial of the action;(d) an order that the action be dismissed.(2) Any party to an action may apply for an order under subrule (1) .(3) In determining whether or not proceedings have been unduly delayed, the Court is to have regard to any time limit fixed by –(a) these rules; or(b) any order made under these rules; or(c) any practice direction.(4) The dismissal of an action under subrule (1)(d) has effect as an interlocutory judgment.
The Court may give any direction in relation to practice and procedure it considers necessary to ensure the saving of costs in an action.
(1) The Court may order a party to pay costs to another party if that other party suffers any prejudice, damage or loss as a result of –(a) a wrongful act by the first party; or(b) any default, neglect or delay by the first party; or(c) any non-compliance with the Act or these rules by the first party.(2) The order for costs may be made in respect of any injury, embarrassment, inconvenience or expense suffered or incurred.
(1) The Chief Magistrate may issue, vary or revoke a practice direction in relation to the practice and procedure of the Court.(2) The practice and procedure of the Court is to conform with current practice directions unless these rules or any Act provides otherwise.(3) Each district registrar is to keep a register of practice directions.
10. Directions as to practice and procedure
If the manner or form of commencing an action, taking a proceeding or doing any other thing is not prescribed by these rules or any Act, the Court –(a) on the application of a party, may give directions as to the procedural steps to be taken; or(b) with necessary modification, may adopt the practice and procedure of the Supreme Court.
PART 3 - Actions
Division 1 - Parties to an action
If the identity of any party to an existing action is in issue, the Court may make any order it considers appropriate to ascertain the identity of the party.
(1) The Court may allow a party to amend the description of any party.(2) If, in the opinion of the Court, an amendment under subrule (1) amounts to a change of party, the Court may –(a) require the new party to be served; and(b) set aside any order made against the former party.
13. Parties joined in an action
(1) The Court is to ensure that all necessary parties to an action are joined in the action.(2) An action is not defeated if parties to the action –(a) are incorrectly joined; or(b) fail to be joined.
(1) Any person who is or was a partner in a firm may sue and be sued in the name of the firm in respect of any cause of action that accrues or accrued at the time the person is or was a partner.(2) The Court may order a person referred to in subrule (1) to provide the Court with a statement on oath of the particulars of all partners of the firm at any relevant time.(3) A judgment against a firm may be enforced against all persons who were partners of the firm at the time the cause of action accrued.
(1) A trustee, executor or administrator may sue and be sued on behalf of, or as a representative of, a trust property or estate.(2) The Court may order that any person beneficially interested in a trust property or estate be joined as a party to an action relating to that property or estate.
(1) If 3 or more persons have a cause of action or defence arising out of similar circumstances, the Court, by consent of the persons, may make an order appointing one or more of those persons to sue or defend on behalf of, or for the benefit of, any other person who consents to the order.(2) Unless the Court orders otherwise, a representation order confers on a person the authority and power to conduct, settle or otherwise dispose of the whole or any part of an action.(3) A representation order may be made irrespective of whether the remedies or relief sought by the persons are identical.(4) Any person represented under this rule may be entitled to,or liable for, costs in any proportion or amount the Court determines.
17. Consent to representation order
A consent to a representation order –(a) is to be in writing, signed by all persons consenting to the order and filed; and(b) may be withdrawn with the leave of the Court not less than 21 days before the date fixed for the trial of the action.
18. Directions hearing in relation to representation order
(1) If a representation order is made in relation to an action, the Court is to hold a directions hearing.(2) A registrar is to give all parties not less than 21 days notice in writing of the directions hearing.(3) Notice of the directions hearing is to –(a) be given within 7 days after the date of a representation order; and(b) specify the date, time and place of the directions hearing.(4) At the directions hearing, the Court may –(a) in order to ascertain if any other person seeks to consent to the representation order, direct that the existence of the action to which the representation order relates be published; and(b) give a direction as to the manner and form of publication of the existence of the action; and(c) give a direction as to the manner of legal representation of parties at the trial of the action; and(d) give any other direction.
19. Practitioner acting on behalf of a party
(1) A practitioner is taken to be acting on behalf of a party if the practitioner files and serves on all other parties a notice in writing of that fact.(2) A practitioner acting on behalf of a party is to continue to act on behalf of that party until –(a) the Court orders that the practitioner may cease to act; or(b) the practitioner files a notice in writing that he or she has ceased to act on behalf of that party.(3) A practitioner who files a notice under subrule (2)(b) is to notify the Court of –(a) the last-known address of that party; and(b) the last dealings that the practitioner had with that party.
Division 2 - Persons under disability
20. Litigation guardian for person under disability
(1) A litigation guardian is to conduct an action on behalf of a person under disability.(2) A litigation guardian is required or authorised to do anything that a person under disability is required or authorised to do in relation to the conduct of an action.(3) A litigation guardian is a party to an action.(4) Unless the Court orders otherwise, a litigation guardian appointed on behalf of a claimant is liable for the costs of any successful party.(5) Unless the Court orders otherwise, a litigation guardian appointed on behalf of a defendant is not liable for the costs of any other party.(6) Failure to appoint a litigation guardian does not invalidate an action.
21. Appointment of litigation guardian
(1) A litigation guardian may be –(a) appointed by the Court; or(b) self-appointed.(2) The name of a person is not to be used in any proceeding as litigation guardian unless –(a) the person has signed a written authority for that purpose; and(b) that authority has been filed.(3) The Court may remove a litigation guardian.
22. Particulars of litigation guardian
A claim filed by a litigation guardian is to include the following particulars:(a) the identity and address of the litigation guardian;(b) the identity and address of the person under disability;(c) the nature of the disability;(d) if the person under disability is an infant, the date of birth of that infant.
23. Application for order approving settlement of action by person under disability
(1) A litigation guardian or other party to an action may apply to the Court at any stage of the proceedings for an order approving a compromise or settlement of the action.(2) Unless the Court otherwise orders, an application is to be supported by –(a) an affidavit by the litigation guardian; and(b) an affidavit by the applicant's practitioner as to the opinion of that practitioner –(i) indicating any considerations relevant to the settlement or compromise; and(ii) exhibiting copies of relevant material appearing in any medical report or hospital record relevant to the claim of the person under disability.(3) Any affidavit under subrule (2) is to be filed in a sealed envelope endorsed with –(a) the title of the action; and(b) the name of the person who swore the affidavit; and(c) the date on which the affidavit was sworn; and(d) a statement that the envelope contains the affidavit.(4) A party applying for an order referred to in subrule (1) is not required to serve any other party with a copy of any affidavit filed in support of the application.(5) A party who is not served with an affidavit is not entitled to access to that affidavit unless –(a) the Court otherwise orders; or(b) the party filing the affidavit consents.
24. Settlement of action by person under disability
(1) The compromise or settlement of an action does not bind a person under disability unless it is approved by order of the Court.(2) Before making an order referred to in subrule (1) , the Court is to consider any legal opinion filed on behalf of the person under disability relating to the adequacy or desirability of the proposed compromise or settlement.(3) If the Court makes an order referred to in subrule (1) , it may also make any or all of the following ancillary orders:(a) an order as to the investment of any settlement money on behalf of the person under disability;(b) an order as to payment of the capital and income to its full extent for the maintenance, education, benefit or advancement for and on behalf of the person under disability;(c) an order as to the payment of the costs of the litigation guardian or any other party.
Division 3 - Commencement of action
25. Action to be commenced by claim
(1) An action is to be commenced by a claim in a form specified in a practice direction.(2) A claim is to be filed in a registry.(3) A claim for a debt or liquidated sum is to contain a statement specifying –(a) the amount claimed in the action; and(b) the amount claimed for costs.(4) The amount claimed for costs under subrule (3) is to be in accordance with Part 3 of Schedule 1 .
(1) A claim commencing an action is to be served within one year after the claim is filed.(2) On the application of the party who filed the claim, the Court, by order, may extend the time for service of the claim if the application for extension of time is filed within one year after the claim is filed.
(1) A person is not to divide any cause of action for the purpose of commencing 2 or more actions.(2) This rule does not apply to a cause of action in respect of which a claim is made for both damages for personal injuries and property damage.
Division 4 - Personal injuries actions
28. Claimant's duties before action is commenced
(1) Not less than 90 days before filing a claim commencing an action for damages for personal injuries, the claimant is to serve on the defendant's insurer or, if the identity of the insurer is not known, the defendant, copies of the following documents:(a) a notice of the intended action, specifying any intended claim for past or future economic loss;(b) copies of supporting documents, including medical records, that set out the nature and extent of the claimant's injuries and residual disabilities as known to the claimant at that time.(2) If the claimant fails to comply with subrule (1) , the Court may order that the claimant is not to recover costs or is to recover part costs only.
29. Requirements on commencing action
(1) The claimant in an action for damages for personal injury caused by a motor accident involving a motor vehicle is to serve on the Motor Accidents Insurance Board –(a) within 7 days after the claim commencing the action is filed, a copy of the claim; and(b) at the time of serving the claim, a notice of particulars of personal injury in a form specified in a practice direction.(2) The claimant, at the time of serving the claim, is to –(a) file and serve on all other parties the notice referred to in subrule (1)(b) ; and(b) make discovery to all other parties.(3) The Court may receive a notice referred to in subrule (1)(b) as an exhibit.
Division 5 - Course of action
30. Registry in which action to proceed
(1) Subject to subrule (2) , the parties are to conduct the whole of an action, up to and including final judgment, in the registry in which the action was commenced.(2) On the application of a party or by consent of the parties, the Court in the district of the registry in which an action was commenced may order that the action proceed in another registry.
(1) A claimant may abandon any part of a claim at any stage of the proceedings.(2) A claimant is not to make a separate claim in respect of any part of a claim that has been abandoned against that party.
(1) A party may discontinue an action commenced by that party at any stage of the proceedings by notice in writing filed and served on any other party.(2) Unless the parties agree otherwise, costs of the action are to be paid by the party discontinuing the action.
(1) The Court, on giving reasonable notice to the claimant, is to dismiss an action if –(a) the claim commencing the action has not been served within –(i) one year after the claim was filed; or(ii) the time specified in an order under rule 26(2) ; or(b) within 21 days after the time for service of the claim commencing the action or the time specified in an order under rule 26(2) –(i) a defence has not been filed; and(ii) judgment has not been entered.(2) The dismissal of an action under this rule has effect as an interlocutory judgment.
The Court may –(a) join or sever actions; or(b) list separate actions for hearing at the same time or consecutively.
35. Actions arising out of similar circumstances
(1) If 2 or more actions arise out of similar circumstances, the parties may consent that only one of those actions is to be heard and determined by the Court.(2) A consent –(a) is to be in writing, signed by all parties consenting to the order and filed; and(b) may be withdrawn with the leave of the Court not less than 21 days before the date fixed for the trial of the action.(3) If only one action is heard, the final judgment of the Court in relation to that action is binding on all the parties who consented to the hearing and determination of that one action.
In the course of any action or proceeding, the Court may do any or all of the following:(a) amend any defect or error;(b) remedy or rectify anyomission;(c) take anything to be done at or from a date fixed by the Court.
37. Power to extend or shorten time limits
In the course of any action or proceeding, the Court may extend or shorten any time limit fixed by –(a) these rules; or(b) an order made under these rules; or(c) a practice direction.
The Court, on the application of a party, may –(a) enter judgment in an action that the Court considers to be scandalous, frivolous, oppressive, vexatious or otherwise an abuse of process of the Court; or(b) make an order staying until further order an action referred to in paragraph (a) ; or(c) make an order striking out a pleading that the Court considers to be scandalous, frivolous, oppressive, vexatious or otherwise an abuse of process of the Court.
Division 6 - Filing and service of process
39. Documents to be filed and served
The following documents are to be filed and sealed and, unless they are to be dealt with in the absence of a party, served by the party filing the document on all other parties to the action or proceeding:(a) a claim;(b) an injunction;(c) an application;(d) an affidavit or other document in support of an application.
(1) A claim commencing an action may only be served on a party as follows:(a) by personal service on the party or the practitioner acting on behalf of the party;(b) by registered post addressed to the usual place of residence or business of the party or the practitioner acting on behalf of the party;(c) by leaving it at the party's usual place of residence or business with a person apparently of or over 16 years of age;(d) if the party is an incorporated body of persons –(i) by leaving it at, or sending it by ordinary prepaid post addressed to, the registered office of the body; or(ii) in any other manner permitted by The Corporations Law of the Commonwealth;(e) if the party is an unincorporated body of persons, by registered post addressed to the principal place of business of the body.(2) A summons may only be served by personal service.(3) In addition to any manner specified in subrule (1) , any other document may be served on a party as follows:(a) by ordinary prepaid post to the address for service of the party or the practitioner acting on behalf of the party;(b) by depositing it at an approved document exchange addressed to the DX number of the party or the practitioner acting on behalf of the party;(c) by EDX addressed to the name and user identification recognised by the computer of the addressee;(d) by fax to the party or the practitioner acting on behalf of the party in normal business hours on a business day;(e) by affixing it on a door of a place of residence or business or otherwise conspicuously on a property –(i) if the party appears to be keeping the place of residence or business closed in order to avoid or prevent service; or(ii) if it is a case of vacant possession in an action for the recovery of real property;(f) by leaving it near the party if there are threats or violence by or on behalf of that party.(4) A document is not to be served on Good Friday or Christmas Day.
(1) A party is taken to have been served with a document –(a) at the time he or she is personally served; or(b) if service is by fax or EDX in normal business hours on a business day, at the time the document is transmitted; or(c) in any other case, 2 business days after the document has been served in accordance with rule 40 .(2) A statement on a document transmitted by fax or EDX as to the date, time and place of transmission or receipt of the document is evidence of the matters stated.
(1) The Court, on the application of a party and in substitution for service under rule 40 , may order service by –(a) advertisement; or(b) any other means the Court considers appropriate.(2) The Court may only make an order for substituted service if the applicant establishes proper cause.
Any person who serves a document is to prove the service of that document by affidavit.
Division 7 - Pleadings
(1) Subject to these rules and any order of the Court, the practice, form and content of pleadings are to comply with the Rules of the Supreme Court 1965 .(2) Any pleading beyond a reply is not allowed except with the leave of the Court.(3) A natural person who denies personal liability on the ground that the liability was incurred or assumed by or on behalf of another person or a body of persons, corporate or unincorporate, is to plead all material facts or circumstances –(a) from which the liability of the other person or body of persons may be inferred; and(b) identifying when, where and how the other person or body of persons incurred or assumed the liability.(4) A party who alleges that the parties are bound by a quotation is to plead all material facts or circumstances identifying by whom, when, where and how the quotation was made.
A party, with the leave of the Court, at any stage of the proceedings before final judgment may amend –(a) any pleadings; or(b) the remedy or relief claimed.
46. Request for better particulars
(1) A party, by notice in writing to any other party, may request better particulars of the other party's claim.(2) If a party does not comply with a request for better particulars within 7 days after the date of service of the notice, the Court may order the party toprovide all or any of the requested particulars.
(1) A party, by notice in writing to any other party, may request the other party to admit –(a) any facts specified in the notice; or(b) the authenticity or admissibility of any document specified in the notice.(2) A party served with the notice may object to any fact or document specified in the notice.(3) An objection to the notice is to –(a) be in writing; and(b) be filed and served on the party requesting the admission.(4) The contents of the notice are taken to be admitted if –(a) service of the notice is proved; and(b) an objection has not been served within 21 days after the date of service of the notice.(5) The Court is to order a party whose objection it considers unreasonable to bear relevant costs.(6) At the trial of an action, the Court may admit evidence contrary to any admission made under this rule.
(1) A person intending to defend an action is to –(a) file a defence in a form specified in a practice direction within 21 days after service of the claim commencing the action; and(b) serve the defence on all other parties to the action.(2) A defence may be filed at any time before default judgment is entered.
A defendant may object to the jurisdiction of the Court only by way of application filed at the same time the defence is filed.
A defendant intending to file a counterclaim or set-off may do so only –(a) in a form specified in a practice direction; and(b) at the same time the defence is filed.
51. Defence to counterclaim or set-off
(1) A claimant is to file a defence to a counterclaim or set-off within 14 days after service of the counterclaim or set-off.(2) A defendant may require a claimant to provide particulars of a defence to a counterclaim or set-off.
(1) A defendant may claim indemnity or contribution from another person by filing a claim against a third party in a form specified in a practice direction.(2) A third party claim is to be –(a) filed at the same time the defence is filed; and(b) served by the defendant, together with a copy of the claim that commenced the action, on all other parties.(3) A third party may plead to the claim commencing the action.(4) A defendant or third party, with the leave of the Court, may join any action that is related to the claimant's action.(5) Any party may apply to the Court for directions in respect of a third party claim.(6) A third party to an action –(a) is a party to the action; and(b) has the same rights, duties and obligations it would have had if an action were brought against it by the defendant.
53. Contribution between defendants
(1) If there is more than one defendant to an action, each defendant is taken to claim contribution from each other defendant.(2) A defendant may require any other defendant to provide particulars of a claim for contribution.
A person may apply to the Court for directions as to parties to be served and procedure to be followed if the person –(a) is being sued, is about to be sued or may be sued by 2 or more persons making competing claims in respect of –(i) personal property in the person's possession or under the person's control; or(ii) proceeds from a disposition of that property; and(b) is uncertain as to whom the property or proceeds belong; and(c) expressly disclaims any personal interest in, or claim to, any part of the property or proceeds in dispute.
Division 8 - Affidavits
(1) An affidavit is to –(a) specify the title of the action in which it is sworn; and(b) be drawn up in the first person; and(c) state –(i) the name, address and occupation of the person making the affidavit; or(ii) if the person making the affidavit does not have an address or occupation, a description of the person; and(d) be divided into consecutively numbered paragraphs that, as far as practicable, relate to separate portions of the subject matter of the affidavit; and(e) specify any sum of money or number in figures only; and(f) contain a statement signed by the person before whom it was sworn specifying –(i) the full name of the person making the affidavit; and(ii) the day on which and the place at which the affidavit was sworn; and(g) be signed on each page by –(i) the person making the affidavit; and(ii) the person before whom it was sworn.(2) Any annexure or exhibit filed with an affidavit is to be –(a) identified by the title of the action; and(b) signed by the person before whom the affidavit was sworn.(3) Unless the Court orders otherwise, an affidavit may be received in evidence despite any irregularity in form.
(1) An affidavit is to be confined to facts to which the person making the affidavit is able to depose from his or her own knowledge.(2) An affidavit filed in relation to an interlocutory application may contain statements based on information received by the person making the affidavit, and believed by that person to be true, if the affidavit also contains –(a) the sources of the information received; and(b) the grounds for believing thatthe information is true.
57. Affidavits made by 2 or more persons
(1) If an affidavit is made by 2 or more persons, the statement referred to in rule 55(1)(f) is to contain the full names of all persons making the affidavit.(2) If the affidavit is sworn by all the persons making the affidavit at the same time before the same person, it is sufficient to state that it was sworn by "both of the above-named persons" or "all of the above-named persons".
58. Affidavits by persons not natural persons
If an affidavit is filed on behalf of a party that is a body of persons, corporate or unincorporate, the affidavit is to be sworn by a person authorised to make the affidavit on behalf of the body of persons.
59. Affidavits by illiterate or blind persons
(1) If it appears to the person before whom an affidavit is sworn that the person making the affidavit is illiterate or blind, the person before whom the affidavit is sworn is to certify in or below the statement referred to in rule 55(1)(f) –(a) that the affidavit was read to the person making the affidavit in the presence of the person before whom the affidavit was sworn; and(b) that the person making the affidavit seemed to understand the affidavit fully; and(c) that the person making the affidavit made his or her signature or mark in the presence of the person before whom the affidavit was sworn.(2) An affidavit of a person who is illiterate or blind is not to be used in evidence in the absence of the certificate specified in subrule (1) unless the Court is otherwise satisfied of the matters referred to in that subrule.
Any addition, alteration or erasure in an affidavit is to be initialled by the person making the affidavit and the person before whom the affidavit was sworn.
(1) The Court, on the application of a party, may order that any of the following matters contained in an affidavit be struck out or removed from the file:(a) any material that is scandalous, unnecessary, irrelevant, prolix or argumentative;(b) any opinion other than the opinion of a person properly qualified to give it.(2) In an order made under subrule (1), the Court may order that the costs of the application be paid as between practitioner and client.
62. Affidavits sworn within Australia
(1) An affidavit sworn in this State is to be sworn before –(a) a magistrate; or(b) a registrar; or(c) a commissioner to administer oaths; or(d) an officer empowered by statute to administer oaths; or(e) a justice of the peace.(2) An affidavit sworn in any place out of the State but within Australia is to be sworn before any person having authority to administer an oath in that place.(3) The Court is to take judicial notice of the signature on the affidavit of the person referred to in subrule (1) .
63. Affidavit sworn before practitioner or agent
An affidavit that is to be used on behalf of any party is not to be sworn before a person who is –(a) a practitioner, or legal practitioner of any description in the place at which the affidavit was sworn, and who is acting on behalf of that party; or(b) an agent of the practitioner or legal practitioner; or(c) a member of the firm of the practitioner, legal practitioner or agent; or(d) a practitioner, legal practitioner or clerk employed by the practitioner, legal practitioner, agent or firm; or(e) any party to the same action or proceedings.
Division 9 - Discovery, inspection and admissions
(1) A party, by notice in writing to any other party, may request –(a) discovery of any document or property relating to the matters in issue in an action; and(b) disclosure of the location of any discovered document or property.(2) If a party does not comply with a request for discovery or disclosure within 14 days after the date of service of the notice, the Court may order the party to make discovery and disclosure by affidavit.(3) If further documents or property that are discoverable come into the possession, custody or control of a party that has already made discovery under these rules, that party is to make further discovery as soon as practicable.
(1) Unless the parties agree otherwise, any document or property discovered by a party and in the possession, custody or power of that party is to be produced at the trial of the action.(2) The Court may order a party who fails to comply with subrule (1) to bear any relevant costs incurred by the failure to comply.
66. Inspection of discovered documents
(1) A party, by notice in writing to any other party, may request inspection of any discovered document or property in the possession, custody or control of that other party.(2) If a party does not comply with a request for inspection within 14 days after the date of service of the notice, the Court may order inspection of any document or property at a date, time and place fixed by the Court.
67. Limitation of certain documents in evidence
(1) Any plan, model, film, audio tape, disc, sound-track or other device in which sounds, data or visual images are embodied is not receivable in evidence at the trial of an action unless –(a) the parties agree to its admission into evidence without further proof after having been given an opportunity to inspect it –(i) before the trial, at a time fixed by the Court; or(ii) if no time is fixed by the Court, within a reasonable period before the trial begins; or(b) the Court, at or before the trial, otherwise orders.(2) A party may make an application for an order in the absence of any other party if the application is made before the trial.(3) The Court is to determine any application for an order, whether made at or before the trial, on any materials and in any manner the Court thinks fit.(4) The Court may give directions on any application for an order, including directions that notice of the application be given to another party.(5) In this rule,inspect includes the following, with or without the aid of equipment:(a) view data or visual images embodied in any device;(b) listen to sounds embodied in any device;(c) reproduce sounds, data or visual images embodied in any device.
(1) A party is not to interrogate any other party except with the leave of the Court.(2) The Court may only grant leave to interrogate if, in the opinion of the Court, an interrogatory is likely to –(a) narrow the issues in dispute; or(b) shorten the trial of the action.(3) A party is to answer an interrogatory by affidavit.
69. Orders against non-parties
(1) The Court may make any or all of the following orders against a person who is not a party to an action:(a) an order for inspection of a document over which a practitioner claims a lien;(b) an order authorising the observation or recording of, or the taking of a sample of or from, any property;(c) an order that a person make discovery of any document or property that –(i) relates to a matter in issue in the action; and(ii) is or has been in the possession, custody or power of that person;(d) an order that a person answer on oath any interrogatory relating to a matter in issue in the action.(2) An order under subrule (1) may be general or limited to a certain class of document or property.
Division 10 - Applications
(1) The Court, on the application of a party, may make an order or do any other thing it is empowered to make or do under the Act or these rules.(2) The Court may require a party to file a draft of any order sought.
(1) Unless the Court orders otherwise or these rules provide otherwise, an application for an order is to be –(a) in a form specified in a practice direction; and(b) accompanied by an affidavit in support of the application; and(c) filed and served, together with any affidavit referred to in paragraph (b) , on all other parties.(2) On the filing of an application, a registrar is to fix a date, time and place for the hearing of the application.
(1) An application that is required to be served is to be served, together with any supporting affidavits, not less than 3 days before the date fixed for the hearing of the application.(2) If the date fixed for the hearing of an application is less than 3 days after the date the claim commencing the action is filed, the time for service is reduced accordingly.
73. Other means of making application
The Court may direct, if proper cause is established, that a party may make an application as follows:(a) orally;(b) in the absence of any other party;(c) with or without notice to any other party.
(1) Unless the Court orders otherwise, an application is to be heard in open court.(2) With the leave of the Court, a person may appear by telephone or video link at the hearing of an application.(3) The hearing of an application may be adjourned –(a) on no more than 2 occasions; and(b) to a fixed date only.(4) At the hearing of an application, a fact may be proved by affidavit.
75. Non-attendance on applications
If a party fails to attend within 15 minutes after the time fixed for the hearing of an application, the Court may enter judgment or make an order against, and in the absence of, that party without hearing any evidence.
Division 11 - Orders
(1) The Court may make an order at any stage of the proceedings.(2) The Court may make an order subject to –(a) any condition as to costs; and(b) any other condition specified in the order.(3) Anything required to be done under an order is to be done within 7 days after the date of the order unless –(a) these rules provide otherwise; or(b) the Court orders otherwise.(4) The Court may make any further order incidental or ancillary to an initial order.
(1) A formal order of the Court is to be in a form specified in a practice direction.(2) An order endorsed on an application has effect as a formal order.(3) The terms of an order made on the application of a party need not be drawn up unless the Court orders otherwise.
(1) If a party or practitioner acting on behalf of a party files a consent in writing to the making of an order, the Court or a registrar may make an order –(a) in the terms of the consent; and(b) in the absence of the parties.(2) Subrule (1) does not apply to an order –(a) to adjourn the trial of an action; or(b) to extend or otherwise affect or modify any time limit fixed by –(i) these rules; or(ii) an order made under these rules; or(iii) a practice direction.(3) An order under subrule (1) is to be in a form specified in a practice direction.
79. Judgment for non-compliance with order
The Court may enter judgment against a party who fails or refuses to comply with an order of the Court on proof that –(a) the terms of the order have been given in writing to the party; and(b) the order has not been complied with.
PART 4 - Conferences and hearings
80. Conference or hearing held in course of action
(1) In the course of an action, any or all of the following may be held:(a) a hearing at which the parties are issued with directions relating to the course of the action;(b) a conference at which the matters specified in rule 87 are considered;(c) a confidential conference for the purpose of mediating the dispute between the parties;(d) a conference at which an action is listed for trial.(2) The Court may conduct a directions hearing, conciliation conference, mediation conference or listing conference in any manner the Court considers appropriate.
(1) The Court may direct a registrar to serve a notice in a form specified in a practice direction on any party requiring that party to attend any or all of the following:(a) a directions hearing;(b) a conciliation conference;(c) a listing conference.(2) A notice under subrule (1) may require a party to attend a directions hearing, conciliation conference or listing conference in person.(3) If the party is a body of persons, corporate or unincorporate, a natural person authorised to represent the party is to attend the conference or hearing.(4) If an insurer is subrogated to the rights of a party, a person authorised to represent the insurer may attend the conference or hearing on behalf of that party.
82. Inability to attend in person
A registrar, at the request of a party who is unable to attend a directions hearing, conciliation conference or listing conference in person, may arrange a telephone link to the conference or hearing if –(a) the registrar considers personal attendance at the conference or hearing is likely to cause undue expense or inconvenience to the person; or(b) the person is unable to attend due to ill health; or(c) it is otherwise in the interests of justice to do so.
83. Judgment may be entered if party fails to attend
If a party fails to attend within 15 minutes after the time fixed for a directions hearing, conciliation conference or listing conference, the Court conducting the conference or hearing may enter judgment or make an order against, and in the absence of, that party, without hearing any evidence.
84. Applications made at conference or hearing
An application made in the course of a directions hearing, conciliation conference, mediation conference or listing conference may be made –(a) orally; or(b) in a form specified in a practice direction.
85. Orders at conference or hearing
At a directions hearing, conciliation conference, mediation conference or listing conference, the Court may make any order or do anything that it is empowered to make or do under these rules.
86. Confidentiality of offers and admissions
Any offer or admission made at a directions hearing, conciliation conference, mediation conference or listing conference is not to be communicated to the magistrate hearing the trial of the action until after final judgment.
(1) The following matters are to be considered at a conciliation conference:(a) settlement or compromise of the action;(b) simplification or limitation of the issues for trial;(c) avoidance of unnecessary evidence at trial;(d) limitation of the number of witnesses to be called;(e) any other matter that may facilitate the orderly and expeditious disposition of the action.(2) The Court conducting a conciliation conference may –(a) require the disclosure and consideration of any offer of settlement; and(b) give directions as to the subsequent course of the action.
88. Adjournment of conciliation conference
A conciliation conference may be adjourned –(a) on no more than 2 occasions; and(b) on any one occasion, for a period not exceeding 3 months; and(c) to a fixed date only.
PART 5 - Offers of compromise and payments into Court
(1) A party may file and serve on any other party an offer of compromise before final judgment.(2) The offer may be made subject to any specified condition.(3) The offer may relate to liability, quantum, matters in issue in the action or any order, remedy or relief sought.(4) An offer of compromise is to specify –(a) whether the offer includes costs and interest; or(b) the amount offered for costs and interest up to the date of the offer.(5) If the offer does not comply with subrule (4) –(a) the offer is taken to refer only to the sum of money claimed in the action; and(b) the party accepting the offer may apply for costs and interest in addition to the sum of money comprised in the offer.
90. Withdrawal or variation of offer of compromise
A party may file and serve a notice of withdrawal or variation of any offer of compromise that has not been accepted.
91. Acceptance of offer of compromise
(1) A party may file and serve a judgment in the terms of an accepted offer of compromise.(2) A party may request a registrar to enter judgment in the terms of the accepted offer and the registrar is to enter it accordingly.
(1) A party, with or without an admission of liability, may pay to a registrar before final judgment –(a) a sum of money that the party considers sufficient to satisfy the claim against it; and(b) the costs of the other party up to the time of the payment.(2) A payment under subrule (1) is a payment into Court.
93. Notice of payment into Court
(1) On making a payment into Court under rule 92(1) , the party paying is to file and serve on the other party notice in writing of the payment.(2) The notice of payment is to specify –(a) the sum offered referable to the sum of money claimed in the action; and(b) the sum offered for costs.(3) If the notice does not comply with subrule (2) –(a) the payment is taken to refer only to the sum of money claimed in the action; and(b) the party accepting the payment is entitled to costs of the claim until the date of payment into Court.
94. Notice of acceptance of payment into Court
(1) A party may file and serve a notice in writing accepting a payment into Court.(2) A notice of acceptance operates as full satisfaction of a party's claim.(3) Judgment in terms of the acceptance of a payment into Court is a final judgment.
(1) If a payment into Court is not accepted, the money paid into Court is to be forwarded to the party entitled to it in accordance with the outcome of the action.(2) On the filing of a notice of acceptance, a registrar is to forward the money paid into Court to the party entitled to it in accordance with the notice of acceptance.
96. Confidentiality of offers and payments into Court
(1) A payment into Court is not to be communicated before final judgment to the magistrate hearing the trial of the action.(2) The existence of an offer of compromise is not to be communicated before final judgment to the magistrate hearing the trial of the action.
PART 6 - Trial
(1) The Court, at any conference or hearing held under Part 4 , may fix the date, time and place for the trial of the action.(2) A registrar, at the direction of the Court, is to issue a notice of trial in a form specified in a practice direction to any party who is not present at the conference or hearing.(3) Unless special reasons exist, a trial fixed to commence on a certain date is not to be adjourned beyond that date.(4) A trial may only be adjourned to a fixed date.(5) If the Court fails to fix an adjourned date, a registrar is to do so.
98. Claims to be heard together
Unless the Court orders otherwise, a claim, counterclaim, set-off, third party claim and an interpleader are to be heard together.
(1) At or before trial, the Court may give any directions in respect of the examination of a witness it considers appropriate.(2) The Court may disallow a question that it considers irrelevant, prolix or repetitious.(3) The Court may direct the order, manner, time and form in which evidence and submissions on evidence are to be given.(4) At trial, the Court, on its own initiative or on the application of a party, may make any order or do anything that it is empowered to make or do under these rules.(5) An application under subrule (4) may be made –(a) orally; or(b) in a form specified in a practice direction.
(1) A party may apply to the Court for the expedited hearing of an action if the outcome of that action depends only on –(a) the determination of a question of law; or(b) the proper construction of any written contract, instrument or other document the existence or validity of which is not disputed.(2) The party is to file –(a) a statement of agreed facts; and(b) any question of law or construction involved; and(c) a copy of any relevant contract, instrument or other document.(3) The Court may –(a) hear relevant submissions in open court; and(b) enter final judgment.(4) If the Court considers the procedure under this rule ought to have been adopted, the Court may only allow costs if the procedure has been adopted.
101. Witness not required to attend trial
(1) The attendance of a witness at a trial is not required if –(a) the party calling the witness serves an affidavit of the witness on all other parties not less than 14 days before the date fixed for trial; and(b) within 7 days after the affidavit is served, another party has not objected to the use of the affidavit at the trial.(2) An objection under subrule (1)(b) is to be in writing.(3) The Court may receive as evidence an affidavit served under this rule and to which no objection has been made.(4) The Court is to order a party whose objection it considers unreasonable to bear relevant costs.
(1) A party may file a summons in a form specified in a practice direction requiring a witness to attend at a trial to give evidence or to produce evidentiary material.(2) A registrar is to issue the summons referred to in subrule (1) .(3) The party filing the summons is to serve the summons on all other parties not less than 4 days before the date fixed for the attendance of the witness.
103. Examination of witnesses on commission
At or before trial, the Court may –(a) order the examination of a witness on oath; and(b) require the attendance of a witness for that purpose; and(c) fix a date, time and place for the examination; and(d) appoint a person to take the evidence of the witness; and(e) issue an instrument of appointment of that person under the Court seal.
(1) A witness who attends to give evidence at or before trial is entitled to be paid the witness fees and expenses specified in Schedule 2 in respect of that attendance.(2) If a witness is released before, or is not required to attend until after, the lunch break on any day, only half of any fee specified in item 1 of the table in Schedule 2 is allowed.(3) An assessment officer may determine that a fee less than any fee specified in item 1 of the table in Schedule 2 is payable for attendance for less than half a day.
(1) A party intending to rely on the opinion of any expert at the trial of an action is to –(a) obtain a written report from the expert; and(b) serve on all other parties a copy of the report, together with the name, address and qualifications of the expert –(i) within 21 days after obtaining the report; and(ii) not less than 21 days before the date fixed for trial; and(c) file a copy of the report not less than 7 days before –(i) the date fixed for trial; or(ii) if a conciliation conference is to be held, the date fixed for the conciliation conference.(2) If a party does not comply with subrule (1) , the Court may refuse to hear the expert.(3) The Court may receive a report from an expert as an exhibit whether or not the expert is called as a witness.
106. Admission of formal evidence and evidence not in dispute
(1) If a party believes that the attendance of a witness at trial is not necessary because the evidence to be given or produced by the witness is of a formal nature only or is not likely to be the subject of dispute, the party may give notice to all other parties in writing –(a) conveying that belief; and(b) identifying the witness; and(c) specifying the facts or opinion that the evidence is likely to establish.(2) The notice is to be filed and served on all other parties not less than 14 days before the date fixed for trial.
(1) A party who is served with a notice under rule 106 may object to that notice.(2) An objection –(a) is to be in writing; and(b) is to include detailed reasons for the objection; and(c) is to be served on all other parties.(3) Unless an objection is filed and served within 7 days after the date of service of the notice –(a) the witness need not attend at trial; and(b) the contents of the notice are taken to be admitted.(4) The Court may order a party whose objection it considers unreasonable to bear relevant costs.(5) The Court may order a party who calls a witness to bear relevant costs if –(a) the Court certifies at the time of giving judgment that the evidence given by the witness at trial –(i) related to formal matters only; or(ii) was not the subject of dispute; and(b) a notice referred to in subrule (1) was not given.
(1) The Court is to keep a record of, and consecutively number, any exhibits tendered by a party at trial.(2) The Court is to retain any exhibits tendered for any relevant appeal or review period.
If a party fails to attend within 15 minutes after the time fixed for trial, the Court may enter judgment or make an order against, and in the absence of, that party, without hearing any evidence.
PART 7 - Judgment
A judgment takes effect on the date on which it is given unless the Court orders otherwise.
(1) The Court may –(a) give reasons for final judgment at the conclusion of a trial; or(b) reserve its judgment.(2) Reasons for final judgment may be delivered orally or in writing.(3) If the Court delivers a final judgment orally, in any subsequent publication of that judgment the Court may formally edit its reasons for judgment.(4) If the magistrate before whom a trial was conducted is unable to deliver a reserved final judgment, another magistrate may deliver the judgment to the parties in open court.
112. Setting aside or varying final judgment
(1) The Court, on the application of a party or on its own initiative, may set aside or vary a final judgment –(a) before it is entered; or(b) after it is entered, if –(i) the judgment was obtained by fraud; or(ii) the judgment does not reflect the intention of the Court; or(iii) the parties consent.(2) An application to set aside or vary a final judgment is to be filed in the registry in which the action was commenced or to which it was transferred under rule 30(2) .(3) A clerical mistake or error arising from a clerical mistake in a judgment may be corrected by –(a) the Court, on its own initiative or on the application of a party; or(b) a registrar –(i) at the direction of the Court; or(ii) with the consent of all parties.
113. Setting aside or varying interlocutory judgments
(1) The Court, on the application of a party, may set aside or vary any judgment that is not a final judgment.(2) The Court is not to set aside a judgment under subrule (1) unless the applicant establishes that it has –(a) an arguable case on the merits; and(b) a reasonable excuse for not complying with –(i) these rules or an order made under these rules; or(ii) any time limit fixed by these rules, any order made under these rules or any practice direction.(3) In setting aside a judgment, the Court may order –(a) payment to a party of any costs thrown away; or(b) that a sum of money be paid, or other security given, to a registrar under rule 144 .
(1) The Court may enter judgment in the terms of a consent to judgment filed jointly by the parties.(2) A consent judgment under subrule (1) may be entered in the absence of the parties.(3) A registrar may enter a consent judgment.(4) A consent judgment is to be in a form specified in a practice direction.
(1) A party, at any stage of the proceedings, may apply to the Court for –(a) summary judgment in an action; or(b) the disposal of the whole or part of an action; or(c) immediate relief.(2) The party is to file an affidavit in support of an application under subrule (1) , specifying –(a) the reason any other party, on any possible view of the facts or law, does not have a good action or defence on the merits; or(b) the reason relief ought to be granted.(3) On hearing the application, the Court may –(a) enter judgment accordingly; or(b) grant the whole or part of the relief sought and order that the action continue in relation to the part not disposed of; or(c) make an order for an early trial; or(d) make any other order.
116. Judgment in default of defence
(1) If a person is served with a claim and does not file a defence within 21 days after the date of service or within any other time limit fixed by the Court, the claimant, on filing an affidavit of service, may enter default judgment against the person served.(2) A claimant is to enter default judgment by filing a document in a form specified in a practice direction at the registry in the district in which the action was commenced or to which the action was transferred under rule 30(2) .(3) A party is not to enter default judgment on a counterclaim, interpleader or third party claim.
117. Amount of default judgment
(1) Default judgment in respect of a claim for a debt or liquidated sum, a claim for the cost of repairs to property or a claim for the loss of property is to include a statement specifying –(a) the amount claimed in the action; and(b) costs in accordance with Part 3 of Schedule 1 ; and(c) interest at the prescribed rate, payable for the following periods:(i) in the case of a debt or liquidated sum, from the date on which the liability to pay the amount of the claim was due to the date of judgment;(ii) in the case of repairs or loss, from the date of filing the claim to the date of judgment.(2) An action for the recovery of premises or ejectment is taken to be a claim for a liquidated sum under subrule (1) if it –(a) includes a claim for damages for wrongful dispossession; and(b) specifies that the rate of claim of those damages does not exceed the rate of rent payable at the time of termination of the tenancy.
118. Claim for property repair or loss
(1) A claimant may only enter judgment for a claim for the cost of repairs to property or for the loss of property referred to in rule 117 if the claimant provides proof to a registrar that a copy of any evidentiary material on which the claimant intended to rely at trial was served –(a) on the person served with the claim; and(b) at the same time the claim was served.(2) The claimant is to serve at least one of the following documents with the claim:(a) a repair or loss account;(b) a quotation, invoice or receipt for the repair or replacement of the loss.(3) A claim for the cost of repairs to property or for the loss of property may include a liquidated sum in respect of –(a) towing and storage fees incurred in respect of the repairs to that property; and(b) the reasonable cost of renting alternative property while the property was under repair; and(c) any other incidental expenses.
119. Hearing of default assessments
(1) If a claimant enters default judgment for a claim not referred to in rule 117 , a registrar is to fix a date, time and place for a hearing in respect of the assessment of damages or any other order, remedy or relief the action may require.(2) The claimant is to serve on all other parties not less than 21 days before the date fixed for the hearing –(a) a notice of hearing in a form specified in a practice direction; and(b) a copy of any affidavit evidence to be relied on; and(c) a written schedule of costs sought in accordance with Schedule 1 .(3) A party who enters judgment under this rule need not attend the hearing unless the Court so orders.
PART 8 - Enforcement of judgments
Division 1 - Enforcement process
120. Issue of enforcement process
An enforcement process is to be issued from the registry in which the enforcement proceedings are pending.
121. Enforcement process on certain judgments
A registrar is not to issue an enforcement process in respect of a judgment that is more than 6 years old except with the leave of the Court.
122. Service of enforcement process
An enforcement process is to be served by a bailiff on the person to whom it is directed.
123. Application to set aside or vary enforcement process
An application to set aside or vary an enforcement process is to be filed in the registry in which the enforcement process was filed.
If cross-judgments are obtained by both parties, whether in separate actions or in the same action –(a) if the judgment debts are unequal, only the balance is enforceable; and(b) if the judgment debts are equal, neither judgment is enforceable.
Division 2 - Attachment orders
(1) The Court may make an order that garnishees the financial resources of a judgment debtor to satisfy a judgment debt.(2) The Court may make an attachment order –(a) on giving judgment; or(b) on the application of a judgment creditor in a form specified in a practice direction.(3) The Court may receive evidence by affidavit to prove –(a) the extent to which a judgment debt remains unpaid; and(b) any other relevant matter.(4) A consent in respect of the attachment of salary or wages is to be –(a) in writing and signed by the judgment debtor personally; or(b) given by a practitioner on behalf of the judgment debtor.
126. Service of attachment order nisi
If the Court makes an attachment order in the absence of a garnishee or judgment debtor –(a) the judgment creditor is to serve the garnishee with the order as soon as practicable; and(b) the Court is to adjourn the hearing to a date, time and place fixed by the Court; and(c) the judgment creditor is to serve notice of the adjourned hearing and the application on the garnishee and the judgment debtor not less than 4 days before the adjourned date.
127. Attachment order absolute
(1) On proof of service of any document required to be served under rule 126 , the Court may proceed in the absence of a garnishee or judgment debtor.(2) An attachment order confirmed or varied at an adjourned hearing in the absence of a garnishee is to be served immediately by the judgment creditor on the garnishee.(3) A garnishee may show cause why an order nisi is not to be made absolute.
128. Registration of judgment against garnishee
(1) A judgment creditor may apply to the Court for the registration of a judgment against a garnishee.(2) A judgment creditor is to serve an application under subrule (1) on a garnishee in accordance with rule 40(1) .(3) The Court may receive evidence by affidavit to prove –(a) the extent to which the judgment debt remains unpaid; or(b) any other relevant matter.
129. Variation of attachment order
(1) A judgment creditor, judgment debtor or garnishee may apply to the Court to vary or revoke an attachment order.(2) The application is to be served on all other parties not less than 4 days before the date fixed for the hearing of the application.(3) The Court is not to vary or revoke an attachment order unless there are material facts or circumstances that have changed since the order was made.
Division 3 - Warrants
130. Warrant to seize and sell property
(1) A registrar may issue a warrant for the seizure and sale of a judgment debtor's property.(2) A warrant is to be in a form specified in a practice direction and is to contain a statement specifying –(a) the amount of the judgment and any costs of the action that remain outstanding; and(b) the costs of preparing and filing the warrant in accordance with Part 3 of Schedule 1 ; and(c) the amount of interest claimed in accordance with section 26 of the Act; and(d) the prescribed fee for the filing of the warrant; and(e) the prescribed fee for the execution of the warrant by the bailiff; and(f) any reasonable and necessary expenses incurred in executing the warrant.(3) A warrant issued under subrule (1) expires 12 months after the date on which it is issued.(4) After the expiry of a warrant and within the period referred to in rule 121 , a registrar may issue a further warrant in respect of the same judgment.
(1) A bailiff, in executing a warrant issued under rule 130 , is not to seize from a judgment debtor any of the following items:(a) personal clothing and bedding;(b) tools of trade up to a value of $3000.(2) A bailiff may allow a judgment debtor to retain possession of any seized property –(a) until a sale of the property is held; or(b) for a period determined by the bailiff pending the payment of the judgment debt.
(1) A bailiff may sell a judgment debtor's interest in any property after the expiration of a period of 7 days from the date the property is seized under rule 130 .(2) Property may be sold –(a) by public auction conducted by a private auctioneer or the bailiff; or(b) in a manner directed by the Court.(3) Not less than 3 days before a sale is held, the bailiff is to advertise the sale in a daily newspaper circulating generally in the area in which the sale is to be held.(4) A bailiff or any person employed in the same business or organisation as the bailiff must not directly or indirectly purchase at the sale any property seized by that bailiff.Penalty: Fine not exceeding 10 penalty units.(5) A bailiff may execute any necessary documents to transfer a judgment debtor's interest in any property sold under the warrant.(6) The execution of any documents under subrule (5) has the effect of fully transferring to the purchaser any interest of the judgment debtor in the property sold.
133. Directions as to sale of property
(1) A judgment creditor, judgment debtor or bailiff may apply to the Court for a direction –(a) as to the manner of the sale of property under a warrant issued under rule 130 ; or(b) that any real property be sold before personal property.(2) An application under subrule (1) is to be served on all other parties not less than 4 days before the date fixed for the hearing of the application.
134. Bailiff's duties and entitlements
(1) A bailiff is to provide a registrar with a written report within 2 days after –(a) unsuccessfully attempting to seize any property; or(b) seizing any property; or(c) selling any property.(2) If an attempt to seize property under the warrant is unsuccessful, the bailiff is to return the warrant to the registrar with the report referred to in subrule (1) .(3) A bailiff is entitled to recover from the proceeds of a sale any reasonable and necessary expenses incurred in executing the warrant, including towing fees, storage fees, auctioneer's fees and valuation fees.
(1) A registrar, on the request of a person in whose favour a judgment for recovery or delivery up of possession of property has been given, is to issue to the bailiff a warrant of possession in a form specified in a practice direction.(2) A warrant issued under subrule (1) expires 12 months after the date on which it is issued.(3) After the expiry of a warrant and within the period referred to in rule 121 , a registrar may issue a further warrant in respect of the same judgment.
136. Other claim over property seized
(1) Any person other than a judgment debtor is to give notice in writing to a bailiff if that person claims any interest in –(a) any debt or personal property taken or intended to be taken by the bailiff in the execution of any process; or(b) the proceeds of the execution of any process.(2) The notice of claim is to state the person's address for service.(3) A bailiff is to deliver the notice of claim to the judgment creditor as soon as practicable.(4) The judgment creditor, within 4 days after receiving the notice, is to give the bailiff notice in writing as to whether the claim is admitted or disputed.
(1) On receiving a notice from a judgment creditor admitting a claim under rule 136(4) , a bailiff may –(a) withdraw from possession of the property claimed in the notice; and(b) apply to the Court for an order restraining the bringing of an action against the bailiff for or in respect of the bailiff having taken possession of that property.(2) A bailiff may apply to the Court for relief by way of interpleader –(a) on receipt of a notice from a judgment creditor disputing a claim; or(b) if the judgment creditor fails to give notice to the bailiff under rule 136(4) within the period specified in that subrule.(3) A judgment creditor who admits a claim is only liable to a bailiff for any costs, fees and expenses the bailiff incurs before receipt of the notice admitting the claim.(4) A bailiff's claim for costs, fees and expenses is not an interest in the property for the purpose of interpleader proceedings.
PART 9 - Costs
Division 1 - Costs generally
(1) Unless the Court orders otherwise, a successful party in an action is entitled on judgment to costs against an unsuccessful party in accordance with this rule and rule 139 .(2) If judgment is in respect of an action for a sum of money –(a) a successful claimant is entitled to costs on the relevant scale specified in Schedule 1 applicable to the sum actually recovered; and(b) a successful defendant is entitled to costs on the relevant scale specified in Schedule 1 applicable to the sum claimed.(3) If judgment is in respect of an action other than for a sum of money, a successful party is entitled to costs on the applicable scale in Schedule 1 as determined by the Court.(4) Each item in Schedule 1 is inclusive of costs for all incidental and necessary activity and advice.(5) Costs are not allowed for any item not listed in Schedule 1 .(6) An assessment officer may determine that a lesser amount than that specified for any item listed in Parts 1 and 2 of Schedule 1 is allowed.(7) If a scale of costs in respect of a particular action is not specified in Schedule 1 , the Court, on the application of a successful party or at the request of a registrar, may fix an appropriate scale of costs.(8) If the Court considers proper cause exists, the Court may order that a successful party is entitled to costs on a practitioner and client basis.
(1) The Court, on the application of a party, may order that an action is a complex action.(2) If the Court makes an order under subrule (1) , a successful party is entitled to costs on the scale specified in Part 2 of Schedule 1 .
If the costs of any proceedings are reserved,costs are to be determined at the conclusion of the action, unless the Court orders otherwise.
141. Consequences of not bettering offers or payments
(1) In making an order as to costs at a trial, the Court may take the following into account:(a) an offer of compromise;(b) a payment into Court;(c) a refusal or failure to accept an offer or payment.(2) Unless the Court orders otherwise –(a) if a claimant obtains final judgment for a sum of money equal to or less than the amount of any offer or payment by the defendant, the claimant is only entitled to costs for a period up to 14 days after the date of service of the offer or the date of the payment into Court and, following the expiration of that period, the defendant is entitled to costs on the scale applicable to the amount claimed by the claimant; and(b) if a claimant obtains final judgment for a sum of money more than the amount of any offer by the claimant, the claimant is entitled to costs on a practitioner and client basis for the whole action.(3) Subrule (2) does not apply if an offer of compromise is withdrawn.
142. Cost penalty for inadequate offer
(1) This rule applies to costs in an action in which a party obtains final judgment, other than by consent, for an amount that is 200% or more than an offer of compromise under rule 89 or a payment into Court made on the operative date.(2) Unless the Court orders otherwise, the costs to which a party is entitled are to be calculated in accordance with the following formula:where –C is the costs to which the party is entitled;P is the costs of the party, as agreed or assessed;J is the sum of money awarded by the judgment, exclusive of costs and interest;A is the amount contained in the offer or the payment.(3) If an offer or payment is not filed or made, "A" is zero.(4) The costs to which a party is entitled under this rule are not to exceed practitioner and client costs.(5) If this rule and rule 143 apply to the same action, neither rule has effect.
143. Cost penalty for excessive claim
(1) This rule applies to an action in which a party obtains a final judgment, other than by consent, for an amount that is less than 50% of the amount claimed by the party at the operative date.(2) Unless at the time of judgment the Court orders otherwise, the costs to which a party referred to in subrule (1) is entitled are to be calculated in accordance with the following formula:where –C is the costs to which the party is entitled;P is the costs of the party, as agreed or assessed;J is the sum of money awarded by the judgment, exclusive of costs and interest;A is the amount claimed at the operative date.(3) The amount claimed may be amended by order of the Court or a registrar at a conciliation conference.(4) An amendment to an amount claimed is effective from the date of the order.(5) If this rule and rule 142 apply to the same action, neither rule has effect.
(1) The Court may order a party to pay a sum of money or to give other security to a registrar in respect of the whole or part of the costs of an action.(2) The sum of money or other security is to be held by the registrar until the action is concluded.(3) The Court may order a party to give a bond or undertaking.(4) The Court may require a party to obtain a guarantee or other surety in respect of the whole or part of that party's costs in the action.(5) The Court may make it a condition of an action proceeding any further that a party against whom an order for costs is made is to make payment of the costs within a time limit fixed by the Court.
145. Costs of unsuccessful objections to evidence
Unless the Court orders otherwise, a party who objects at a trial to the authenticity or admissibility of relevant evidence or a reproduction or specimen of relevant evidentiary material is to pay any costs incurred by the objection if the authenticity or admissibility is subsequently established.
Division 2 - Assessment of costs
If costs are not agreed between parties to an action, a successful party may serve on an unsuccessful party a bill of costs in a form specified in a practice direction.
147. Objection to bill of costs
(1) An unsuccessful party is taken to admit each item on a bill of costs unless that party files and serves a notice of objection on the successful party within 21 days after the date of service of a bill of costs under rule 146 .(2) A notice of objection is to specify –(a) the items objected to on the bill of costs; and(b) detailed reasons for each objection.(3) A party who files an objection under subrule (1) is to file a copy of the bill of costs with the notice of objection.
(1) On the filing of a notice of objection under rule 148 , a registrar is to fix, and give notice in writing to the parties of, a date, time and place for an assessment of costs.(2) At an assessment of costs, the Court or a registrar may –(a) assess costs; and(b) allow costs in respect of the assessment.(3) An assessment of costs may proceed in the absence of any party.(4) If the disallowed costs represent one-sixth or more of the allowed costs as specified in the certificate of assessment –(a) the successful party is not entitled to any costs in respect of the assessment; and(b) costs in respect of the assessment may be awarded to an unsuccessful party.
149. Certificate of assessment
(1) At the expiration of a period of 48 hours after the conclusion of an assessment of costs, a registrar is to issue a certificate of assessment in respect of the bill of costs.(2) A registrar may issue an interim certificate of assessment before the conclusion of an assessment in respect of any portion of a bill of costs.(3) Pending the determination of a review under rule 151 of any item on a bill of costs, a registrar may issue a certificate of assessment in respect of the remainder of the bill of costs.
(1) Before a certificate of assessment is issued, any party who is dissatisfied with any item allowed or disallowed in an assessment of costs may apply for a review of the assessment.(2) A party who applies for a review under subrule (1) is to –(a) file and serve a notice of review specifying any item in respect of which a review is sought; and(b) give detailed reasons for seeking the review of each item.(3) On the filing of a notice of review, a registrar is to –(a) review the assessment of costs in respect of the items specified; and(b) issue a certificate of assessment; and(c) provide written reasons for the decision to allow or disallow any item reviewed.
PART 10 - Miscellaneous
(1) A registrar is to –(a) seal any document required to be sealed under the Act or these rules; and(b) deliver a summons or process to a bailiff immediately after –(i) the issue of the summons; or(ii) the receipt of a request to issue an enforcement process; and(c) keep books of account under the Financial Management and Audit Act 1990 ; and(d) do anything necessary or expedient to give effect to the Act or these rules.(2) A registrar may apply to the Court for directions in respect of the discharge of a registrar's functions under the Act or these rules.(3) The Court may direct that a registrar adopt, with necessary modification, the appropriate practice and procedure of the Supreme Court.
152. Review of registrar's decision
(1) A person may apply to a magistrate for a review of any decision or act of a registrar.(2) On review, the magistrate may –(a) confirm, vary or reverse the decision; or(b) make any appropriate order in respect of the act.(3) The magistrate is to conduct the review –(a) by way of rehearing; and(b) in any manner the magistrate considers appropriate.(4) A registrar may refer any matter to a magistrate.
(1) The district registrar in respect of a district registry has the custody of –(a) the Court stamp; and(b) all books, records and documents relating to actions and proceedings in that registry; and(c) subject to an order of the Court, all exhibits in that registry for any relevant appeal or review period.(2) Any record kept by a registrar in respect of proceedings of the Court may be kept in electronic form.
154. Certified copies of records
(1) A registrar may provide any person with a certified copy of any record kept by the registrar.(2) The contents of any record in the custody of a registrar may be proved by a certified copy of that record.
(1) A registrar, on the application of any person and payment of any prescribed fee, is to make available for inspection by that person any of the following:(a) a transcript of evidence taken by the Court in any proceedings;(b) any documentary material admitted into evidence in any proceedings;(c) a transcript of submissions by counsel;(d) a transcript of reasons for judgment;(e) any judgment entered or order made under these rules.(2) On the payment of any prescribed fee, a registrar is to provide a person with a copy of any material that is available for inspection under this rule.(3) Evidence or evidentiary material is not to be made available for inspection under this rule if –(a) the evidence or evidentiary material was not given or produced in open court; or(b) the Court has suppressed the evidence or evidentiary material from publication; or(c) the Court has determined that the evidence or evidentiary material is not to be made available for inspection under this rule.(4) Except with the leave of the Court, a person who is not a party to proceedings is not to search in the registry for, or inspect, any of the following:(a) any judgment, order, transcript of a proceeding or other document that the Court has ordered to remain confidential;(b) any affidavit;(c) any interrogatory or answer to an interrogatory;(d) any list of discovered documents;(e) any admission;(f) any evidence taken on deposition;(g) any summons to a witness or any document lodged with the registrar in answer to a summons to a witness;(h) any other document that the registrar considers ought to remain confidential to the parties.(5) Except with the leave of the Court, a party is not to search in the registry for, or inspect, any document, evidence or other thing that the Court orders is to be kept confidential or privileged from production.
(1) Each registry is to assign a serial number to the first document in an action.(2) Anyother document in the action is to bear that serial number together with a reference to the calendar year in which the first document was filed.(3) Each registry is to commence a new series of serial numbers at the beginning of each calendar year.
157. Opening hours of registry
(1) Each registry is to be open between the hours and on the days the Chief Magistrate, in consultation with the Administrator, determines.(2) A registrar may accept any document filed outside the hours specified.
158. Approved document exchange
(1) The Chief Magistrate, on the recommendation of The Law Society of Tasmania, may approve for the purpose of service under these rules the following:(a) a document exchange;(b) the electronic exchange of documents between computers.(2) The Chief Magistrate may revoke an approval under subrule (1) .(3) An approval or its revocation is to be –(a) in writing; and(b) lodged in each district registry; and(c) lodged with The Law Society of Tasmania.
(1) The Administrator is to establish an interest-bearing account with a bank, building society or credit union.(2) The account is to be known as the Magistrates Court (Civil Division) Litigants Fund.(3) Each district registrar is a signatory to the account.(4) Money received by a district registrar as payment into Court or as security is to be paid into the Litigants Fund unless the Court orders otherwise.(5) A district registrar may only pay money out of the account in accordance with –(a) an order of the Court; or(b) the terms of consent of the parties.
160. Interest applicable to Litigants Fund
(1) As soon as practicable after 30 June and 31 December in each year, the Administrator is to certify the rate of interest applicable to the Litigants Fund for the immediately preceding 6-month period.(2) The certified rate is to be not more than, and within 1% of, the average rate of interest paid on money in the account of the Litigants Fund during the relevant period.(3) The Administrator is to maintain a register of certifications.(4) Money paid into the Litigants Fund is to accrue interest at the certified rate.(5) Unless the Court orders otherwise, interest is taken to be part of the principal paid into the Litigants Fund.(6) Interest does not accrue in respect of any 6-month period unless the Administrator has certified the rate under subrule (1) .(7) The Court may order the appropriate disposition of interest accrued under this rule.
SCHEDULE 1 - Costs and expenses
Rules 25 , 117 , 130 , 138 and 139
PART 1 - Routine actions
ITEM | $1 - $10 000 | $10 001 - $20 000 | $20 001 and above | 1 Filing claim for sum of money (defence and counterclaim allowed only as one item) - to the nearest $10 | 4% of judgment sum | 4% of judgment sum | 4% of judgment sum, up to maximum of $1 200 | 2 Filing claim other than for sum of money | $400 | 3 Routine request relating to discovery or inspection, including costs for perusal of reply | $40 | $70 | $100 | 4 Request requiring drafting of particulars or interrogatories including costs for perusal of reply | $100 | $150 | $200 | 5 Notice to admit facts, filed offer, payment into Court or other notice requiring particular instructions, including costs for perusal of reply | $200 | $300 | $400 | 6 For each of the following: | $100 | $150 | $200 | (a) replying to – | (ii) notice under item 5 | (b) providing personal injury particulars | (c) making discovery (if required under these rules) | 7 Preparing, filing and serving an application, including proof of service | $50 | $100 | $150 | 8 Simple affidavit | $30 | $40 | $50 | 9 Lengthy affidavit | $80 | $100 | $150 | 10 Any aspect not otherwise provided for and incidental to preparing for trial, including proofing witnesses, advice on evidence and law and delivering brief to counsel, including in-house counsel - to the nearest $10 | 10% of judgment sum | 10% of judgment sum | 10% of judgment sum, up to maximum of $3 000 | 11 Arranging witnesses for trial, including obtaining, filing and serving expert reports - each witness | $30 | $40 | $50 | 12 Issuing and serving summons to witness - each witness | $30 | $40 | $50 | 13 Filing default judgment, garnishee application or warrant to sell property not otherwise provided for | $30 | $30 | $30 | 14 Service of document not in the usual course served by the Court and not otherwise provided for – | (a) personal service, if required by these rules | $60 | $60 | $60 | (b) other manner of service | $30 | $30 | $30 | 15 Preparing bill of costs, including attendance on assessment | $150 | $175 | $200 | Attendances | 16 Attendance for inspection (any party) | $80 | $100 | $120 | 17 Attendance at listing conference, directions hearing or routine application | $40 | $60 | $80 | 18 Attendance at application requiring special argument or at conciliation conference | $80 | $120 | $150 | 19 Advice oncompromise or settlement for person under disability – | (a) if quantum only in dispute | $150 | $230 | $300 | (b) if quantum and liability in dispute | $200 | $300 | $400 | 20 Attendance as counsel at trial, including fee on brief and refreshers – | (a) first day | $750 | $900 | $1 200 | (b) each subsequent day | $500 | $600 | $800 | 21 Attendance as counsel for judgment | $50 | $50 | $50 |
PART 2 - Complex actions
ITEM | $1 - $10 000 | $10 001 - $20 000 | $20 001 and above | 1 Filing claim for sum of money (defence and counterclaim allowed only as one item) - to the nearest $10 | 6% of judgment sum | 6% of judgment sum | 6% of judgment sum, up to maximum of $1 800 | 2 Filing claim other than for sum of money | $600 | 3 Routine request relating to discovery or inspection, including costs for perusal of reply | $40 | $70 | $100 | 4 Request requiring drafting of particulars or interrogatories, including costs for perusal of reply | $100 | $150 | $200 | 5 Notice to admit facts, filed offer, payment into Court or other notice requiring particular instructions, including costs for perusal of reply | $300 | $400 | $500 | 6 For each of the following: | $150 | $225 | $300 | (a) replying to – | (ii) notice under item 5 | (b) providing personal injury particulars | (c) making discovery (if required under these rules) | 7 Preparing, filing and serving an application, including proof of service | $50 | $100 | $150 | 8 Simple affidavit | $30 | $40 | $50 | 9 Lengthy affidavit | $80 | $100 | $150 | 10 Any aspect not otherwise provided for and incidental to preparing for trial, including proofing witnesses, advice on evidence and law and delivering brief to counsel, including in-house counsel - to the nearest $10 | 15% of judgment sum | 15% of judgment sum | 15% of judgment sum, up to maximum of $4 500 | 11 Arranging witnesses for trial, including obtaining, filing and serving expert reports - each witness | $30 | $40 | $50 | 12 Issuing and serving summons to witness - each witness | $30 | $40 | $50 | 13 Filing default judgment, garnishee application or warrant to sell property not otherwise provided for | $30 | $30 | $30 | 14 Service of document not in the usual course served by the Court and not otherwise provided for – | (a) personal service, if required under these rules | $60 | $60 | $60 | (b) other manner of service | $30 | $30 | $30 | 15 Preparing bill of costs, including attendance on assessment | $150 | $175 | $200 | Attendances | 16 Attendance for inspection (any party) | $110 | $160 | $210 | 17 Attendance at listing conference, directions hearing or routine application | $40 | $60 | $80 | 18 Attendance at application requiring special argument or at conciliation conference | $150 | $200 | $250 | 19 Advice on compromise or settlement for person under disability – | (a) if quantum only in dispute | $150 | $230 | $300 | (b) if quantum and liability in dispute | $200 | $300 | $400 | 20 Attendance as counsel at trial, including fee on brief and refreshers – | (a) first day | $900 | $1 200 | $1 500 | (b) each subsequent day | $600 | $800 | $1 000 | 21 Attendance as counsel for judgment | $50 | $50 | $50 |
PART 3 - Costs endorsed on process
Amount claimed in action | Item | up to $1 000 | $1 001 – $3 000 | $3 001 – $5 000 | $5 001 – $10 000 | $10 001 – $20 000 | 1 | Preparing and filing liquidated claim | $60 | $120 | $180 | $240 | $300 | 2 | Entering default judgment | $30 | $30 | $30 | $30 | $30 | 3 | Assessing damages under rule 119 | $50 | $60 | $70 | $80 | $120 | 4 | Preparing and filing warrant to sell property or garnishee application. | $30 | $30 | $30 | $30 | $30 |
SCHEDULE 2 - Witness fees and disbursements
1 | Witness fees | (a) Professional, scientific or other expert witness - each day | $350 or other amount ordered by the Court or determined by assessment officer | (b) Other adult person - each day | $150 | (c) Person under 18 years of age - each day | $50 | 2 | Witness expenses | Travel expenses (including meals, travelling and accommodation) | At the same rate and on the same terms as prescribed for equivalent allowance in the General Conditions of Service Award under the Industrial Relations Act 1984 for permanent or temporary employees under the Tasmanian State Service Act 1984 | 3 | Photocopying | each page | 50 cents | 4 | STD calls | Actual cost | 5 | Court fees, other fees and payments, excluding the usual and incidental expenses and overheads of a legal practice and in particular excludes postage, telephone charges (non-STD) and courier expenses. | To the extent to which they have been properly and reasonably incurred and paid | 6 | Expert reports | $300 or other amount ordered by the Court or determined by assessment officer |
These Rules of Court were made by the Rules Committee of Magistrates Court (Civil Division) at a meeting held on 29 March 1998.
A. G. SHOTT
Chief Magistrate
MICHAEL HILL
Deputy Chief Magistrate
P. WILSON
Member
D. J. JONES
Member
HELEN WOOD
Member
P. F. DIXON
Member
ROGER WILLEE
Member
R. WEBSTER
Member
Displayed and numbered in accordance with the Rules Publication Act 1953.
Notified in the Gazette on 30 March 1998
These rules are administered in the Department of Justice.
EXPLANATORY NOTE
(This note is not part of the rule)
These rules regulate the proceedings in the Magistrates Court under the Magistrates Court (Civil Division) Act 1992 .