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 ;[Rule 3 Amended by S.R. 2013, No. 69, Applied:04 Sep 2013][Rule 3 Amended by S.R. 2013, No. 69, Applied:04 Sep 2013] action means an action commenced by a claim;[Rule 3 Amended by S.R. 2013, No. 69, Applied:04 Sep 2013] 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 a proceeding;[Rule 3 Amended by S.R. 2013, No. 69, Applied:04 Sep 2013] application means –(a) an originating application, in writing, by which a proceeding mentioned in Division 4A of Part 3 is commenced; or(b) an interlocutory application, whether oral or in writing, made to the Court in the course of any proceedings already commenced in the Court;[Rule 3 Amended by S.R. 2013, No. 69, Applied:04 Sep 2013] approved means approved by the Chief Magistrate;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;[Rule 3 Amended by S.R. 2003, No. 119, Applied:03 Oct 2003] claim includes any minor civil claim, any other 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;[Rule 3 Amended by S.R. 2013, No. 69, Applied:04 Sep 2013] complex proceeding means a complex proceeding referred to in rule 139 ;conciliation conference means a conference held to consider the matters specified in rule 87 ;[Rule 3 Amended by S.R. 2000, No. 195, Applied:15 Nov 2000] conciliator means a person appointed under rule 80A to conduct conciliation conferences and mediation conferences;[Rule 3 Amended by S.R. 2013, No. 69, Applied:04 Sep 2013] conduct a proceeding includes compromise a proceeding;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) [Rule 3 Amended by S.R. 2013, No. 69, Applied:04 Sep 2013] a judgment, declaration, decree, decision or order of the Court finally disposing of a proceeding; or(b) an interlocutory judgment, declaration, decree, decision or order of the Court;judgment debt includes costs and interest;[Rule 3 Amended by S.R. 2009, No. 78, Applied:08 Jul 2009] law practice has the same meaning as in the Legal Profession Act 2007 ;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;[Rule 3 Amended by S.R. 2013, No. 69, Applied:04 Sep 2013] originating process means –(a) any document by which an original proceeding is commenced; and(b) a claim;[Rule 3 Amended by S.R. 2013, No. 69, Applied:04 Sep 2013] party means a party to any proceeding;payment into Court means a payment to a registrar under rule 92(1) ;person under disability means –(a) an infant; or(b) [Rule 3 Amended by S.R. 2013, No. 69, Applied:04 Sep 2013] any other party who by reason of physical, mental or intellectual impairment is unable to give sufficient instructions to conduct a proceeding;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 ;[Rule 3 Amended by S.R. 2009, No. 78, Applied:08 Jul 2009][Rule 3 Amended by S.R. 2009, No. 78, Applied:08 Jul 2009] practitioner means an Australian legal practitioner;prescribed rate means the prescribed rate for the purpose of Division 2 of Part 5 of the Act;[Rule 3 Amended by S.R. 2013, No. 69, Applied:04 Sep 2013][Rule 3 Amended by S.R. 2013, No. 69, Applied:04 Sep 2013] proceeding means any matter commenced by originating process;property means real or personal property;representation order means an order under rule 16 ;[Rule 3 Amended by S.R. 2013, No. 69, Applied:04 Sep 2013] routine proceeding means any action other than a complex proceeding;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) [Rule 4 Amended by S.R. 2013, No. 69, Applied:04 Sep 2013] the importance or complexity of the proceeding; 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) [Rule 6 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] If the Court considers that a proceeding has been unduly delayed, the Court, on its own initiative and by giving notice to the parties, may make any of the following orders:(a) [Rule 6 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] an order that the proceeding proceed to trial as soon as practicable;(b) [Rule 6 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] an order fixing time limits in respect of any subsequent proceeding;(c) [Rule 6 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] an order fixing the date for the trial of the proceeding;(d) [Rule 6 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] an order that the proceeding be dismissed.(2) [Rule 6 Subrule (2) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] Any party to a proceeding may apply for an order under subrule (1) .(3) [Rule 6 Subrule (3) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] In determining whether or not a proceeding has 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) [Rule 6 Subrule (4) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] The dismissal of a proceeding under subrule (1)(d) has effect as an interlocutory judgment.
[Rule 7 Amended by S.R. 2013, No. 69, Applied:04 Sep 2013] The Court may give any direction in relation to practice and procedure it considers necessary to ensure the saving of costs in a proceeding.
(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
[Rule 10 Substituted by S.R. 2013, No. 69, Applied:04 Sep 2013] If the manner or form of commencing a proceeding, taking a step or carrying out a process in a proceeding or doing any other thing is not prescribed by these rules or any Act –(a) the Court, of its own motion or on the application of a party or a district registrar, may give directions as to the procedural steps to be taken; or(b) in the absence of any order to the contrary, the Court may adopt, with the necessary modification it thinks fit, the practice and procedure of the Supreme Court.
PART 3 - Proceedings
Division 1 - Parties to a proceeding
[Rule 11 Amended by S.R. 2013, No. 69, Applied:04 Sep 2013] If the identity of any party to an existing proceeding is in issue, the Court may make any order it considers appropriate to ascertain the identity of the party.
11A. Naming of parties and proceedings
[Rule 11A Inserted by S.R. 2013, No. 69, Applied:04 Sep 2013](1) In an action –(a) the person who commences the action is to be called the claimant; and(b) the person against whom the action is commenced is to be called the defendant; and(c) accordingly, the claim, and any other process in the action, is to be headed, after the title of the action, as being between the parties.(2) In a proceeding (other than an action) between parties –(a) the person who commences the proceeding is to be called the applicant; and(b) the person against whom the proceeding is commenced is to be called the respondent; and(c) accordingly, the originating application, and any other process in the proceeding, is to be headed, after the title of the proceeding, as being between the parties.(3) In a proceeding that is not between parties –(a) the person who commences the proceeding is to be called the applicant; and(b) the originating application, and any other process in the proceeding, is to be headed, after the title of the proceeding, "In the Matter of" followed by a reference to the statutory provision, if any, under which the applicant's claim arises.
(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 a proceeding
(1) [Rule 13 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] The Court is to ensure that all necessary parties to a proceeding are joined in the proceeding.(2) [Rule 13 Subrule (2) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] A proceeding is not defeated if parties to the proceeding –(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) [Rule 15 Subrule (2) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] The Court may order that any person beneficially interested in a trust property or estate be joined as a party to a proceeding 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) [Rule 16 Subrule (2) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] 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 a proceeding.(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) [Rule 17 Amended by S.R. 2013, No. 69, Applied:04 Sep 2013] may be withdrawn with the leave of the Court not less than 21 days before the date fixed for the trial of the proceeding.
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) [Rule 18 Subrule (4) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] in order to ascertain if any other person seeks to consent to the representation order, direct that the existence of the proceeding to which the representation order relates be published; and(b) [Rule 18 Subrule (4) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] give a direction as to the manner and form of publication of the existence of the proceeding; and(c) [Rule 18 Subrule (4) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] give a direction as to the manner of legal representation of parties at the trial of the proceeding; 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.
19A. Body of persons acting in proceedings
[Rule 19A Inserted by S.R. 2008, No. 37, Applied:07 May 2008](1) In any proceeding, a body of persons may be represented by a natural person who may, but need not be, a practitioner.(2) Subrule (1) applies regardless of whether the body of persons is –(a) a party to the proceeding; or(b) incorporated or unincorporated.
Division 2 - Persons under disability
20. Litigation guardian for person under disability
(1) [Rule 20 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] A litigation guardian is to conduct a proceeding on behalf of a person under disability.(2) [Rule 20 Subrule (2) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] 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 a proceeding.(3) [Rule 20 Subrule (3) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] A litigation guardian is a party to a proceeding.(4) [Rule 20 Subrule (4) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] Unless the Court orders otherwise, a litigation guardian appointed on behalf of a claimant or applicant 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) [Rule 20 Subrule (6) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] Failure to appoint a litigation guardian does not invalidate a proceeding.
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
[Rule 22 Amended by S.R. 2013, No. 69, Applied:04 Sep 2013] A claim or originating application 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 proceeding by person under disability
(1) [Rule 23 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] A litigation guardian or other party to any proceeding may apply to the Court at any stage of the proceeding for an order approving a compromise or settlement of the proceeding.(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) [Rule 23 Subrule (2) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] exhibiting copies of relevant material appearing in any medical report or hospital record relevant to the proceeding.(3) Any affidavit under subrule (2) is to be filed in a sealed envelope endorsed with –(a) [Rule 23 Subrule (3) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] the title of the proceeding; 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 proceeding by person under disability
(1) [Rule 24 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] The compromise or settlement of any proceeding 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) [Rule 25 Subrule (1) substituted by S.R. 2013, No. 69, Applied:04 Sep 2013] A proceeding that falls within a class of proceeding that is required under the Supreme Court Rules 2000 to be commenced by a writ is to be commenced by a claim.(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) [Rule 25 Subrule (3) amended by S.R. 2014, No. 42, Applied:12 Mar 2014] the amount claimed for costs; and(c) [Rule 25 Subrule (3) amended by S.R. 2014, No. 42, Applied:12 Mar 2014] the amount claimed for service of the claim.(4) [Rule 25 Subrule (4) amended by S.R. 2014, No. 42, Applied:12 Mar 2014] The amount claimed for costs under subrule (3)(b) is to be in accordance with Part 3 of Schedule 1 .(5) [Rule 25 Subrule (5) inserted by S.R. 2014, No. 42, Applied:12 Mar 2014] The amount claimed for service of the claim under subrule (3)(c) is to be in accordance with item 14 of Part 1 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) [Rule 27 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] A person is not to divide any cause of action for the purpose of commencing 2 or more proceedings.(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) [Rule 29 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] at the time of serving the claim, a notice of particulars of personal injury in an approved form.(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 4A - Originating applications
29A. Certain proceedings to be commenced by originating application
[Rule 29A of Part 3 Inserted by S.R. 2013, No. 69, Applied:04 Sep 2013](1) A proceeding that, by or under any Act, may be commenced by application to the Magistrates Court is to be commenced by an originating application.(2) An originating application is to be in an approved form.(3) An originating application is to be filed in a registry.
[Rule 29B of Part 3 Inserted by S.R. 2013, No. 69, Applied:04 Sep 2013](1) An originating application that requires an appearance and is served in Tasmania is to be served at least 9 clear days before the hearing date.(2) An originating application that does not require an appearance and is served in Tasmania is to be served at least 2 clear days before the hearing date.(3) An originating application that is served outside Tasmania is to be served the number of days before the hearing date that is 2 days more than the period limited for the entry of an appearance under rule 99 of the Supreme Court Rules 2000 in respect of the place at which the application is served.
[Rule 29C of Part 3 Inserted by S.R. 2013, No. 69, Applied:04 Sep 2013](1) If a person served with an originating application wishes to take part in the proceeding, the person, within the period limited on the application, is to –(a) file in a registry a notice of appearance; and(b) serve the notice on all other parties to the proceeding.(2) A notice of appearance is to be in the approved form.(3) Unless the Court or a magistrate otherwise orders, a party to an originating application which requires the entry of an appearance is not to be heard on the application before the party has entered his or her appearance.(4) The period for entering an appearance is 7 days after service.
Division 5 - Course of proceeding
30. Registry in which proceeding to be conducted
[Rule 30 Substituted by S.R. 2003, No. 17, Applied:09 Apr 2003](1) If an action is not defended, the parties are to conduct the action, up to and including final judgment, in the registry in which the action was commenced.(2) If an action is defended, the Court is to list the first directions hearing at the Court closest to where –(a) the defendant resides; or(b) the cause of action arose.(2A) [Rule 30 Subrule (2A) inserted by S.R. 2013, No. 69, Applied:04 Sep 2013] In any proceeding other than an action, the proceeding is to be conducted at the Court closest to where –(a) the respondent resides; or(b) the cause of action arose.(3) [Rule 30 Subrule (3) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] If there is disagreement between the parties as to the registry in which the proceeding is to be conducted, the registrar is to decide the location of the registry in which the proceeding is to be conducted.(4) [Rule 30 Subrule (4) inserted by S.R. 2013, No. 69, Applied:04 Sep 2013] The Court may order that a proceeding commenced in one registry be transferred to another registry.
31. Abandonment of claim or application
(1) [Rule 31 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] A claimant or applicant may abandon any part of a claim or right at any stage of the proceedings.(2) [Rule 31 Subrule (2) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] A claimant or applicant is not to make a separate claim or originating application in respect of any part of a claim or right that has been abandoned against that party.
32. Discontinuance of proceeding
(1) [Rule 32 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] A party may discontinue any proceeding commenced by that party at any stage of the proceeding by notice in writing filed and served on any other party.(2) [Rule 32 Subrule (2) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] Unless the parties agree otherwise, costs of the proceeding are to be paid by the party discontinuing the proceeding.
(1) The Court, on giving reasonable notice to the claimant, is to dismiss an action if –(a) [Rule 33 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] the claim has not been served on each other party within –(i) one year after the claim was filed; or(ii) the time specified in an order under rule 26(2) ; or(b) [Rule 33 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] within 21 days after the date of 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.
[Rule 34 Substituted by S.R. 2003, No. 119, Applied:03 Oct 2003](1) The Court may –(a) join or sever actions; or(b) list separate actions for hearing at the same time or consecutively.(2) If a proceeding involves 2 causes of action of which one is a minor civil claim and the other is another civil claim, the Court may determine the appropriate procedures to apply in order to achieve a timely and just disposal of the proceedings.
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.
[Rule 36 Amended by S.R. 2013, No. 69, Applied:04 Sep 2013] In the course of any 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
[Rule 37 Amended by S.R. 2013, No. 69, Applied:04 Sep 2013] In the course of any 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
[Rule 39 Amended by S.R. 2013, No. 69, Applied:04 Sep 2013] 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 proceeding:(a) a claim;(b) an injunction;(c) an application;(d) an affidavit or other document in support of an application.
(1) [Rule 40 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] An originating process 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) [Rule 40 Subrule (1) amended by No. 42 of 2001, Sched. 2, Applied:15 Jul 2001] in any other manner permitted by the Corporations Act;(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.
40A. Service by registered post
[Rule 40A Inserted by S.R. 2003, No. 17, Applied:09 Apr 2003] If a document is served by registered post, the following are to be filed with the affidavit of service:(a) a registered mail posting receipt bearing the serial number referred to in the affidavit as being connected with the document;(b) a delivery receipt signed by the person who took delivery of the document.
[Rule 40B Inserted by S.R. 2003, No. 17, Applied:09 Apr 2003] If a party appearing in person changes his or her address, the party must notify the Registrar of the new address.
(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) [Rule 44 Subrule (1) amended by S.R. 2003, No. 17, Applied:09 Apr 2003] Subject to these rules and any order of the Court, the practice, form and content of pleadings are to comply with the Supreme Court Rules 2000 .(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) [Rule 48 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] file a defence in an approved form 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.
[Rule 50 Substituted by S.R. 2003, No. 17, Applied:09 Apr 2003](1) A defendant intending to file a counterclaim or set-off may do so only –(a) [Rule 50 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] in an approved form; and(b) at the same time the defence is filed, unless the Court grants leave under subrule (2) .(2) The Court may grant leave to file a counterclaim or set-off after a defence is filed if the justice of the case so requires.
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) [Rule 52 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] A defendant may claim indemnity or contribution from another person by filing a claim against a third party in an approved form.(2) A third party claim is to be –(a) [Rule 52 Subrule (2) amended by S.R. 2003, No. 17, Applied:09 Apr 2003] filed at the same time the defence is filed, unless the Court grants leave under subrule (2A) ; and(b) served by the defendant, together with a copy of the claim that commenced the action, on all other parties.(2A) [Rule 52 Subrule (2A) inserted by S.R. 2003, No. 17, Applied:09 Apr 2003] The Court may grant leave to file a third party claim after a defence is filed if the justice of the case so requires.(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) [Rule 61 Subrule (2) amended by S.R. 2009, No. 78, Applied:08 Jul 2009] In an order made under subrule (1), the Court may order that the costs of the application be paid on a solicitor and client basis.
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) [Rule 63 Amended by S.R. 2009, No. 78, Applied:08 Jul 2009] a member of the law practice of the practitioner, legal practitioner or agent; or(d) [Rule 63 Amended by S.R. 2009, No. 78, Applied:08 Jul 2009] a practitioner, legal practitioner or clerk employed by the practitioner, legal practitioner, agent or law practice; 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 - Interlocutory applications
(1) [Rule 70 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] The Court, on the application of a party in a proceeding that has commenced, 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) [Rule 71 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] Unless the Court orders otherwise or these rules provide otherwise, an interlocutory application for an order is to be –(a) [Rule 71 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] in an approved form; 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) [Rule 71 Subrule (2) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] On the filing of an interlocutory application, a registrar is to fix a date, time and place for the hearing of the application.
(1) [Rule 72 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] An interlocutory 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) [Rule 72 Subrule (2) omitted by S.R. 2013, No. 69, Applied:04 Sep 2013] . . . . . . . .
73. Other means of making application
[Rule 73 Amended by S.R. 2013, No. 69, Applied:04 Sep 2013] The Court may direct, if proper cause is established, that a party may make an interlocutory application as follows:(a) orally;(b) in the absence of any other party;(c) with or without notice to any other party.
(1) [Rule 74 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] Unless the Court orders otherwise, an interlocutory application is to be heard in open court.(2) [Rule 74 Subrule (2) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] With the leave of the Court, a person may appear by telephone or video link at the hearing of an interlocutory application.(3) [Rule 74 Subrule (3) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] The hearing of an interlocutory application may be adjourned –(a) on no more than 2 occasions; and(b) to a fixed date only.(4) [Rule 74 Subrule (4) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] At the hearing of an interlocutory application, a fact may be proved by affidavit.
75. Non-attendance on applications
[Rule 75 Amended by S.R. 2013, No. 69, Applied:04 Sep 2013] If a party fails to attend within 15 minutes after the time fixed for the hearing of an interlocutory 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) [Rule 77 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] A formal order of the Court is to be in an approved form.(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) [Rule 78 Subrule (2) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] a practice direction; or(c) [Rule 78 Subrule (2) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] in the course of proceedings to which an originating application relates.(3) [Rule 78 Subrule (3) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] An order under subrule (1) is to be in an approved form.
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 proceeding
(1) [Rule 80 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] In the course of a proceeding, any or all of the following may be held:(a) [Rule 80 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] a hearing at which the parties are issued with directions relating to the course of the proceeding;(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) [Rule 80 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] a conference at which a proceeding 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.(3) [Rule 80 Subrule (3) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] [Rule 80 Subrule (3) inserted by S.R. 2003, No. 17, Applied:09 Apr 2003] A party to a proceeding must attend a conciliation conference of which he or she has been notified, unless the conciliator is satisfied that there are sufficient reasons for the party's non-attendance.
80A. Appointment of conciliators
[Rule 80A Inserted by S.R. 2000, No. 195, Applied:15 Nov 2000](1) For the purpose of this Part, the Chief Magistrate may appoint one or more persons as a conciliator.(2) An appointment under subrule (1) is subject to any terms and conditions the Chief Magistrate determines.
(1) [Rule 81 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] The Court may direct a registrar to serve a notice in an approved form 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) [Rule 84 Amended by S.R. 2013, No. 69, Applied:04 Sep 2013] in an approved form.
85. Orders at conference or hearing
[Rule 85 Substituted by S.R. 2000, No. 195, Applied:15 Nov 2000](1) At a directions hearing or listing conference, the Court may make any order or do anything that it is empowered to make or do under these rules.(2) At a conciliation conference or mediation conference, a conciliator may make any order or do anything that the Court is empowered to make or do under these rules.
[Rule 85A Inserted by S.R. 2013, No. 69, Applied:04 Sep 2013](1) This rule applies only to minor civil claims.(2) At any time, on notice to the parties, a registrar may make interlocutory orders relating to –(a) amendment of pleadings; and(b) filing of pleadings; and(c) orders for discovery; and(d) any other matter specified in a practice direction.
86. Confidentiality of offers and admissions
[Rule 86 Amended by S.R. 2013, No. 69, Applied:04 Sep 2013] 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 proceeding until after final judgment.
(1) The following matters are to be considered at a conciliation conference:(a) [Rule 87 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] settlement or compromise of the proceeding;(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) [Rule 87 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] any other matter that may facilitate the orderly and expeditious disposition of the proceeding.(2) The Court conducting a conciliation conference may –(a) require the disclosure and consideration of any offer of settlement; and(b) [Rule 87 Subrule (2) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] give directions as to the subsequent course of the proceeding.
88. Adjournment of conciliation conference
[Rule 88 Amended by S.R. 2003, No. 17, Applied:09 Apr 2003] Except in exceptional circumstances, 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.
[Rule 88A Inserted by S.R. 2003, No. 119, Applied:03 Oct 2003](1) A registrar may, by written instrument, delegate to an officer of the Magistrates Court of which he or she is district registrar or deputy district registrar the performance of any functions and the exercise of any powers necessary for that officer to conduct a directions hearing, conciliation conference, mediation conference or listing conference.(2) A registrar may, by written instrument, vary, or wholly or partially revoke, a delegation under this rule.(3) Notwithstanding the repeal of the Magistrates Court (Small Claims Division) Act 1989 , effected by the Magistrates Court (Minor Civil Claims) Act 2003 , any delegation in force under that Act immediately before the commencement of this rule continues in full force and effect as if made under this rule.
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) [Rule 89 Subrule (3) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] The offer may relate to liability, quantum, matters in issue in the proceeding 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) [Rule 89 Subrule (5) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] the offer is taken to refer only to the sum of money claimed in the proceeding; 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) [Rule 93 Subrule (2) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] the sum offered referable to the sum of money claimed in the proceeding; and(b) the sum offered for costs.(3) If the notice does not comply with subrule (2) –(a) [Rule 93 Subrule (3) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] the payment is taken to refer only to the sum of money claimed in the proceeding; 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) [Rule 95 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] 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 proceeding.(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) [Rule 96 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] A payment into Court is not to be communicated before final judgment to the magistrate hearing the trial of the proceeding.(2) [Rule 96 Subrule (2) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] The existence of an offer of compromise is not to be communicated before final judgment to the magistrate hearing the trial of the proceeding.
PART 6 - Trial
(1) [Rule 97 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] The Court, at any conference or hearing held under Part 4 , may fix the date, time and place for the trial of the proceeding.(2) [Rule 97 Subrule (2) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] A registrar, at the direction of the Court, is to issue a notice of trial in an approved form 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.(1A) [Rule 99 Subrule (1A) inserted by S.R. 2003, No. 17, Applied:09 Apr 2003] The Court may grant leave for a witness to appear by audio or audio visual link at a trial.(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.(3A) [Rule 99 Subrule (3A) inserted by S.R. 2008, No. 122, Applied:08 Oct 2008] Subject to section 31AC of the Magistrates Court (Civil Division) Act 1992 , the Court may, on any terms and conditions it considers appropriate, allow a written statement or report by a witness to be tendered or treated as evidence in chief of that witness.(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) [Rule 99 Subrule (5) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] in writing, in an approved form.
(1) [Rule 100 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] A party may apply to the Court for the expedited hearing of a proceeding if the outcome of that proceeding 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) [Rule 102 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] A party may file a summons in an approved form 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) [Rule 105 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] A party intending to rely on the opinion of any expert at the trial of a proceeding 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) [Rule 114 Subrule (4) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] A consent judgment is to be in an approved form.
(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) [Rule 116 Subrule (2) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] A claimant is to enter default judgment by filing a document in an approved form 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.(4) [Rule 116 Subrule (4) inserted by S.R. 2003, No. 17, Applied:09 Apr 2003] The registrar may refuse the entry of a default judgment if he or she is not satisfied that the claim has been served on all relevant parties.
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) [Rule 117 Subrule (1) amended by S.R. 2014, No. 42, Applied:12 Mar 2014] in the case of repairs or loss, from the date of filing the claim to the date of judgment; and(d) [Rule 117 Subrule (1) amended by S.R. 2014, No. 42, Applied:12 Mar 2014] costs in accordance with item 14 of Part 1 of Schedule 1 .(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) [Rule 119 Subrule (2) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] a notice of hearing in an approved form; 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.
119A. Orders about payment of judgment debts
[Rule 119A Inserted by S.R. 2013, No. 69, Applied:04 Sep 2013](1) In this rule –judgment creditor means a person entitled to enforce a judgment or order for the payment of money to a person;judgment debtor means a person required by a judgment or order to pay money to a judgment creditor.(2) The Court may order a judgment debtor to pay the judgment debt –(a) within a period specified in the order; or(b) by instalments that are of the amounts, and are payable within the periods, specified in the order.(3) The Court may make an order under subrule (2) on its own motion or on the application of a judgment creditor or judgment debtor.(4) The Court may not make an order under subrule (2) that requires a judgment debtor to pay within a period an amount that constitutes all or part of the judgment debt if the Court is of the opinion, on the evidence before it, that requiring payment of that amount within the period will impose unreasonable hardship on the judgment debtor.(5) In determining whether requiring payment of an amount within a period will impose unreasonable hardship on the judgment debtor, the Court is to have regard to any evidence before the Court as to –(a) the judgment debtor's means of satisfying the judgment debt; and(b) where the judgment debtor is a natural person, the judgment debtor's reasonable living expenses; and(c) any other debts for which the judgment debtor is liable.(6) The Court may, on the application of a judgment creditor or judgment debtor, vary, suspend or substitute an order made under subrule (2) in relation to the judgment debtor.
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 and execution of enforcement process
[Rule 122 Substituted by S.R. 2013, No. 69, Applied:04 Sep 2013] Except as otherwise provided in these rules, an enforcement process is to be served or executed 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 of debts[Division 2 of Part 8 Substituted by S.R. 2003, No. 17, Applied:09 Apr 2003]
125. Interpretation and application of Division 2
[Rule 125 Substituted by S.R. 2003, No. 17, Applied:09 Apr 2003](1) In this Division – [Rule 125 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013]garnishee means a person from whom a judgment creditor claims that a debt is due or accruing to the judgment debtor on the day an application for a provisional garnishee order is made;judgment includes an order;judgment creditor means a person entitled to enforce a judgment for the payment of money other than a judgment for the payment of money into Court;judgment debtor means a person required by a judgment to pay money other than into Court.(2) This Division does not apply to debts that are earnings within the meaning of Division 2A .(3) Subject to subrule (4) , this Division applies to and binds the Crown.(4) If a debt owing or accruing to the judgment debtor by or from the Crown is recoverable from an officer, servant or agent of the Crown, the garnishee proceedings are to be taken against the officer, servant or agent.
[Rule 126 Substituted by S.R. 2003, No. 17, Applied:09 Apr 2003](1) A debt or periodical payment owing by, or accruing from, a firm carrying on business in Tasmania may be attached under this Division notwithstanding that one or more members of the firm may reside out of the jurisdiction.(2) A provisional garnishee order is to be served on a person having the control or management of a partnership business, or a member of a firm, within the jurisdiction.
127. Provisional garnishee order
[Rule 127 Substituted by S.R. 2003, No. 17, Applied:09 Apr 2003](1) On the application in writing of a judgment creditor accompanied by an affidavit in accordance with the approved form, a registrar, without requiring any attendance, may make a provisional order that –(a) all debts owing or accruing from the garnishee to the judgment debtor be attached to satisfy the judgment and the costs of the garnishee proceedings; and(b) the garnishee hold any such debt due to the judgment debtor, or as much of that debt as is sufficient to satisfy the judgment and those costs, until the provisional order is made final or discharged.(2) An order under subrule (1) is to be in accordance with the approved form.(3) The costs of the garnishee proceedings are as provided for in item 4 in the table in Part 3 of Schedule 1 .
128. Service of provisional order
[Rule 128 Substituted by S.R. 2003, No. 17, Applied:09 Apr 2003](1) A provisional order is to be served on the garnishee and the judgment debtor as soon as possible after it is made.(2) Service on the judgment debtor may be effected –(a) at the address for service, if the judgment debtor has given one; or(b) at the judgment debtor's usual residence or place of employment or business; or(c) in any other manner as a magistrate or registrar directs.(2A) [Rule 128 Subrule (2A) inserted by S.R. 2013, No. 69, Applied:04 Sep 2013] A provisional order may be served on the garnishee and the judgment debtor by any person.(3) Service of a provisional order binds the debts due or accruing to a judgment debtor in the garnishee's hands.
[Rule 129 Substituted by S.R. 2003, No. 17, Applied:09 Apr 2003](1) If, after the expiration of 21 days after service of a provisional order on the garnishee and the judgment debtor, neither disputes the debt claimed to be due or accruing by filing a notice in the Court disputing the liability, the Court or a registrar, on proof of service in accordance with rule 43 and without requiring any attendance, may order –(a) that the provisional order be made final; and(b) if the garnishee has not paid to the judgment creditor the amount bound by the provisional order, that execution issue for that amount and those costs.(2) If, within 21 days after service of the provisional order on the garnishee and the judgment debtor, either files a notice disputing the garnishee's liability, the dispute is to be determined by a magistrate.(3) The registrar is to cause to be served on the garnishee, the judgment creditor and the judgment debtor notice of the hearing of the dispute.(4) For the purposes of determining the dispute, the magistrate may make any order as to how an issue of fact or question necessary for determining the liability of the garnishee is to be tried.(5) If the garnishee disputes liability on the ground that the debt sought to be attached belongs to a third person, or that a third person has a lien or charge on it, a magistrate may –(a) order that the third person be given notice to appear and state the nature and particulars of the claim; and(b) make any other order as to how the claim of that third person is to be tried.(6) On the determination of a dispute, a magistrate may –(a) make a final order; or(b) discharge the provisional order; or(c) make any other order as is appropriate.(7) A final order is to be in accordance with the approved form.
[Rule 129A Inserted by S.R. 2003, No. 17, Applied:09 Apr 2003] [Rule 129A Substituted by S.R. 2013, No. 69, Applied:04 Sep 2013](1) As soon as possible after a final order is made, it is to be served on the garnishee.(2) A final order may be served on the garnishee and the judgment debtor by any person.
129B. Service of order discharging provisional order
[Rule 129B Inserted by S.R. 2003, No. 17, Applied:09 Apr 2003] An order discharging a provisional order is to be served on the garnishee and the judgment debtor as soon as possible after it is made.
[Rule 129C Inserted by S.R. 2003, No. 17, Applied:09 Apr 2003] Payment made by, or execution levied on, the garnishee under this Division is a valid discharge to the garnishee as against the judgment debtor to the extent of the amount paid or levied, even though the judgment afterwards may be set aside or the provisional garnishee order discharged.
[Rule 129D Inserted by S.R. 2003, No. 17, Applied:09 Apr 2003](1) Except where specific provision is made, the costs of any proceedings under this Division are to be in the discretion of a magistrate.(2) Unless otherwise directed, any costs of the garnishee proceedings to which a judgment creditor is entitled are to be retained out of the money recovered by the judgment creditor under the garnishee order in priority to the amount of the money due under the judgment.
[Rule 129E Inserted by S.R. 2003, No. 17, Applied:09 Apr 2003] Where 2 or more provisional orders in respect of a debt have been served on a garnishee –(a) those orders have priority according to the order in which they were served; and(b) the order which is the first to be served on the garnishee is to be satisfied in full before payment is made in order to satisfy any order which is served later.
Division 2A - Attachment of wages and salaries[Division 2A of Part 8 Inserted by S.R. 2003, No. 17, Applied:09 Apr 2003]
129F. Interpretation and application of Division 2A
[Rule 129F Inserted by S.R. 2003, No. 17, Applied:09 Apr 2003](1) In this Division –earnings, in relation to a judgment debtor, means any amount payable to the judgment debtor –(a) by way of wages or salary or any other emolument payable in addition to wages or salary; or(b) by way of pension in the form of –(i) an annuity in respect of past services, whether or not the services were rendered to the person paying the annuity; and(ii) periodical payments in respect of, or by way of, compensation for the loss, abolition or relinquishment, or any diminution in the emoluments, of any office; or(c) by way of any other payment payable periodically, other than a pension or benefit or an allowance payable to the judgment debtor under any law of the Commonwealth;judgment includes an order;judgment creditor means a person entitled to enforce a judgment for the payment of money other than a judgment for the payment of money into Court;judgment debtor means a person required by a judgment to pay money other than into Court;net earnings, in relation to a payday, means the amount of earnings due to the judgment debtor less any usual deductions made by the garnishee in respect of the following:(a) income tax instalments required to be deducted from those earnings under Division 2 of Part VI of the Income Tax Assessment Act 1936 of the Commonwealth;(b) premiums to a medical or hospital benefits fund;(c) superannuation contributions due and payable;(d) periodical payments due and payable by the judgment debtor to the garnishee;(e) other attachment orders made by any court having jurisdiction in the State, according to their priority;payday means an occasion on which earnings to which a garnishee order relates become payable;prescribed amount means 20% of net earnings.(2) Subject to subrule (3) , this Division applies to and binds the Crown.(3) If earnings payable to the judgment debtor by or from the Crown are recoverable from an officer, servant or agent of the Crown, the garnishee proceedings are to be taken against that officer, servant or agent.
129G. Provisional garnishee order for attachment of earnings
[Rule 129G Inserted by S.R. 2003, No. 17, Applied:09 Apr 2003](1) On the application of a judgment creditor accompanied by an affidavit in accordance with the approved form, the registrar, without requiring any attendance, may make a provisional order that –(a) on each payday the garnishee deduct from the earnings of the judgment debtor the prescribed amount until the judgment and the costs of the garnishee proceedings have been paid or satisfied; and(b) the garnishee hold every sum so deducted for the judgment creditor until the provisional order is made final or discharged.(2) An order under subrule (1) is to be in accordance with the approved form.(3) An order may be made under subrule (1) even though –(a) at the time there are no earnings due or owing by the garnishee to the judgment debtor; and(b) the amount of the earnings is uncertain or is dependent on a contingency.(4) The costs of the garnishee proceedings are as provided for by item 4 in the table in Part 3 of Schedule 1 .
129H. Service of provisional garnishee order
[Rule 129H Inserted by S.R. 2003, No. 17, Applied:09 Apr 2003](1) As soon as possible after a provisional order is made, it is to be served on the garnishee and on the judgment debtor.(2) Service on the judgment debtor may be effected –(a) at the address for service, if the judgment debtor has given one; or(b) at the judgment debtor's usual residence or place of employment or business; or(c) in any other manner as a magistrate or registrar directs.(2A) [Rule 129H Subrule (2A) inserted by S.R. 2013, No. 69, Applied:04 Sep 2013] A provisional order may be served on the garnishee and the judgment debtor by any person.(3) Service of a provisional order binds the earnings of the judgment debtor as and when they are earned or become due and owing in the hands of the garnishee.
[Rule 129I Inserted by S.R. 2003, No. 17, Applied:09 Apr 2003](1) On the expiration of 21 days after service of the provisional order on the garnishee and judgment debtor and on proof of service, the registrar, without requiring any attendance, may order that a provisional order be made final if –(a) neither the garnishee nor the judgment debtor by filing a notice in the Court disputes that there are earnings payable by the garnishee to the judgment debtor; and(b) the judgment debtor does not file a notice of objection claiming a reduction in the prescribed amount and accompanied by a full statement of the financial position of the judgment debtor verified on oath or by statutory declaration.(2) A registrar may order execution to issue in default of the garnishee paying to the judgment creditor the amounts deducted in accordance with the provisional order or the amounts deducted in accordance with the final order.(3) If, within 21 days after service of the provisional order on the garnishee and the judgment debtor, either files a notice disputing that earnings are payable to the judgment debtor, the dispute is to be determined by a magistrate.(4) If, within 21 days after service of the provisional order on the judgment debtor, the judgment debtor files a notice and statement in accordance with subrule (1)(b) , the matter is to be determined by a magistrate.(4A) [Rule 129I Subrule (4A) inserted by S.R. 2013, No. 69, Applied:04 Sep 2013] A judgment debtor may, at any time after a final order is made, apply to the Court for a variation of the final order on the grounds that the final order is causing severe and unusual hardship due to a significant change in the personal circumstances of the judgment debtor.(5) Rule 129(3) and (4) applies to any determination under subrule (3) or (4) .(6) On the determination of a matter under subrule (3) or (4) , a magistrate may –(a) make the order final; or(b) vary the prescribed amount and make the order final subject to the variation.(7) A final order is to be in accordance with the approved form.
129J. Service of final garnishee order
[Rule 129J Inserted by S.R. 2003, No. 17, Applied:09 Apr 2003] [Rule 129J Substituted by S.R. 2013, No. 69, Applied:04 Sep 2013](1) As soon as possible after a final order, or a variation of a final order, is made, the final order, or the variation of the final order, is to be served on the garnishee.(2) A final order, or a variation of a final order, may be served on the garnishee and the judgment debtor by any person.
129K. Service of order discharging provisional garnishee order
[Rule 129K Inserted by S.R. 2003, No. 17, Applied:09 Apr 2003] As soon as possible after an order discharging a provisional order is made, it is to be served on the garnishee and the judgment debtor.
[Rule 129L Inserted by S.R. 2003, No. 17, Applied:09 Apr 2003] Payment made by, or execution levied on, the garnishee under this Division is a valid discharge to the garnishee as against the judgment debtor to the extent of the amount paid or levied, even though the judgment may afterwards be set aside or the provisional garnishee order discharged.
129M. Costs of garnishee proceedings
[Rule 129M Inserted by S.R. 2003, No. 17, Applied:09 Apr 2003] Rule 129D applies to proceedings under this Division.
129N. Priority of garnishee orders
[Rule 129N Inserted by S.R. 2003, No. 17, Applied:09 Apr 2003] If 2 or more provisional orders in respect of a judgment debtor have been served on a garnishee, those orders have priority according to the order in which they were served, subject to the following:(a) [Rule 129N Amended by S.R. 2013, No. 69, Applied:04 Sep 2013] if 2 or more orders are made on the same day, each order has the same priority and the garnishee is to deduct one prescribed amount only and distribute that amount equally to each relevant judgment creditor;(b) in any other case, the garnishee is to comply with any later order as if the net earnings to which that order relates were the residue of the debtor's earnings after the deduction of the prescribed amount under any earlier order.
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) [Rule 130 Subrule (2) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] A warrant is to be in an approved form 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) [Rule 135 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] 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 an approved form.(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) [Rule 138 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] Unless the Court orders otherwise, a successful party in a proceeding 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) [Rule 138 Subrule (3) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] If judgment is in respect of proceedings other than an action 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) [Rule 138 Subrule (7) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] If a scale of costs in respect of a particular proceeding 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) [Rule 138 Subrule (8) amended by S.R. 2009, No. 78, Applied:08 Jul 2009] If the Court considers proper cause exists, the Court may order that a successful party is entitled to costs on a solicitor and client basis.
138A. Entitlement to disbursements
[Rule 138.A Inserted by S.R. 2013, No. 69, Applied:04 Sep 2013] Unless the Court orders otherwise, a successful party in a proceeding is entitled on judgment, in relation to a matter specified in items 3, 4, 5 or 6 of the table in Schedule 2 , to the disbursements specified in that Schedule in relation to the matter.[Rule 138A Inserted by S.R. 2010, No. 23, Applied:17 Mar 2010] [Rule 138A Rescinded by S.R. 2014, No. 42, Applied:12 Mar 2014] . . . . . . . .
(1) [Rule 139 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] The Court, on the application of a party, may order that a proceeding is a complex proceeding.(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 .
[Rule 140 Amended by S.R. 2013, No. 69, Applied:04 Sep 2013] If the costs of any proceedings are reserved,costs are to be determined at the conclusion of the proceeding, 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) [Rule 141 Subrule (2) substituted by S.R. 2003, No. 17, Applied:09 Apr 2003] Unless the Court orders otherwise, 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 –(a) 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(b) following the expiration of that period, the defendant is entitled to costs on the scale applicable to the amount claimed by the claimant.(3) Subrule (2) does not apply if an offer of compromise is withdrawn.
142. Cost penalty for inadequate offer
(1) [Rule 142 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] This rule applies to costs in an action where no offer of compromise is filed or payment into court made or 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) [Rule 142 Subrule (4) omitted by S.R. 2003, No. 17, Applied:09 Apr 2003] . . . . . . . .(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) [Rule 144 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] 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 a proceeding.(2) [Rule 144 Subrule (2) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] The sum of money or other security is to be held by the registrar until the proceeding is concluded.(3) The Court may order a party to give a bond or undertaking.(4) [Rule 144 Subrule (4) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] 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 proceeding.(5) [Rule 144 Subrule (5) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] The Court may make it a condition of a proceeding continuing 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
[Rule 146 Amended by S.R. 2013, No. 69, Applied:04 Sep 2013] If costs are not agreed between parties to a proceeding, a successful party may serve on an unsuccessful party a bill of costs in an approved form.
[Rule 146A Inserted by S.R. 2003, No. 17, Applied:09 Apr 2003] A bill of costs may include as a disbursement an amount referable to tax paid or to be paid under the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth and the registrar is to make such allowance as is appropriate for the impact of the GST, within the meaning of that Act, on the bill of costs.
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) [Rule 148 Subrule (1) amended by S.R. 2003, No. 17, Applied:09 Apr 2003] On the filing of a notice of objection under rule 147 , 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) [Rule 148 Subrule (2) amended by S.R. 2003, No. 17, Applied:09 Apr 2003] allow costs in respect of the assessment, including an allowance for the impact of the GST, within the meaning of the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth.(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.(1A) [Rule 149 Subrule (1A) inserted by S.R. 2003, No. 17, Applied:09 Apr 2003] If a registrar is satisfied that 21 days have passed since the bill of costs was served, the registrar may issue a certificate of assessment even though a notice of objection has not been filed.(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) [Rule 149 Subrule (3) amended by S.R. 2003, No. 17, Applied:09 Apr 2003] Pending the determination of a review under rule 150 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 or conciliator's decision
(1) [Rule 152 Subrule (1) amended by S.R. 2000, No. 195, Applied:15 Nov 2000] A person may apply to a magistrate for a review of any decision or act of a registrar or a conciliator.(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) [Rule 153 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] all books, records and documents relating to 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) [Rule 156 Subrule (1) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] Each registry is to assign a serial number to the first document in a proceeding.(2) [Rule 156 Subrule (2) amended by S.R. 2013, No. 69, Applied:04 Sep 2013] Anyother document in the proceeding 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[Schedule 1 Substituted by S.R. 2005, No. 153, Applied:01 Jan 2006] [Schedule 1 Substituted by S.R. 2010, No. 23, Applied:17 Mar 2010] [Schedule 1 Substituted by S.R. 2014, No. 42, Applied:12 Mar 2014]
Rules 25 , 117 , 127(3) , 129G(4) , 130 , 138 and 139
PART 1 - Routine proceedings[Part 1 of Schedule 1 Substituted by S.R. 2005, No. 153, Applied:01 Jan 2006] [Part 1 of Schedule 1 Substituted by S.R. 2010, No. 23, Applied:17 Mar 2010] [Part 1 of Schedule 1 Amended by S.R. 2013, No. 69, Applied:04 Sep 2013] [Part 1 of Schedule 1 Substituted by S.R. 2014, No. 42, Applied:12 Mar 2014]
Item | Not exceeding $10 000 | Exceeding $10 000 and not exceeding $20 000 | Exceeding $20 000 | 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 or originating application other than for sum of money | $580 | $580 | $580 | 3. | Routine request relating to discovery or inspection, including costs for perusal of reply | $68 | $119 | $170 | 4. | Request requiring drafting of particulars or interrogatories including costs for perusal of reply | $170 | $255 | $340 | 5. | Notice to admit facts, filed offer, payment into Court or other notice requiring particular instructions, including costs for perusal of reply | $340 | $510 | $680 | 6. | For each of the following: | (a) replying to – | (i) request under item 3 or 4 | $170 | $255 | $340 | (ii) notice under item 5 | $170 | $255 | $340 | (b) providing personal injury particulars | $170 | $255 | $340 | (c) making discovery (if required under these rules) | $170 | $255 | $340 | 7. | Preparing, filing and serving an application, including proof of service | $85 | $170 | $255 | 8. | Simple affidavit | $51 | $68 | $85 | 9. | Lengthy affidavit | $136 | $170 | $255 | 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 | $51 | $68 | $85 | 12. | Issuing and serving summons to witness - each witness | $51 | $68 | $85 | 13. | Filing default judgment, garnishee application or warrant to sell property not otherwise provided for | $51 | $51 | $51 | 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 | $102 | $102 | $102 | (b) other manner of service | $51 | $51 | $51 | 15. | Preparing bill of costs, including attendance on assessment | $289 | $300 | $340 | 16. | Attendance for inspection (any party) | $136 | $170 | $204 | 17. | Attendance at listing conference, directions hearing or routine application | $68 | $102 | $136 | 18. | Attendance at application requiring special argument or at conciliation conference | $136 | $204 | $255 | 19. | Advice on compromise or settlement for person under disability – | (a) if quantum only in dispute | $255 | $391 | $510 | (b) if quantum and liability in dispute | $340 | $510 | $680 | 20. | Attendance as counsel at trial, including fee on brief and refreshers – | (a) first day | $1 280 | $1 535 | $2 039 | (b) each subsequent day | $850 | $1 020 | $1 360 | 21. | Attendance as counsel for judgment | $85 | $85 | $85 |
PART 2 - Complex proceedings[Part 2 of Schedule 1 Amended by S.R. 2003, No. 17, Applied:09 Apr 2003] [Part 2 of Schedule 1 Substituted by S.R. 2005, No. 153, Applied:01 Jan 2006] [Part 2 of Schedule 1 Substituted by S.R. 2010, No. 23, Applied:17 Mar 2010] [Part 2 of Schedule 1 Amended by S.R. 2013, No. 69, Applied:04 Sep 2013] [Part 2 of Schedule 1 Substituted by S.R. 2014, No. 42, Applied:12 Mar 2014]
Item | Not exceeding $10 000 | Exceeding $10 000 and not exceeding $20 000 | Exceeding $20 000 | 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 or originating application other than for sum of money | $1 020 | $1 020 | $1 020 | 3. | Routine request relating to discovery or inspection, including costs for perusal of reply | $68 | $119 | $170 | 4. | Request requiring drafting of particulars or interrogatories, including costs for perusal of reply | $170 | $255 | $340 | 5. | Notice to admit facts, filed offer, payment into Court or other notice requiring particular instructions, including costs for perusal of reply | $510 | $680 | $850 | 6. | For each of the following: | (a) replying to – | (i) request under item 3 or 4 | $255 | $385 | $510 | (ii) notice under item 5 | $255 | $385 | $510 | (b) providing personal injury particulars | $255 | $385 | $510 | (c) making discovery (if required under these rules) | $255 | $385 | $510 | 7. | Preparing, filing and serving an application, including proof of service | $85 | $170 | $289 | 8. | Simple affidavit | $51 | $68 | $85 | 9. | Lengthy affidavit | $136 | $170 | $255 | 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 | $51 | $68 | $85 | 12. | Issuing and serving summons to witness - each witness | $51 | $68 | $85 | 13. | Filing default judgment, garnishee application or warrant to sell property not otherwise provided for | $51 | $51 | $51 | 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 | $102 | $102 | $102 | (b) other manner of service | $51 | $51 | $51 | 15. | Preparing bill of costs, including attendance on assessment | $289 | $300 | $340 | 16. | Attendance for inspection (any party) | $187 | $272 | $357 | 17. | Attendance at listing conference, directions hearing or routine application | $136 | $204 | $255 | 18. | Attendance at application requiring special argument or at conciliation conference | $272 | $408 | $510 | 19. | Advice on compromise or settlement for person under disability – | (a) if quantum only in dispute | $255 | $391 | $510 | (b) if quantum and liability in dispute | $340 | $510 | $680 | 20. | Attendance as counsel at trial, including fee on brief and refreshers – | (a) first day | $1 530 | $2 039 | $2 549 | (b) each subsequent day | $1 020 | $1 360 | $1 700 | 21. | Attendance as counsel for judgment | $85 | $85 | $85 |
PART 3 - Costs endorsed on process[Part 3 of Schedule 1 Substituted by S.R. 2005, No. 153, Applied:01 Jan 2006] [Part 3 of Schedule 1 Amended by S.R. 2008, No. 37, Applied:07 May 2008] [Part 3 of Schedule 1 Substituted by S.R. 2010, No. 23, Applied:17 Mar 2010] [Part 3 of Schedule 1 Substituted by S.R. 2014, No. 42, Applied:12 Mar 2014]
Item | Amount | claimed | in action | Not exceeding $1 000 | Exceeding $1 000 and not exceeding $3 000 | Exceeding $3 000 and not exceeding $5 000 | Exceeding $5 000 and not exceeding $10 000 | Exceeding $10 000 | 1. | Preparing and filing liquidated claim | $102 | $204 | $306 | $408 | $510 | 2. | Entering default judgment | $51 | $51 | $51 | $51 | $51 | 3. | Assessing damages under rule 119 | $85 | $102 | $119 | $136 | $204 | 4. | Preparing and filing warrant to sell property or garnishee application | $51 | $51 | $51 | $51 | $51 |
SCHEDULE 2 - Witness fees and disbursements[Schedule 2 Amended by No. 86 of 2000, Sched. 2, Applied:01 May 2001] [Schedule 2 Substituted by S.R. 2005, No. 153, Applied:01 Jan 2006] [Schedule 2 Substituted by S.R. 2010, No. 23, Applied:17 Mar 2010]
1. | Witness fees | (a) Professional, scientific or other expert witness (each day) | $525 or other amount ordered by the Court or determined by assessment officer | (b) Other adult person (each day) | $225 | (c) Person under 18 years of age (each day) | $75 | 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 employees within the meaning of the State Service Act 2000 | 3. | Photocopying | each page | 75 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 | $450 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.