Supreme Court (General Civil Procedure) Rules 2005

i Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 TABLE OF PROVISIONS Rule Page ORDER 1—PRELIMINARY 1 PART 1—CITATION, COMMENCEMENT AND REVOCATION 1 1.01 Title and object 1 1.02 Authorising provisions 1 1.03 Commencement and revocation 1 PART 2—APPLICATION OF RULES 2 1.04 Definitions 2 1.05 Application 2 1.06 Jurisdiction not affected 2 1.12 Order to review 2 PART 3—INTERPRETATION 3 1.13 Definitions 3 PART 4—MISCELLANEOUS 6 1.14 Exercise of power 6 1.15 Procedure wanting or in doubt 6 1.16 Act by corporation 7 1.17 Corporation a party 7 1.18 Power to act by solicitor 7 1.19 Continuation of address for service 8 ORDER 2—NON-COMPLIANCE WITH THE RULES 9 2.01 Effect of non-compliance 9 2.02 Originating process 9 2.03 Application to set aside for irregularity 9 2.04 Dispensing with compliance 10 -- 1 of 641 -- Rule Page ii ORDER 3—TIME, SITTINGS AND COURT OFFICE 11 3.01 Calculating time 11 3.02 Extension and abridgement 11 3.03 Fixing time 12 3.04 Process in vacation 12 3.05 Time for service 12 3.06 Proceedings after a year 12 3.07 Sittings and vacation 13 3.08 Office 13 3.09 Office hours 13 ORDER 4—PROCESS IN THE COURT 14 4.01 How proceeding commenced 14 4.02 Interlocutory application 14 4.03 Names of parties 14 4.04 When writ required 15 4.05 When originating motion required 15 4.06 Optional commencement by originating motion 15 4.07 Continuance as writ of proceeding by originating motion 15 4.08 Urgent case 16 ORDER 5—CONTENT, FILING AND DURATION OF ORIGINATING PROCESS 17 5.01 Definitions 17 5.02 Form of originating process 17 5.03 Appearance 17 5.04 Indorsement of claim on writ 18 5.05 Indorsement of claim on motion 18 5.06 Indorsement as to capacity 18 5.07 Address of parties 18 5.08 Place and mode of trial 19 5.09 Stay on payment of costs 20 5.10 Petition 20 5.11 Filing of originating process 20 5.12 Duration and renewal of originating process 21 ORDER 6—SERVICE 23 6.01 When personal service necessary 23 6.02 Personal service of originating process 23 6.03 How personal service effected 23 6.04 Service on particular defendants 24 6.05 Motor car death or bodily injury 25 6.06 Address for service 25 6.06.1 Solicitor changing address 26 6.07 How ordinary service effected 26 -- 2 of 641 -- Rule Page iii 6.08 Identity of person served 29 6.09 Acceptance of service by solicitor 29 6.10 Substituted service 29 6.11 Confirmation of informal service 30 6.12 Service by filing 30 6.13 Service on agent 30 6.14 Service under contract 31 6.15 Recovery of vacant land 31 6.16 Service of notice by the Court 32 6.17 Affidavit of service 32 ORDER 7—SERVICE OUT OF AUSTRALIA 33 PART 1—WHEN SERVICE OUT IS ALLOWED 33 7.01 For what claims 33 7.02 Indorsement on originating process 35 7.03 Mode of service out of Australia 36 7.04 Leave to proceed where no appearance 36 7.05 Stay, setting aside service etc. 37 7.06 Service of other process by leave 37 7.07 Service of counterclaim or third party notice 38 7.08 Application for leave 38 PART 2—SERVICE IN FOREIGN COUNTRY 39 7.09 Application 39 7.10 Documents required 39 7.11 Translation 40 7.12 Request and undertaking 40 7.13 Procedure on lodgment and filing 41 7.14 Evidence of service 41 7.15 Order for payment of expenses 41 ORDER 8—APPEARANCE 43 8.01 Application 43 8.02 Appearance before taking step 43 8.03 Who to file appearance 43 8.04 Time for appearance 43 8.05 Mode of filing appearance 44 8.06 Address for service of defendant 44 8.07 Late appearance 45 8.08 Conditional appearance 45 8.09 Setting aside writ or originating motion 46 -- 3 of 641 -- Rule Page iv ORDER 9—JOINDER OF CLAIMS AND PARTIES 47 9.01 Joinder of claims 47 9.02 Permissive joinder of parties 47 9.03 Joinder of necessary parties 47 9.04 Joinder inconvenient 48 9.05 Effect of misjoinder or non-joinder of party 49 9.06 Addition, removal, substitution of party 49 9.07 Procedure for addition of party 50 9.08 Defendant dead at commencement of proceeding 50 9.09 Change of party on death, bankruptcy 52 9.10 Failure to proceed after death of party 53 9.11 Amendment of proceedings after change of party 54 9.12 Consolidation or trial together 55 9.13 Conduct of proceeding 56 ORDER 10—COUNTERCLAIM 57 10.01 Application of Order 57 10.02 When counterclaim allowed 57 10.03 Counterclaim against plaintiff and another person 57 10.04 Procedure after counterclaim against another person 57 10.05 Trial of counterclaim 59 10.06 Counterclaim inconvenient 59 10.07 Stay of claim 59 10.08 Counterclaim on stay etc., of original proceeding 60 10.09 Judgment for balance 60 ORDER 11—THIRD PARTY PROCEDURE 61 11.01 Claim by third party notice 61 11.02 Statement of claim on third party notice 61 11.03 Time for appearance 61 11.04 Filing and service of third party notice 62 11.05 Time for third party notice 62 11.06 Leave to file third party notice 63 11.07 Other requirements for service 63 11.08 Appearance by third party 64 11.09 Defence of third party 64 11.10 Counterclaim by third party 65 11.11 Default by third party 65 11.12 Discovery and trial 66 11.13 Third party directions 67 11.14 Judgment between defendant and third party 68 11.15 Claim against another party 68 11.16 Fourth and subsequent parties 69 11.17 Counterclaim 69 -- 4 of 641 -- Rule Page v ORDER 12—INTERPLEADER 70 12.01 Definitions 70 12.02 Stakeholder's interpleader 70 12.03 Sheriff's interpleader 71 12.04 Sheriff's summons to state claim 71 12.05 Notice to execution creditor 72 12.06 Admission of claim 72 12.07 Interpleader summons 73 12.08 Powers of Court 74 12.09 Default by claimant 75 12.10 Neutrality of applicant 75 12.11 Order in several proceedings 76 12.12 Trial of interpleader question 76 ORDER 13—PLEADINGS 77 13.01 Formal requirements 77 13.02 Content of pleading 77 13.03 Document or conversation 78 13.04 Fact presumed true 78 13.05 Condition precedent 78 13.06 Implied contract or relation 78 13.07 Matter which must be pleaded 78 13.08 Subsequent fact 79 13.09 Inconsistent pleading 79 13.10 Particulars of pleading 80 13.11 Order for particulars 81 13.12 Admission and denials 81 13.13 Denial by joinder of issue 82 13.14 Money claim as defence 83 13.15 Counterclaim 83 ORDER 14—SERVICE OF PLEADINGS 84 14.01 Statement of claim indorsed on writ 84 14.02 Statement of claim not indorsed on writ 84 14.03 Alteration of claim as indorsed on writ 84 14.04 Service of defence 85 14.05 Reply 85 14.06 Pleading after reply 85 14.07 Defence to counterclaim 85 14.08 Close of pleadings 86 14.09 Order as to pleadings 86 14.10 Filing of pleadings 86 -- 5 of 641 -- Rule Page vi ORDER 15—PERSON UNDER DISABILITY 87 15.01 Definitions 87 15.02 Litigation guardian of person under disability 87 15.03 Appointment of litigation guardian 87 15.04 No appearance by person under disability 89 15.05 Application to discharge or vary certain orders 89 15.06 Pleading admission by person under disability 89 15.07 Discovery 90 15.08 Compromise of claim by a person under disability 90 15.09 Execution against money in court 91 15.10 Counterclaim and claim by third party notice 92 ORDER 16—EXECUTORS, ADMINISTRATORS AND TRUSTEES 93 16.01 Representation of unascertained persons 93 16.02 Beneficiaries 94 16.03 Deceased person 95 ORDER 17—PARTNERS AND SOLE PROPRIETORS 96 17.01 Partners 96 17.02 Disclosure of partners 96 17.03 Service of originating process 97 17.04 Appearance by partners 98 17.05 No appearance except by partners 98 17.06 Appearance under objection of person sued as partner 98 17.07 Enforcement of judgment 99 17.08 Enforcement between partners 100 17.09 Attachment of debts 100 17.10 Person using the business name 101 17.11 Charge on partner's interest 101 ORDER 18—REPRESENTATIVE PROCEEDING 103 18.01 Application 103 18.02 Proceeding by or against representative 103 18.03 Order for representation by defendant 103 18.04 Effect of judgment 103 ORDER 18A—GROUP PROCEEDING 105 18A.01 Application 105 18A.02 Consent to be group member 105 18A.03 Commencement of group proceeding 105 18A.04 Opting out 105 18A.05 Order involving notice 105 -- 6 of 641 -- Rule Page vii ORDER 19—NOTICE OF CONSTITUTIONAL MATTER 107 19.01 Definitions 107 19.02 Notice 107 19.03 Filing and service 107 ORDER 20—CHANGE OF SOLICITOR 109 20.01 Notice of change 109 20.02 Party appointing solicitor 109 20.03 Solicitor ceasing to act 109 20.04 Removal of solicitor from record 110 20.05 Address for service 111 20.06 Death, retirement etc., of Victorian Government Solicitor etc. 112 ORDER 21—JUDGMENT IN DEFAULT OF APPEARANCE OR PLEADING 113 21.01 Default of appearance 113 21.02 Default of defence 113 21.03 Judgment for recovery of debt, damages or property 114 21.04 Judgment other than for recovery of debt, damages or property 116 21.05 Proceeding continued against other defendants 116 21.06 Default of defence to counterclaim 116 21.07 Setting aside judgment 116 ORDER 22—SUMMARY JUDGMENT FOR PLAINTIFF 117 22.01 Scope of Order 117 22.02 Application for judgment 117 22.03 Affidavit in support 117 22.04 Defendant to show cause 118 22.05 Affidavit in reply 119 22.06 Hearing of application 119 22.07 Cross-examination on affidavit 120 22.08 Judgment on counterclaim 120 22.09 Assessment of damages 120 22.10 Judgment where debt amount unascertained 121 22.11 Directions 121 22.12 Continuing for other claim or against other defendant 121 22.13 Judgment for delivery up of chattel 122 22.14 Relief against forfeiture 122 22.15 Setting aside judgment 122 -- 7 of 641 -- Rule Page viii ORDER 23—SUMMARY STAY OR DISMISSAL OF CLAIM AND STRIKING OUT PLEADING 123 23.01 Stay or judgment in proceeding 123 23.02 Striking out pleading 124 23.03 Summary judgment for defendant 124 23.04 Affidavit evidence 124 23.05 Declaratory judgment 125 ORDER 24—JUDGMENT ON FAILURE TO PROSECUTE OR OBEY ORDER FOR PARTICULARS OR DISCOVERY 126 24.01 Judgment on dismissal 126 24.02 Failure to obey order 126 24.03 Stay on non-payment of costs 127 24.04 Counterclaim and third party claim 127 24.05 Inherent jurisdiction 127 24.06 Setting aside judgment 128 ORDER 25—DISCONTINUANCE AND WITHDRAWAL 129 25.01 Withdrawal of appearance 129 25.02 Discontinuance or withdrawal of proceeding or claim 129 25.03 Proceeding not commenced by writ 130 25.04 Notice of discontinuance or withdrawal 130 25.05 Costs 130 25.06 Discontinuance or withdrawal no defence 131 25.07 Stay on non-payment of costs 131 ORDER 26—OFFER OF COMPROMISE 132 PART 1—INTERPRETATION 132 26.01 Definitions 132 PART 2—OFFER OF COMPROMISE 132 26.02 Application 132 26.03 Time for making, accepting etc. offer 133 26.03.1 Time for payment 134 26.04 Effect of offer 134 26.05 Disclosure of offer to Court 134 26.06 Party under disability 135 26.07 Failure to comply with accepted offer 135 26.08 Costs consequences of failure to accept 136 26.09 Multiple defendants 138 26.10 Offer to contribute 139 26.11 Transitional 139 -- 8 of 641 -- Rule Page ix PART 3—OFFER TO COMPROMISE ON APPEAL 140 26.12 Appeal to Court of Appeal 140 ORDER 27—CONTENT AND FORM OF COURT DOCUMENTS 142 27.01 Conformity with Rules 142 27.02 Heading and title of document 142 27.03 Form of document 143 27.04 Numbers 145 27.05 Copies on request 145 27.06 Prothonotary refusing to seal or accept document 145 27.07 Scandalous matter 146 ORDER 28—FILING AND SEALING OF COURT DOCUMENTS 147 28.01 How document filed 147 28.02 Proceedings commenced outside Melbourne 147 28.03 Date of filing 147 28.04 Seal of Court 148 28.05 Inspection of documents 149 28.06 Production of Court document 149 ORDER 29—DISCOVERY AND INSPECTION OF DOCUMENTS 150 29.01 Application and definition 150 29.02 Notice for discovery 150 29.03 Discovery after notice 150 29.04 Affidavit of documents 151 29.05 Order limiting discovery 152 29.06 Co-defendants and third party 152 29.07 Order for discovery 153 29.08 Order for particular discovery 153 29.09 Inspection of documents referred to in affidavit of documents 154 29.10 Inspection of documents referred to in pleadings and affidavits 155 29.11 Order for discovery 156 29.12 Direction as to documents 157 29.12.1 Default notice 157 29.13 Inspection of document by Court 158 29.14 Default on discovery 158 29.15 Continuing obligation to make discovery 159 29.16 Discovery after directions 159 -- 9 of 641 -- Rule Page x ORDER 30—INTERROGATORIES 160 30.01 Definitions 160 30.02 When interrogatories allowed 160 30.03 Statement as to who to answer 161 30.04 Filing interrogatories and time for answers 161 30.05 Source for answers to interrogatories 161 30.06 How interrogatories to be answered 163 30.07 Ground of objection to answer 163 30.08 Who to answer interrogatories 164 30.09 Failure to answer interrogatories 165 30.09.1 Default notice 165 30.10 Non-compliance with order 166 30.11 Answers as evidence 166 30.12 Interrogatories after directions 167 ORDER 31—DISCOVERY BY ORAL EXAMINATION 168 31.01 Definitions 168 31.02 When available 168 31.03 Party a corporation 169 31.04 How consent given 169 31.05 Effect of consent 169 31.06 Appointment of examiner 170 31.07 Attendance on examination 170 31.08 Party a corporation 170 31.09 Powers of examiner 171 31.10 Record of examination 171 31.11 How party to be examined 171 31.12 Procedure on objection to question 172 31.13 Order to answer question 172 31.14 Costs 173 ORDER 32—PRELIMINARY DISCOVERY AND DISCOVERY FROM NON-PARTY 174 32.01 Definitions 174 32.02 Privilege 174 32.03 Discovery to identify a defendant 174 32.04 Party an applicant 175 32.05 Discovery from prospective defendant 176 32.06 Party an applicant 176 32.07 Discovery from non-party 177 32.08 Procedure 177 32.09 Inspection of documents 178 32.10 Directions as to documents 178 32.11 Costs 178 -- 10 of 641 -- Rule Page xi ORDER 33—MEDICAL EXAMINATION AND SERVICE OF HOSPITAL AND MEDICAL REPORTS 179 33.01 Application 179 33.02 Counterclaim 179 33.03 Definitions 179 33.04 Notice for examination 181 33.05 Expenses 182 33.06 Report of examination of plaintiff 182 33.07 Service of reports by plaintiff 182 33.08 Service of reports by defendant 183 33.08.1 Other medical reports to be served 184 33.09 Opinion on liability 185 33.10 Material for Court 185 33.11 Medical report admissible 186 33.12 No evidence unless disclosed in report 187 ORDER 34—DIRECTIONS 188 34.01 Powers of Court 188 34.02 Nature of directions 188 34.03 Admissions and agreements 188 34.04 Duty to obtain directions 189 ORDER 35—ADMISSIONS 190 35.01 Definition 190 35.02 Voluntary admission of facts 190 35.03 Notice for admission of facts 190 35.04 Judgment on admissions 191 35.05 Notice for admission of documents 191 35.06 Cost of non-admission of fact or document 192 35.07 Restrictive effect of admission 192 35.08 Notice to produce documents 192 ORDER 36—AMENDMENT 194 36.01 General 194 36.02 Failure to amend within time limited 195 36.03 Amendment of pleading 195 36.04 Disallowance of pleading amendment 196 36.05 How pleading amendment made 196 36.06 Pleading to an amended pleading 197 36.07 Amendment of judgment or order 197 -- 11 of 641 -- Rule Page xii ORDER 37—INSPECTION, DETENTION AND PRESERVATION OF PROPERTY 198 37.01 Inspection, detention etc. of property 198 37.02 Inspection from prospective defendant 199 37.03 Procedure 200 37.04 Disposal of perishable property 200 37.05 Payment into Court in discharge of lien 201 37.06 Interim distribution of property or income 201 37.07 Jurisdiction of Court not affected 202 ORDER 38—INJUNCTIONS 203 38.01 When Court may grant 203 38.02 Application before trial 203 38.03 Costs and expenses of non-party 203 38.04 Ouster of office 204 ORDER 39—RECEIVERS 205 39.01 Application and definitions 205 39.02 Appointment of receiver 205 39.03 Service of order 205 39.04 Consent of receiver 205 39.05 Security by receiver 206 39.06 Remuneration of receiver 206 39.07 Receiver's accounts 206 39.08 Default by receiver 207 39.09 Directions to receivers 208 ORDER 40—EVIDENCE GENERALLY 209 40.01 Definition 209 40.02 Evidence of witness 209 40.03 Contrary direction as to evidence 209 40.04 Examination on affidavit 210 40.05 Evidence of particular facts 210 40.06 Revocation or variation of order 211 40.07 Deposition as evidence 211 40.08 Proof of Court documents 212 40.09 Evidence of consent 212 40.10 Defamation 213 40.11 Subsequent use of evidence at trial 213 40.12 Attendance and production 213 40.13 View 214 -- 12 of 641 -- Rule Page xiii ORDER 41—EVIDENCE BEFORE TRIAL 215 PART 1—EVIDENCE BY DEPOSITION 215 41.01 Order for witness examination 215 41.02 Documents for examiner 215 41.03 Appointment for examination 215 41.04 Conduct of examination 216 41.05 Examination of additional persons 216 41.06 Objection 217 41.07 Taking of depositions 218 41.08 Authentication and filing 218 41.08.1 Confidentiality of deposition 219 41.09 Report of examiner 219 41.10 Default of witness 219 41.11 Witness allowance 220 41.12 Perpetuation of testimony 220 41.13 Letter of request 220 41.14 Translation 221 41.15 Undertaking 222 41.16 Order for payment of expenses 222 PART 2—APPLICATIONS FOR TAKING EVIDENCE ABROAD UNDER PART 2 OF THE FOREIGN EVIDENCE ACT 1994 OF THE COMMONWEALTH 223 41.17 Definition 223 41.18 Application 223 41.19 How application made 223 41.20 Directions 223 41.21 Notice of application 223 ORDER 41A—APPLICATION UNDER SECTION 42E(1) OF THE EVIDENCE ACT 1958 224 41A.01 Application of Order 224 41A.02 Form of application 224 41A.03 Filing 224 41A.04 Service 224 41A.05 Duty of applicant 224 41A.06 Payment of costs 224 ORDER 42—SUBPOENAS 225 42.01 Definitions 225 42.02 Attendance by subpoena 225 42.03 Filing subpoena 226 42.04 Service 226 42.05 Conduct money 226 42.06 Production before date for attendance 227 -- 13 of 641 -- Rule Page xiv 42.07 Setting aside 227 42.08 Conduct money insufficient to meet expense and loss 227 42.08.1 Witnesses' fees and expenses 228 42.09 Production of wages records 228 42.10 Subpoena before Prothonotary 229 42.11 Subpoena for attendance before another court etc. 234 ORDER 43—AFFIDAVITS 235 43.01 Form of affidavit 235 43.02 Affidavit by illiterate or blind person 236 43.03 Content of affidavit 236 43.04 Affidavit by two or more deponents 236 43.05 Alterations 237 43.06 Annexures and exhibits 237 43.07 Time for swearing 237 43.08 Irregularity 237 43.09 Filing 238 ORDER 44—EXPERT EVIDENCE 239 44.01 Definitions 239 44.02 Application 239 44.03 Report of expert 240 44.04 Other party's report as evidence 242 44.05 No evidence unless disclosed in report 242 44.06 Conference between experts 242 ORDER 45—ORIGINATING MOTION 244 45.01 Definitions 244 45.02 Evidence by affidavit 244 45.03 Judgment where no appearance 244 45.04 Proceedings after appearance 245 45.05 Special procedure 246 ORDER 46—APPLICATIONS 248 46.01 Application 248 46.02 Application by summons 248 46.03 Notice of application 248 46.04 Form and filing of summons 248 46.05 Service 249 46.05.1 Day for hearing 249 46.06 Adjournment 250 46.07 Absence of party to summons 250 46.08 Setting aside 251 -- 14 of 641 -- Rule Page xv ORDER 47—PLACE AND MODE OF TRIAL 252 47.01 Place of trial 252 47.02 Mode of trial 252 47.03 Payment of jury fees 253 47.04 Separate trial of question 253 47.05 Judgment after determination of preliminary question 253 ORDER 48—FIXING A DATE FOR TRIAL 254 48.01 Application 254 48.02 Fixing a date 254 48.03 Notice of trial 254 48.04 Default by plaintiff 255 48.05 Subsequent interlocutory steps 255 48.06 Vacating date for trial 256 48.07 Pre-trial conferences 256 ORDER 49—TRIAL 258 49.01 Order of evidence and addresses 258 49.02 Absence of party 259 49.03 Adjournment of trial 260 49.04 Death before judgment 260 ORDER 50—REFERENCES 261 50.01 Reference to special referee 261 50.02 Directions as to procedure 261 50.03 Report on reference 262 50.04 Use of report 262 50.05 Committal 262 50.06 Remuneration of special referee 263 50.07 Reference to mediator 263 50.07.1 Mediation by Master 264 50.08 Reference to arbitration 265 ORDER 51—ASSESSMENT OF DAMAGES OR VALUE 266 51.01 Mode of assessment 266 51.02 Notice to other party 266 51.03 Procedure on assessment 266 51.04 Order for damages 266 51.05 Default judgment against some defendants 267 51.06 Continuing cause of action 267 51.07 Value of goods 267 -- 15 of 641 -- Rule Page xvi ORDER 52—ACCOUNTS AND INQUIRIES 268 52.01 Account or inquiry at any stage 268 52.02 Directions for account 268 52.03 Form and verification of account 269 52.04 Filing and service of account 269 52.05 Notice of charge, error in account 269 52.06 Allowances 270 52.07 Delay 270 52.08 Fund distribution before all entitled ascertained 270 52.09 Restrictive covenant 270 ORDER 53—SUMMARY PROCEEDING FOR RECOVERY OF LAND 271 53.01 Application 271 53.02 Originating process 271 53.03 Who to be defendant 271 53.04 Affidavit in support 272 53.05 Service 272 53.06 Occupier made a party 273 53.07 Judgment for possession 273 53.08 Warrant of possession 273 ORDER 54—ADMINISTRATION OF ESTATES AND EXECUTION OF TRUSTS 274 54.01 Definitions 274 54.02 Relief without general administration 274 54.03 Parties 275 54.04 Notice of proceeding and judgment 276 54.05 Relief in proceeding by originating motion 277 54.06 Judgment in administration proceeding 277 54.07 Conduct of sale 278 ORDER 55—SALE OF LAND BY ORDER OF COURT 279 55.01 Definition 279 55.02 Power to order sale 279 55.03 Notice of application 279 55.04 Manner of sale 280 55.05 Certifying result of sale 280 55.06 Mortgage, exchange or partition 281 ORDER 56—JUDICIAL REVIEW 282 56.01 Judgment or order instead of writ 282 56.02 Time for commencement of proceeding 283 -- 16 of 641 -- Rule Page xvii ORDER 57—HABEAS CORPUS 284 57.01 Definition 284 57.02 Application for writ 284 57.03 Order on application 285 57.04 Further application for writ 285 57.05 Service 286 57.06 Disobedience 286 57.07 Return to the writ 286 57.08 Person detained before Court 287 57.09 Other habeas corpus 287 57.10 Departing debtor 287 ORDER 58—APPEALS FROM INFERIOR JURISDICTIONS 288 PART 1—APPEALS FROM THE COUNTY COURT 288 58.01 Procedure 288 PART 2—APPEALS FROM A MASTER OF THE COUNTY COURT 288 58.02 Appeal from Master by leave 288 58.03 Application for leave 289 58.04 Hearing of appeal 290 58.05 Stay 290 PART 3—APPEALS ON A QUESTION OF LAW 290 58.06 Application of Part 290 58.07 Commencement of appeal 291 58.08 Notice of appeal 291 58.09 Appellant to file affidavit 292 58.10 Directions 292 58.11 Leave to appeal 293 58.12 Stay 294 58.13 Expedition 294 58.14 Report 294 PART 4—APPEALS UNDER SECTION 80B OF OR CLAUSE 13 OR 18 OF SCHEDULE 2 TO THE CHILDREN AND YOUNG PERSONS ACT 1989 294 58.17 Application of Part 294 58.18 Institution of appeal 295 58.19 Affidavit in support 295 58.20 Hearing 295 58.21 Stay 296 -- 17 of 641 -- Rule Page xviii PART 5—APPEALS UNDER SECTIONS 116 AND 197 OF THE CHILDREN AND YOUNG PERSONS ACT 1989 296 58.22 Application 296 58.23 Definitions 296 58.24 Notice of appeal and undertaking to prosecute 296 58.25 Solicitor to notify that he or she acts 296 58.26 Prothonotary to fix hearing 297 58.27 Abandonment of appeal 297 58.28 Order striking out appeal 297 58.29 Recording of decision on appeal under section 197 298 58.30 Application to set aside order striking out appeal for failure to appear 299 58.31 Application for rehearing of appeal under section 116 299 PART 6—APPEALS UNDER SECTIONS 20 AND 21 OF THE CRIMES (FAMILY VIOLENCE) ACT 1987 299 58.32 Appeals to the Trial Division from the Children's Court 299 ORDER 59—JUDGMENTS AND ORDERS 300 59.01 General relief 300 59.02 Date of effect 300 59.03 Time for compliance 300 59.04 Statement of reasons for judgment 301 59.05 Notice of judgment to non-party 301 59.06 Consent judgment or order by filing 302 59.07 Consent to judgment or order by parties not in attendance 305 ORDER 60—AUTHENTICATION AND FILING OF JUDGMENTS AND ORDERS 306 60.01 When authentication required 306 60.02 Mode of authentication 306 60.03 Drawing up of judgment or order 307 60.04 Order signed by Judge or Master 307 60.05 Recitals in judgments and orders 308 60.06 Drawing up and settling 308 60.07 Copy of judgment or order 309 60.08 Form of judgment or order 309 60.09 Interpretation 309 -- 18 of 641 -- Rule Page xix ORDER 61—JUDGMENT DEBT INSTALMENT ORDERS 310 61.01 Definitions 310 61.02 Application under section 6 or 8 310 61.03 Instalment agreement under section 7 312 61.04 Summons for oral examination of judgment debtor 312 61.05 Notice of instalment order confirmed, varied or cancelled 314 61.06 Order for imprisonment 314 61.07 Certificate of payment 314 61.08 Notices 314 ORDER 62—SECURITY FOR COSTS 316 62.01 Definitions 316 62.02 When security for costs may be ordered 316 62.03 Manner of giving security 317 62.04 Failure to give security 317 62.05 Variation or setting aside 317 ORDER 63—COSTS 318 PART 1—PRELIMINARY 318 63.01 Definitions and application 318 63.02 General powers of Court 319 63.03 Time for costs order and payment 319 63.04 Costs of question or part of proceeding 320 63.05 By whom costs to be taxed 320 63.06 Officers of Court to assist each other 321 63.07 Taxed or other costs provision 321 63.08 Default judgment 321 63.09 Costs in other court or tribunal 322 63.10 No order for taxation required 322 63.11 Enforcement of order of taxing officer 323 63.12 Costs in account 323 PART 2—ENTITLEMENT TO COSTS 323 63.13 Order for payment 323 63.14 Extension or abridgement of time 323 63.15 Discontinuance or withdrawal 324 63.16 Offer of compromise 324 63.16.1 Failure to make discovery or answer interrogatories 324 63.17 Amendment 324 63.18 Non-admission of fact or document 324 63.19 Interlocutory injunction 325 63.20 Interlocutory application 325 63.21 Inquiry as to ownership of property 325 63.22 Costs reserved 325 63.22.1 Evidence transcript costs 326 -- 19 of 641 -- Rule Page xx 63.23 Costs liability of lawyer 326 63.24 Money claim in wrong court 327 63.25 Other claim in wrong court 328 63.26 Trustee or mortgagee 329 PART 3—COSTS OF PARTY IN A PROCEEDING 329 63.27 Application 329 63.28 Bases of taxation 329 63.29 Party and party basis 330 63.30 Solicitor and client basis 330 63.30.1 Indemnity basis 330 63.31 General basis 330 63.32 Where solicitor and client basis applicable 330 63.33 Party as trustee 331 63.34 Charges of solicitor 331 PART 4—TAXING MASTER 331 63.35 Powers of Taxing Master 331 63.36 Costs of taxation 332 PART 5—PROCEDURE ON PARTY AND PARTY TAXATION 332 63.37 Application 332 63.38 Summons for taxation 333 63.39 Filing of bill 334 63.40 Service of bill 334 63.41 Defendant not appearing 334 63.42 Content of bill of costs 334 63.43 Disbursement or fee not paid 335 63.44 Charge of lawyer out of Victoria 335 63.45 Amendment of bill 336 63.46 Agreement as to part of bill 336 63.47 Objection to bill 336 63.48 Discretionary costs 337 63.49 Taxation where no objection 337 63.50 Attendance of parties 338 63.51 Reference to Judge 338 63.52 Notice to person interested in fund 338 63.53 Application by person liable to pay 339 63.54 Solicitor at fault 339 63.55 Cross costs 340 63.56 Order on taxation 340 63.56.1 Review by Taxing Master 341 63.57 Review by Judge 342 -- 20 of 641 -- Rule Page xxi PART 6—COSTS OF A SOLICITOR 343 63.58 Application 343 63.59 Basis of taxation of costs payable by client 344 63.60 Basis of taxation of costs payable otherwise than by client 344 63.61 Solicitor and client basis 345 63.62 Contentious business 345 63.63 Procedure on taxation 346 63.64 Appointment to tax 346 63.65 Reference for taxation 346 63.66 Inclusion in bill of disbursement not made 347 63.67 Failure to serve bill or tax 347 PART 7—ALLOWANCES ON TAXATION GENERALLY 348 63.68 Application and interpretation 348 63.69 Necessary or proper costs 348 63.70 Unnecessary or careless work 348 63.71 Gross sum for costs 349 63.72 Increased allowance 349 63.73 Copy documents 349 63.74 Folio 349 63.75 Service of several documents 349 63.76 Defendants with same solicitor 350 63.77 Procuring evidence 350 63.78 Negotiations 350 63.79 Conference 350 63.80 Retainer of counsel 350 63.81 Advice and other work of counsel 351 63.82 Hearing and trial fees 351 63.83 Premature brief 352 63.84 Barrister and solicitor 352 63.85 Bill reduced by a sixth 353 ORDER 64—APPEAL TO COURT OF APPEAL 354 64.01 Definitions 354 64.02 Appeal by notice 354 64.03 Time for notice of appeal 354 64.04 Service of notice of appeal 355 64.05 Contents of notice of appeal 356 64.06 Amendment of notice of appeal 356 64.07 Filing of notice of appeal 357 64.08 Appeal Book 357 64.09 Contents of appeal book 357 64.10 Notes for guidance 358 64.11 Delivery of appeal book 358 64.12 Costs of appeal book 359 64.13 Entry of appeal 359 -- 21 of 641 -- Rule Page xxii 64.14 Discontinuance without leave 359 64.15 Discontinuance by leave 360 64.16 Appeal taken to be abandoned 361 64.17 Cross-appeal 361 64.18 Filing notice of cross-appeal 362 64.19 Effect of cross-appeal notice 362 64.20 Time 363 64.21 Directions 363 64.22 Powers of the Court of Appeal 363 64.23 New trial 364 64.24 Costs 365 64.25 Stay of execution 366 64.26 Jurisdiction and powers exercisable by a single Judge of Appeal 366 64.27 Jurisdiction and powers exercisable by two Judges of Appeal 367 64.28 Exercise of powers by Master 368 ORDER 65—APPLICATIONS TO COURT OF APPEAL 369 65.01 Definition 369 65.02 Application by summons 369 65.03 Expedition 369 65.04 Filing and service 370 65.05 Delivery of documents to Registrar 370 65.06 Further copies 370 65.07 Documents for inclusion 371 65.08 Preparation of documents 371 65.09 Time 371 65.10 Procedure on application 372 ORDER 66—ENFORCEMENT OF JUDGMENTS AND ORDERS 373 66.01 Definitions 373 66.02 Payment of money 373 66.03 Possession of land 374 66.04 Delivery of goods 374 66.05 Doing or abstaining from doing any act 375 66.06 Attendance of natural person 376 66.07 Attendance of corporation 377 66.08 Attendance before another court etc. 377 66.09 Contempt 377 66.10 Service before committal or sequestration 378 66.11 Substituted performance 379 66.12 Enforcement by or against non-party 380 66.13 Non-performance of condition 380 -- 22 of 641 -- Rule Page xxiii 66.14 Matters occurring after judgment 380 66.15 Order in aid of enforcement 381 66.16 Stay of execution 381 ORDER 67—DISCOVERY IN AID OF ENFORCEMENT 382 67.01 Definitions 382 67.02 Order for examination or production 382 67.03 Corporation 383 67.04 Procedure 383 67.05 Conduct money 383 67.06 Record of examination 383 ORDER 68—WARRANTS OF EXECUTION GENERALLY 384 68.01 Definitions 384 68.02 Leave to issue warrant 384 68.03 Separate execution for costs 386 68.04 Issue of warrant of execution 386 68.05 Duration 387 68.06 Costs of prior execution 388 68.07 Provision for enforcing payment of money 388 68.08 Form of warrant of execution 388 ORDER 69—WARRANT OF SEIZURE AND SALE 389 69.01 Definitions 389 69.02 New enforcement process 389 69.03 Two or more warrants 389 69.04 Order of sale 389 69.05 Time, place and mode of sale 390 69.06 Advertisement of sale 391 69.07 Notional possession of goods 393 ORDER 70—WARRANT OF POSSESSION 394 70.01 Payment of money 394 70.02 Removal of goods on warrant of possession 394 ORDER 71—ATTACHMENT OF DEBTS 395 71.01 Definitions and application 395 71.02 What debts attachable 396 71.03 Bank account 396 71.04 Filing and service of garnishee summons 397 71.05 Evidence on application for garnishee summons 398 71.06 Garnishee summons 398 71.07 Service of summons 399 71.08 What debts attached, when and to what extent 399 -- 23 of 641 -- Rule Page xxiv 71.09 Payment to judgment creditor 400 71.10 Dispute of liability by garnishee 401 71.11 Claim by other person 401 71.12 Discharge of garnishee 401 71.13 Money in court 402 71.14 Costs 402 ORDER 72—ATTACHMENT OF EARNINGS 403 72.01 Definitions 403 72.02 Application for attachment of earnings order 405 72.03 Making of order 406 72.04 Attendance of or information about judgment debtor 406 72.05 Contents of order 408 72.06 Service of order 410 72.07 Employer to make payments 410 72.08 Attachment of earnings in place of other orders 411 72.09 Execution after attachment of earnings 412 72.10 Discharge or variation of order 412 72.11 Cessation of attachment of earnings order 412 72.12 Two or more orders in force 413 72.13 When varied order taken to be made 413 72.14 Notice to judgment debtor of payments 414 72.15 Determination of earnings 414 72.16 Service 415 ORDER 73—CHARGING ORDERS AND STOP ORDERS AND NOTICES 416 73.01 Definitions 416 73.02 Order charging securities 417 73.03 Filing and service of charging summons 417 73.04 Evidence on application for charging summons 417 73.05 Charging summons 418 73.06 Service of summons 419 73.07 Effect of service of summons 419 73.08 Order on summons hearing 419 73.09 Effect and enforcement of charge 420 73.10 Variation or discharge of order 420 73.11 Order charging funds in court 420 73.12 Stop order for funds in court 421 73.13 Stop notice on corporation stock not in court 422 73.14 Effect of stop notice 423 73.15 Withdrawal or discharge of stop notice 423 73.16 Prohibition of transfer of or payment on stock 423 -- 24 of 641 -- Rule Page xxv ORDER 74—ENFORCEMENT BY APPOINTMENT OF RECEIVER 424 74.01 Procedure 424 74.02 Appointment of receiver by way of equitable execution 424 ORDER 75—CONTEMPT 425 PART 1—INTERPRETATION 425 75.01 Definition 425 PART 2—SUMMARY PROCEEDINGS FOR CONTEMPT 425 75.02 Contempt in face of the Court 425 75.03 Procedure on hearing of charge 425 75.04 Custody pending disposal of charge 426 PART 3—OTHER PROCEDURE FOR CONTEMPT 426 75.05 Application 426 75.06 Procedure 426 75.07 Application by Prothonotary 427 75.08 Arrest of respondent 427 75.08.1 Arrest pending contempt hearing 427 75.09 Warrant for arrest 428 PART 4—COMMITTAL AND COSTS 428 75.10 Application 428 75.11 Punishment for contempt 428 75.12 Discharge 429 75.13 Warrant for committal 429 75.14 Costs 429 ORDER 76—SEQUESTRATION 430 76.01 Definitions 430 76.02 Enforcement by sequestration 430 76.03 Order for sequestration 430 76.04 Application 431 ORDER 77—AUTHORITY OF MASTERS 432 77.01 Authority 432 77.02 Limitation upon authority 433 77.03 Master to hear application 435 77.04 Reference by Master to Judge 435 77.05 Appeal 436 77.06 Master acting for Listing Master 437 77.07 Master acting for another 437 77.08 Listing Master and Prothonotary 437 -- 25 of 641 -- Rule Page xxvi ORDER 78—PROCEEDINGS UNDER JUDGMENT 439 78.01 Definition 439 78.02 Directions in judgment 439 78.03 Claims 440 78.04 Interest on debts 441 78.05 Interest on legacies 442 78.06 Account or inquiry by Master 442 78.07 Master's order 443 78.08 Appeal from Master 443 ORDER 79—FUNDS IN COURT 444 PART 1—INTERPRETATION 444 79.01 Definitions 444 PART 2—GENERAL 444 79.02 Application of money 444 79.03 Money in court for person under disability 445 79.04 Payment into court for person under disability 445 79.05 Certificate of receipt 445 79.06 Delay 446 PART 3—COMMON FUNDS 447 79.07 Investments in name of Senior Master 447 79.08 Transfer 447 79.09 Interest 447 79.10 Proceeding in another court 448 ORDER 80—SERVICE OF FOREIGN PROCESS 449 80.01 Application 449 80.02 Documents required 449 80.03 Service 450 80.04 Affidavit of service 451 80.05 Certificate 451 ORDER 81—OBTAINING EVIDENCE FOR EXTERNAL TRIBUNAL 453 81.01 Procedure 453 81.02 Examiner 453 81.03 Conduct of examination 454 81.04 Attendance of non-party 454 81.05 Deposition and exhibits 454 81.06 Certificate 455 __________________ -- 26 of 641 -- Rule Page xxvii FORMS 456 Form 5A—Writ 456 Form 5B—Originating Motion Between Parties 459 Form 5C—Originating Motion Between Parties 461 Form 5D—Originating Motion 462 Form 5E—Originating Motion for Recovery of Land Under Order 53 463 Form 7A—Letter of Request for Service of Document 466 Form 8A—Notice of Appearance 467 Form 8B—Notice of Conditional Appearance 467 Form 10A—Heading and Notice on Counterclaim Where Defendant New Party 468 Form 10B—Notice of Appearance to Counterclaim 470 Form 11A—Third Party Notice 471 Form 11B—Notice by One Tortfeasor Claiming Contribution Against Another 474 Form 12A—Notice of Claim to Goods Taken in Execution 475 Form 15A—Order Approving Compromise of Claim of Minor 476 Form 15B—Order Approving Compromise of Claim Under Part III of Wrongs Act for Benefit of Minor 478 Form 18AA—Notice of Consent to be a Group Member 480 Form 18AB—Notice of Opting Out by Group Member 481 Form 19A—Notice of a Constitutional Matter 482 Form 29A—Notice for Discovery 482 Form 29B—Affidavit of Documents 483 Form 29C—Notice to Produce 485 Form 29D—Notice of Default in Making Discovery of Documents 485 Form 30A—Notice of Default in Answering Interrogatories 486 Form 35A—Notice to Admit 487 Form 35B—Notice of Dispute 488 Form 39A—Deed of Guarantee 489 Form 41A—Order for Examination Within Victoria 490 Form 41B—Order for Examination Out of Victoria 491 -- 27 of 641 -- Rule Page xxviii Form 41C—Order for Letter of Request to Judicial Authority Out of Victoria 493 Form 41D—Letter of Request for Examination of Witness 494 Form 41AA—Notice of Application Under Section 42E(1) of the Evidence Act 1958 496 Form 42A—Subpoena to Give Evidence 498 Form 42B—Subpoena for Production 499 Form 42C—Subpoena for Production and to Give Evidence 501 Form 42D—Subpoena for Production 503 Form 42E—Subpoena for Production to Prothonotary 505 Form 42F—Subpoena for Production to Prothonotary 508 Form 43A—Certificate Identifying Exhibit 511 Form 44A—Expert Witness Code of Conduct 512 Form 45A—Summons on Originating Motion 514 Form 46A—Summons 515 Form 48A—Notice of Trial 516 Form 48B—Notice of Trial 517 Form 53A—Judgment in Summary Proceeding for Recovery of Land 518 Form 53B—Warrant of Possession in Summary Proceeding for Recovery of Land 519 Form 57A—Writ of Habeas Corpus 520 Form 58A—Notice of Appeal 521 Form 58B—Notice of Appeal and Undertaking to Prosecute 522 Form 58C—Notice of Abandonment of Appeal 524 Form 58D—Notice of Abandonment of Appeal 525 Form 58E—Order Striking Out Appeal 526 Form 58F—Notice of Supreme Court's Decision on Appeal 527 Form 58G—Application to Set Aside Order Striking Out Appeal for Failure to Appear 528 Form 58H—Application for Rehearing of Appeal 530 Form 58J—Application for Leave to Apply Out of Time for Rehearing of Appeal 532 Form 59A—Notice of Judgment 534 -- 28 of 641 -- Rule Page xxix Form 60A—General Form of Judgment Given 535 Form 60B—General Form of Judgment Entered 536 Form 60C—General Form of Order 537 Form 60D—Judgment at Trial by Judge Without a Jury 538 Form 60E—Judgment at Trial by Judge With a Jury 539 Form 60F—Judgment or Order at Trial of Preliminary Question 540 Form 60G—Default Judgment for Debt 541 Form 60H—Default Judgment for Recovery of Land 541 Form 60J—Interlocutory or Interlocutory and Final Judgment for Damages in Default 542 Form 60K—Final Judgment for Damages or Value in Default 543 Form 60L—Interlocutory or Interlocutory and Final Judgment for Detention of Goods in Default 544 Form 61A—Application to Master for Order for Payment of Judgment Debt by Instalments 545 Form 61B—Application to Master for Order in Substitution for Order for Payment of Judgment Debt by Instalments 546 Form 61C—Application to the Court for Variation or Cancellation or Order for Payment of Judgment Debt by Instalments 548 Form 61D—Order Relating to Payment of Judgment Debt by Instalments 550 Form 61E—Notice of Order or Refusal of Order by Master for Payment of Judgment Debt by Instalments 551 Form 61F—Notice of Objection 552 Form 61G—Notice of Hearing of Objection 553 Form 61H—Notice by Court Relating to Payment of Judgment Debt by Instalments 554 Form 61J—Instalment Agreement 556 Form 61K—Order for Instalment Payment of Judgment Debt After Agreement 558 Form 61L—Notice of Order for Instalment Payment of Judgment Debt After Agreement 559 Form 61M—Summons to Attend for Oral Examination 560 Form 61N—Warrant of Apprehension on Disobedience to Summons 561 -- 29 of 641 -- Rule Page xxx Form 61P—Notice to Judgment Creditor of Summons or Warrant to Judgment Debtor 562 Form 61Q—Notice by Court of Confirmation, Variation or Cancellation of Judgment Debt Instalment Order 563 Form 61R—Certificate of Payment 564 Form 63A—Summons for Taxation of Costs 565 Form 64A—Notice of Address for Service 565 Form 68A—Warrant of Seizure and Sale 566 Form 68B—Warrant of Possession 567 Form 68C—Warrant of Delivery 568 Form 69A—Advertisement of Sale by the Sheriff 570 Form 71A—Garnishee Summons 571 Form 71B—Garnishee Order 573 Form 71C—Garnishee Order 574 Form 72A—Attachment of Earnings Summons 575 Form 72B—Affidavit in Support of Application for Attachment of Earnings Order 576 Form 72C—Judgment Debtor's Statement of Financial Situation 577 Form 72D—Summons for an Order to Attend for Examination or Furnish Particulars 581 Form 72E—Affidavit in Support of Summons for an Order to Attend for Examination or Furnish Particulars 582 Form 72F—Order that Judgment Debtor Attend or Give Statement 583 Form 72G—Order that Person Indebted to or Employer of Judgment Debtor Give Statement 584 Form 72H—Attachment of Earnings Order 585 Form 72J—Notice to Employer 587 Form 72K—Notice by Employer that Judgment Debtor is Not in Employer's Employ 589 Form 72L—Notice of Cessation of Attachment of Earnings Order 590 Form 73A—Charging Summons 591 Form 73B—Affidavit as to Stock 593 Form 73C—Notice as to Stock 594 -- 30 of 641 -- Rule Page xxxi Form 75A—Arrest Warrant in Summary Proceedings for Contempt in Face of Supreme Court 595 Form 75AA—Arrest Warrant Pending Contempt Hearing 595 Form 75B—Arrest Warrant in Contempt Proceedings by Summons or Originating Motion 596 Form 75C—Committal Warrant 597 __________________ Appendix A—Scale of Costs 598 Appendix B—Witnesses' Expenses and Interpreters' Allowances 606 __________________ SCHEDULE—Revoked Statutory Rules 608 ═══════════════ -- 31 of 641 -- 1 STATUTORY RULES 2005 S.R. No. 148/2005 Supreme Court Act 1986 Supreme Court (General Civil Procedure) Rules 2005 The Judges of the Supreme Court make the following Rules: ORDER 1 PRELIMINARY PART 1—CITATION, COMMENCEMENT AND REVOCATION 1.01 Title and object (1) These Rules constitute Chapter I of the Rules of the Supreme Court and are entitled the Supreme Court (General Civil Procedure) Rules 2005. (2) The object of these Rules is re-make the general rules of procedure in civil proceedings to constitute a new Chapter I of the Rules of the Supreme Court. 1.02 Authorising provisions These Rules are made under section 25 of the Supreme Court Act 1986 and all other enabling powers. 1.03 Commencement and revocation (1) These Rules come into operation on 1 January 2006. (2) The Rules set out in the Schedule are revoked. -- 32 of 641 -- Order 1 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 2 PART 2—APPLICATION OF RULES 1.04 Definitions In this Part— "commencement date" means 1 January 2006; "former Rules" means the Supreme Court (General Civil Procedure) Rules 1996; "pending proceeding" means a civil proceeding in the Court to which, immediately before the commencement date, the former Rules applied. 1.05 Application (1) Subject to this Rule, these Rules apply to every civil proceeding commenced in the Court whether before or after the commencement date. (2) These Rules do not apply to a civil proceeding to which any other Chapter of the Rules of the Supreme Court applies except as that Chapter provides. (3) The revocation of the former Rules shall not affect anything done or omitted to be done in a pending proceeding and, except as provided in this Part, anything so done or omitted shall be taken to have been done or omitted under these Rules. 1.06 Jurisdiction not affected Nothing in these Rules shall limit the jurisdiction, power or authority which the Court had immediately before the commencement date. 1.07–1.11 * * * * * 1.12 Order to review (1) Unless the Court otherwise orders, subject to paragraph (2), these Rules shall, with any necessary modification, apply to an order for review under the Administrative Law Act 1978. r. 1.04 -- 33 of 641 -- Order 1 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 3 (2) A proceeding of a kind referred to in paragraph (1) shall not be commenced by writ or originating motion. PART 3—INTERPRETATION 1.13 Definitions (1) In these Rules, unless the context or subject matter otherwise requires— "Act" includes any Act passed by the Parliament of the Commonwealth; "Australia" has the meaning ascribed by the Service and Execution of Process Act 1992 of the Commonwealth; "bank" means an authorised deposit-taking institution within the meaning of the Banking Act 1959 of the Commonwealth; "bodily injury" includes any impairment of mental condition or disease; "Convention" means a Convention with a foreign country, made with or made and extended to the Commonwealth of Australia or the State of Victoria, with respect to legal proceedings in civil or criminal matters; "Convention country" means a foreign country to which a Convention applies; "corporation" means any body corporate, whether formed within or out of Victoria; "defendant" includes respondent; r. 1.13 -- 34 of 641 -- Order 1 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 4 "discovery" includes discovery and inspection of documents and discovery by written interrogatories or oral examination, and "make discovery of documents" means make an affidavit of documents complying with the requirements of these Rules, file the affidavit and serve a copy on the party or person entitled to the discovery; "judgment given" means a judgment given by the Court at the trial of a proceeding or on the hearing of an application in a proceeding; "Master" means a Master of the Supreme Court and includes an acting Master appointed by the Governor in Council, the Senior Master, the Listing Master, the Registrar of Criminal Appeals and the Taxing Master; "officer", in relation to a corporation, means director, secretary, receiver, receiver and manager, official manager, liquidator and trustee administering a compromise or arrangement made between the corporation and another person or persons; "order made" means an order made by the Court at the trial of a proceeding or on the hearing of an application in a proceeding; "originating process" means any process by which a proceeding is commenced, and includes a third party notice and, where a counterclaim is made against a person not previously a party to the proceeding in which the counterclaim is made, the counterclaim; "pleading" includes an indorsement of claim on a writ which constitutes a statement of claim, and includes particulars of any pleading; r. 1.13 -- 35 of 641 -- Order 1 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 5 "proceeding" means any matter in the Court commenced by writ or originating motion or as otherwise provided by or under any Act or these Rules; "Prothonotary", in relation to a proceeding commenced in an office of the Court outside Melbourne, means the Deputy Prothonotary at that office; "question" means any question, issue or matter for determination by the Court, whether of fact or law or of fact and law, raised by the pleadings or otherwise at any stage of a proceeding by the Court, by any party or by any person not a party who has a sufficient interest; "Registrar" means the Registrar of the Court of Appeal; "solicitor" means an Australian lawyer as defined in the Legal Profession Act 2004, other than a barrister as defined in that Act, and includes an incorporated legal practice as defined in that Act; "the Act" means the Supreme Court Act 1986. (2) In these Rules, unless the context or subject matter otherwise requires— (a) a reference to a Judge is a reference to the Court constituted by a Judge; and (b) a reference to a Master is a reference to the Court constituted by a Master. (3) Where by these Rules a form is prescribed for use, that form shall be used with any necessary variation or modification. r. 1.13 -- 36 of 641 -- Order 1 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 6 PART 4—MISCELLANEOUS 1.14 Exercise of power (1) In exercising any power under these Rules the Court— (a) shall endeavour to ensure that all questions in the proceeding are effectively, completely, promptly and economically determined; (b) may give any direction or impose any term or condition it thinks fit. (2) The Court may exercise any power under these Rules of its own motion or on the application of a party or of any person who has a sufficient interest. 1.15 Procedure wanting or in doubt (1) Where the manner or form of the procedure— (a) for commencing, or for taking any step, in a proceeding; or (b) by which the jurisdiction, power or authority of the Court is exercisable— is not prescribed by these Rules or by or under any Act, or for any other reason there is doubt as to the manner or form of that procedure, the Court shall determine what procedure is to be adopted and may give directions. (2) An act done in accordance with a determination or direction under paragraph (1) is regular and sufficient. (3) An application for directions with respect to the commencement of a proceeding shall be made by originating motion in which no person is named as defendant and an application for directions with respect to a proceeding already commenced shall be made by summons. r. 1.14 -- 37 of 641 -- Order 1 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 7 1.16 Act by corporation Where the Court makes an order that a corporation do any act, it may order that the act be done by the corporation by its appropriate officer. 1.17 Corporation a party (1) Except where otherwise provided by or under any Act or these Rules, a corporation, whether or not a party, shall not take any step in a proceeding save by a solicitor. (2) If a corporation a party to a proceeding in the Court changes its name it shall— (a) file written notice of the change of name in the Prothonotary's Office; and (b) serve a copy of that notice on all other parties to the proceeding. (3) The notice shall— (a) bear the title of the proceeding showing the name of the corporation before the change; and (b) specify the new name of the corporation and the date on which the name was changed. (4) After a corporation has filed a notice of change of name, the corporation shall be given its new name in all documents filed in the proceeding followed by the phrase "(formerly [old name])". 1.18 Power to act by solicitor Unless the context or subject matter otherwise requires, any act, matter or thing which under the Act or these Rules or otherwise by law is required or permitted to be done by a party may be done by the party's solicitor. r. 1.16 -- 38 of 641 -- Order 1 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 8 1.19 Continuation of address for service Subject to these Rules, where in relation to a proceeding a party has an address for service under these Rules, that is the address for service of the party until the conclusion of the proceeding, whether at first instance or on appeal. __________________ r. 1.19 -- 39 of 641 -- Order 2 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 9 ORDER 2 NON-COMPLIANCE WITH THE RULES 2.01 Effect of non-compliance (1) A failure to comply with these Rules is an irregularity and does not render a proceeding or step taken, or any document, judgment or order therein a nullity. (2) Subject to Rules 2.02 and 2.03, where there has been a failure to comply with these Rules, the Court may— (a) set aside the proceeding, either wholly or in part; (b) set aside any step taken in the proceeding, or any document, judgment or order therein; (c) exercise its powers under these Rules to allow amendments and to make orders dealing with the proceeding generally. 2.02 Originating process The Court shall not wholly set aside any proceeding or the originating process by which the proceeding was commenced on the ground that the proceeding was commenced by the wrong process. 2.03 Application to set aside for irregularity The Court shall not set aside any proceeding or any step taken in any proceeding or any document, judgment or order therein on the ground of a failure to which Rule 2.01 applies on the application of any party unless the application is made within a reasonable time and before the applicant has taken any fresh step after becoming aware of the irregularity. r. 2.01 -- 40 of 641 -- Order 2 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 10 2.04 Dispensing with compliance The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises. __________________ r. 2.04 -- 41 of 641 -- Order 3 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 11 ORDER 3 TIME, SITTINGS AND COURT OFFICE 3.01 Calculating time (1) Any period of time fixed by these Rules or by any judgment or order or by any document in any proceeding shall be calculated in accordance with this Rule. (2) Where a time of one day or longer is to begin on, or to be calculated from, a day or event, the day or the day of the event shall be excluded. (3) Where a time of one day or longer is to end on, or to be calculated to, a day or event, the day or the day of the event shall be included. (4) Where a period of five days or less would include a day on which the office of the Court is closed, that day shall be excluded. (5) Where the last day for doing any act at the office of the Court is a day on which the office is closed, the act may be done on the next day the office is open. 3.02 Extension and abridgement (1) The Court may extend or abridge any time fixed by these Rules or by any order fixing, extending or abridging time. (2) The Court may extend time under paragraph (1) before or after the time expires whether or not an application for the extension is made before the time expires. (3) Unless the Court otherwise orders, any time fixed by these Rules or by any order fixing, extending or abridging time may be extended by consent without an order of the Court. r. 3.01 -- 42 of 641 -- Order 3 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 12 3.03 Fixing time Where no time is fixed by these Rules or by any judgment or order for doing any act in a proceeding, the Court may fix a time. 3.04 Process in vacation (1) In calculating the time fixed by these Rules or by any order fixing, extending or abridging time, the period from 24 December to 9 January next following shall be excluded, unless the Court otherwise orders. (2) Where the Court makes an order under paragraph (1), the party on whose application the order was made shall serve a copy of the order— (a) in the case of an order with respect to the time for appearance to originating process, with the originating process; (b) in any other case, on every other party forthwith. 3.05 Time for service (1) In this Rule "document" does not include originating process. (2) In calculating the time fixed by these Rules or by any order fixing, extending or abridging time any document which is served after 4.00 p.m. or on any day the office of the Court is closed shall be taken to have been served on the next day the office is open. 3.06 Proceedings after a year Where a year or more has elapsed since any party has taken any step in a proceeding, any party desiring the proceeding to continue shall give to every other party not less than one month's notice in writing of that party's desire. r. 3.03 -- 43 of 641 -- Order 3 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 13 3.07 Sittings and vacation The sittings and vacations of the Court shall be held at such times as the Judges shall direct. 3.08 Office The office of the Court shall be open on every day of the year except Saturdays, Sundays, the Tuesday following Easter, and every day duly appointed as a general public holiday. 3.09 Office hours The hours of the office of the Court shall be from 9.30 a.m. to 4.00 p.m. __________________ r. 3.07 -- 44 of 641 -- Order 4 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 14 ORDER 4 PROCESS IN THE COURT 4.01 How proceeding commenced Except where otherwise provided by or under any Act or these Rules a proceeding in the Court shall be commenced by writ or by originating motion. 4.02 Interlocutory application An interlocutory or other application in a proceeding made on notice to any person shall be by summons. 4.03 Names of parties (1) Except as provided by this Rule, a person who commences a proceeding shall be called a plaintiff and a person against whom a proceeding is commenced shall be called a defendant. (2) A person who commences a proceeding under Rule 32.03, 32.05, 37.02 or 75.06(3) shall be called an applicant and the person against whom the proceeding is commenced shall be called a respondent. (3) A person who commences a proceeding referred to in Rule 1.12 shall be called an applicant and the person against whom the proceeding is commenced shall be called a respondent. (4) A person who appeals shall be called an appellant and any other party to the appeal shall be called a respondent. r. 4.01 -- 45 of 641 -- Order 4 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 15 (5) Where any appellant or respondent on an appeal is a party to a proceeding, the appellant or respondent shall be so identified in any document in the appeal by the expression "(Plaintiff)", "(Defendant)", "(Applicant)" or other description of party after the word "Appellant" or "Respondent" in the title of the document. 4.04 When writ required Except as provided by Rules 1.12, 4.05 and 4.06 and Order 58, every proceeding shall be commenced by writ. 4.05 When originating motion required A proceeding shall be commenced by originating motion— (a) where there is no defendant to the proceeding; (b) where by or under any Act an application is authorised to be made to the Court; or (c) where required by these Rules. 4.06 Optional commencement by originating motion A proceeding may be commenced by originating motion where— (a) it is unlikely that there will be any substantial dispute of fact; and (b) for that reason it is appropriate that there be no pleadings or discovery. 4.07 Continuance as writ of proceeding by originating motion (1) Where a proceeding in which there is a defendant is commenced by originating motion, but ought by or under any Act or these Rules to have been commenced by writ, or might in the opinion of the r. 4.04 -- 46 of 641 -- Order 4 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 16 Court more conveniently continue as if commenced by writ— (a) the Court may order that the proceeding continue as if it had been commenced by writ and may, in particular, order that any affidavits already filed in the proceeding shall stand as pleadings, with or without liberty to any of the parties to add thereto or to apply for particulars thereof or that pleadings be served between the parties, and that the parties have discovery of each other; and (b) by virtue of that order, the proceeding shall be taken to have been duly commenced for all purposes on the day the originating motion was filed. (2) Any reference in these Rules to a proceeding commenced by writ shall, unless the context otherwise requires, be taken to include a reference to a proceeding in respect of which an order has been made under paragraph (1). 4.08 Urgent case In an urgent case, the Court may, on the application of a person who intends to commence a proceeding and upon that person's undertaking to commence the proceeding within such time as the Court directs, make any order which the Court might make if the applicant had commenced the proceeding and the application were made in the proceeding. __________________ r. 4.08 -- 47 of 641 -- Order 5 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 17 ORDER 5 CONTENT, FILING AND DURATION OF ORIGINATING PROCESS 5.01 Definitions In this Order— "originating process" means writ, originating motion or other process by which a proceeding is commenced; "writ" does not include writ of habeas corpus. 5.02 Form of originating process (1) A writ shall be in Form 5A. (2) An originating motion shall be in Form 5B, 5C, 5D or 5E, whichever is appropriate. 5.03 Appearance (1) A writ and, unless there is no defendant, an originating motion shall be indorsed with a statement to the effect that if the defendant does not file an appearance within the time stated in the originating process the plaintiff may obtain judgment against the defendant without further notice. (2) Except as provided in paragraph (3) the time for appearance to be stated in the originating process shall be as provided by Rule 8.04. (3) An originating motion under Order 53 which names a defendant shall state that the defendant may file an appearance on or before the day specified in the originating motion for application to the Master. r. 5.01 -- 48 of 641 -- Order 5 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 18 5.04 Indorsement of claim on writ (1) A writ shall contain an indorsement of claim. (2) The indorsement of claim shall be— (a) a statement of claim; or (b) a statement sufficient to give with reasonable particularity notice of the nature of the claim and the cause thereof and of the relief or remedy sought in the proceeding. (3) An indorsement of claim on a writ shall constitute a statement of claim if, but only if, it is headed "Statement of Claim". 5.05 Indorsement of claim on motion An originating motion shall specify the relief or remedy sought and the Act, if any, under which the claim is made, and, where it includes any question to be answered, the question shall be stated. 5.06 Indorsement as to capacity Where a party sues or is sued in a representative capacity, the originating process shall be indorsed with a statement showing that capacity. 5.07 Address of parties (1) An originating process shall be indorsed with— (a) the address of the plaintiff, and, where the plaintiff sues in person and that address is outside Victoria, also an address within Victoria for service in accordance with Rule 6.06; (b) the address of any defendant; r. 5.04 -- 49 of 641 -- Order 5 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 19 (c) where the plaintiff sues by a solicitor, the name or firm and the business address within Victoria of the solicitor and also, if the solicitor is the agent of another, the name or firm and the business address of the principal. (2) Where any originating process is indorsed with the name of a solicitor— (a) the solicitor shall, on request in writing by a defendant, declare in writing whether the originating process was filed by the solicitor; and (b) if the solicitor declares in writing that the originating process was not filed by the solicitor, the Court may stay the proceeding. 5.08 Place and mode of trial (1) A writ shall be indorsed with a statement of the place and mode of trial desired. (2) If the writ is not indorsed with a statement as to the place of trial, the plaintiff shall be taken to desire trial in Melbourne, and, if the writ is not indorsed with a statement as to the mode of trial, the plaintiff shall be taken to desire trial without a jury. (3) The plaintiff may indorse an originating motion with a statement of the place of trial desired, and, if the originating motion is not so indorsed, the plaintiff shall be taken to desire trial in Melbourne. r. 5.08 -- 50 of 641 -- Order 5 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 20 5.09 Stay on payment of costs (1) Where in a proceeding commenced by writ the plaintiff claims a debt only, the writ shall be indorsed with— (a) a statement of the amount of the debt and the amount claimed for costs; and (b) a statement that the proceeding will come to an end if, within the time limited for filing an appearance, the defendant pays the amounts so claimed to the plaintiff or the plaintiff's solicitor. (2) Where a writ is indorsed in accordance with paragraph (1), and the defendant pays the amounts claimed within the time limited for filing an appearance, then, except as provided by paragraph (3), the proceeding shall come to an end. (3) The defendant may, notwithstanding the payment, have the costs taxed, and, if more than one-sixth shall be disallowed, the plaintiff 's solicitor shall pay the costs of taxation. 5.10 Petition A petition shall include at the end— (a) a statement of the person intended to be served, if any; or (b) if no person is intended to be served, a statement to that effect. 5.11 Filing of originating process (1) A proceeding shall be commenced by filing the originating process. (2) The originating process filed shall be signed by the solicitor for the plaintiff or by the plaintiff where the plaintiff sues in person, but need not be signed by the Prothonotary. r. 5.09 -- 51 of 641 -- Order 5 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 21 (3) Upon an originating process being filed or at any later time, the Prothonotary, on the request of the plaintiff, shall seal a sufficient number of copies of the originating process for service and proof of service. (4) In a proceeding commenced by originating motion, where the relief or remedy sought includes the construction of any instrument other than an Act, a copy of the instrument or, where it exceeds 25 pages, of the relevant parts shall be lodged with the Prothonotary at the time the originating motion is filed. (5) If the Prothonotary's office is closed and the plaintiff produces an originating process to the Court and undertakes that the originating process will be lodged in the Prothonotary's office on the day the office is next open— (a) the Court may initial the originating process and such number of copies as are required for service or proof of service; and (b) upon such initialling the originating process shall be taken to have been filed. 5.12 Duration and renewal of originating process (1) A writ or an originating motion shall be valid for service for one year after the day it is filed. (2) Where a writ or originating motion has not been served on a defendant, the Court may from time to time by order extend the period of validity for such period from the day of the order as the Court directs, being not more than one year from that day. (3) An order may be made under paragraph (2) before or after expiry. r. 5.12 -- 52 of 641 -- Order 5 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 22 (4) The plaintiff may apply under paragraph (2) without notice to the defendant, but if the Court considers that the defendant ought to be heard, the Court shall adjourn the further hearing and direct the plaintiff to give notice to the defendant by summons or otherwise. (5) Where an order is made under paragraph (2), the Prothonotary shall stamp any sealed copy originating process for service with the date of the order and the extended date of validity. __________________ r. 5.12 -- 53 of 641 -- Order 6 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 23 ORDER 6 SERVICE 6.01 When personal service necessary Any document required or permitted to be served in a proceeding may be served personally, but unless personal service is required by these Rules or by order, need not be served personally. 6.02 Personal service of originating process (1) Except where otherwise provided by or under any Act or these Rules, originating process shall be served personally on each defendant. (2) Where a defendant to any originating process files an unconditional appearance, the originating process shall be taken to have been served on the defendant personally on the day on which the appearance is filed or on such earlier day as may be proved. 6.03 How personal service effected (1) Personal service of a document is effected by— (a) leaving a copy of the document with the person to be served; or (b) if the person does not accept the copy, by putting the copy down in the person's presence and telling the person the nature of the document. (2) In the case of originating process, the copy for service shall be sealed in accordance with Rule 5.11. (3) To effect personal service it shall not be necessary to show the original document. r. 6.01 -- 54 of 641 -- Order 6 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 24 6.04 Service on particular defendants Personal service of a document may be effected by serving the document in accordance with Rule 6.03, in the case of— (a) a corporation— (i) on the mayor, chairman, president or other head officer of the corporation; or (ii) on the town clerk, clerk, treasurer, manager, secretary or other similar officer of the corporation; (b) a minor, on a parent or guardian of the minor, and, if there is none, on the person with whom the minor resides or in whose care the minor is; (c) a handicapped person as defined in Rule 15.01, on— (i) the person who, in accordance with Rule 15.03(2), would be entitled to be litigation guardian in any proceeding to which the handicapped person was party; or (ii) if there is no such person, the person with whom the handicapped person resides or in whose care the handicapped person is; (d) the Crown in right of the Commonwealth or the Commonwealth— (i) on the Secretary to the Attorney- General's Department; or (ii) any person authorised under section 55E(4) of the Judiciary Act 1903 of the Commonwealth to act in the name of the Australian Government Solicitor; r. 6.04 -- 55 of 641 -- Order 6 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 25 (e) the Crown in right of Victoria or the State of Victoria, on the Victorian Government Solicitor. 6.05 Motor car death or bodily injury (1) In any proceeding in which the plaintiff claims damages in respect of death or bodily injury caused by or arising out of the use of a motor car, originating process shall not be taken to have been served on the defendant unless a copy of the originating process is served on the defendant in accordance with these Rules and also on the Transport Accident Commission. (2) Where in a proceeding to which paragraph (1) applies a copy of the originating process has been duly served on the defendant but not on the Transport Accident Commission, the Court, notwithstanding paragraph (1), may order that the originating process be taken to have been served on the defendant. 6.06 Address for service (1) The address for service of a plaintiff shall be— (a) where the plaintiff sues by a solicitor, the business address of that solicitor indorsed on the originating process or, where the solicitor acts by an agent, the business address of the agent; (b) where the plaintiff sues in person, the plaintiff's address in Victoria indorsed on the originating process. (2) The address for service of a defendant shall be as provided in Rule 8.06. r. 6.05 -- 56 of 641 -- Order 6 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 26 6.06.1 Solicitor changing address (1) Where the business address of a solicitor or of the agent of a solicitor given in accordance with Rule 6.06 or 8.06 is changed, the solicitor shall forthwith file notice of the change and serve a copy of the notice on every party. (2) Upon the filing and service of notice in accordance with paragraph (1), the address for service of the party for whom the solicitor acts shall be the new business address of the solicitor or, if the business address of the agent of the solicitor is changed, the new business address of the agent, stated in the notice. (3) If a solicitor required under paragraph (1) to file and serve notice does not do so, a document not required to be served personally on the party for whom the solicitor acts may, until notice is filed and served, be served on the party either at— (a) the address given in accordance with Rule 6.06; or (b) the new business address of the solicitor or of the agent, as the case may be. 6.07 How ordinary service effected (1) Where personal service of a document is not required, the document may be served— (a) by leaving the document at the proper address of the person to be served on any day on which the Prothonotary's office is open; (b) by posting the document to the person to be served at the person's proper address; (c) where provision is made by or under any Act for service of a document on a corporation, by serving the document in accordance with that provision; r. 6.06.1 -- 57 of 641 -- Order 6 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 27 (d) where the solicitor for a party has facilities for the reception of documents in an exchange box in a document exchange, by leaving the document in that exchange box or in another exchange box for transmission to that exchange box; or (e) where the solicitor for a party has facilities for the reception by telephone transmission of a facsimile of a document, by telephone transmission of the document in accordance with paragraph (2.1). (2) For the purpose of paragraph (1), the proper address of a person shall be the address for service of that person in the proceeding, but if at the time service is to be effected that person has no address for service, the proper address shall be— (a) in the case of an individual, his or her usual or last known place of residence or of business; (b) in the case of individuals suing or being sued in the name of a firm, the principal or last known place of business of the firm; (c) in the case of a corporation, the registered or principal office of the corporation. (2.1) A document that is served by telephone transmission shall include a cover page stating— (a) the name, address and telephone number of the sender; (b) the name of the solicitor to be served; (c) the date and time of transmission; (d) the total number of pages transmitted, including the cover page; (e) the telephone number from which the document is transmitted; r. 6.07 -- 58 of 641 -- Order 6 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 28 (f) the name and telephone number of a person to contact in the event of any problem in transmission of the document; (g) that the transmission is by way of service under Rule 6.07(1)(e). (3) Where no person can be found at the address for service of a plaintiff who sues or a defendant who has appeared in person, any document in the proceeding may be served on that plaintiff or defendant by filing it. (3.1) A party who serves a document by filing in accordance with paragraph (3) shall indorse upon a backsheet or on the back of the last sheet a statement that the document is filed as such service. (4) Service in accordance with paragraph (1)(a) or (1)(e) which is effected after 4.00 p.m. shall, for the purpose of calculating any period of time after that service, be taken to have been effected on the next day the Prothonotary's office is open. (5) The day of service of a document shall, where the document— (a) is sent by post in accordance with paragraph (1)(b)—be taken to be the day it would be delivered in the normal course of post; (b) is delivered into the facilities of a document exchange in accordance with paragraph (1)(d)—be taken to be the day following the day upon which it is so delivered or, where a document is delivered on a Friday, be taken to be the following Monday— or on such other day as may be proved. r. 6.07 -- 59 of 641 -- Order 6 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 29 (6) In this Rule, "document exchange" means any document exchange for the time being approved by the Chief Justice on the recommendation of the Council of the Law Institute of Victoria. 6.08 Identity of person served For the purposes of proof of service, evidence of a statement by a person of that person's identity or that the person holds some office is evidence of that person's identity or that the person holds that office. 6.09 Acceptance of service by solicitor (1) This Rule applies to service of a document whether or not required to be served personally. (2) If a solicitor makes a note on a copy of a document that service of the document is accepted on behalf of a person, the document shall, unless the solicitor is shown not to have had authority to accept service, be taken to have been served on the person on the day the solicitor made the note. (3) Paragraph (2) does not limit other service of the document on the person or proof of such service. 6.10 Substituted service (1) Where for any reason it is impracticable to serve a document in the manner required by these Rules, the Court may order that, instead of service, such steps be taken as the Court specifies for the purpose of bringing the document to the notice of the person to be served. (2) Where the Court makes an order under paragraph (1), the Court may order that the document be taken to have been served— (a) on the happening of any specified event; or (b) on the expiry of any specified time. r. 6.08 -- 60 of 641 -- Order 6 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 30 (3) The Court may make an order under paragraph (1) notwithstanding that the person to be served is out of Victoria or was out of Victoria when the proceeding commenced. 6.11 Confirmation of informal service Where for any reason a document has not been served in the manner required by these Rules, but the document has come to the notice of the person to be served, the document shall be taken to have been served on the day it came to the person's notice. 6.12 Service by filing (1) Where the service of a document on a party to a proceeding is required or permitted, but personal service is not required, and that party is in default of appearance or has no address for service in the proceeding, the filing of the document shall, unless the Court otherwise orders, have effect as service of the document on that person. (2) A party who serves a document by filing in accordance with paragraph (1) shall indorse upon a backsheet or on the back of the last sheet a statement that the document is filed as such service. 6.13 Service on agent (1) Where a contract has been entered into within Victoria by or through an agent residing or carrying on business within Victoria on behalf of a principal residing or carrying on business out of Victoria, originating process in a proceeding relating to or arising out of such contract may, by leave of the Court given before the determination of such agent's authority or of the agent's business relations with the principal, be served on such agent. r. 6.11 -- 61 of 641 -- Order 6 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 31 (2) Where an order giving leave is made under paragraph (1)— (a) the order shall limit a time within which the defendant must file an appearance; and (b) a copy of the order and of the originating process shall forthwith be sent by pre-paid post to the defendant at the defendant's address out of Victoria. 6.14 Service under contract Where the parties to any proceeding have, before or after the commencement of the proceeding, agreed that originating process or any other document in the proceeding may be served on a party or on a person on behalf of a party in a manner or at a place (whether within or outside Victoria) specified in the agreement, service in accordance with the agreement shall be sufficient service. 6.15 Recovery of vacant land (1) In a proceeding for the recovery of land, the Court may— (a) if satisfied that no person appears to be in possession of the land and that service of originating process cannot be otherwise effected on any defendant without undue delay or expense, authorise service on that defendant to be effected by affixing a copy of the originating process to some conspicuous part of the land; (b) if satisfied that no person appears to be in possession of the land and that service could not otherwise have been effected on any defendant without undue delay or expense, order that service already effected by affixing a copy of the originating process to r. 6.14 -- 62 of 641 -- Order 6 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 32 some conspicuous part of the land shall be taken to be good service on that defendant. (2) This Rule has effect notwithstanding that the defendant is outside Victoria at the time of affixing the copy of the originating process. 6.16 Service of notice by the Court Unless the Rules otherwise provide or the Court otherwise orders, where under these Rules or under an order of the Court any notice or other document is to be given to or served on any person by the Court, the notice or document shall be sufficiently given or served in any manner in which a document not requiring personal service may be served under this Order. 6.17 Affidavit of service (1) In the case of personal service of a document, an affidavit of service of the document shall state— (a) by whom the document was served; (b) the hour of the day, day of the week and date on which it was served; (c) the place of the service; and (d) the manner of identification of the person served. (2) In any other case of service of a document, an affidavit of service of the document shall state with relevant dates the facts constituting service. (3) An affidavit of service of originating process shall exhibit a sealed copy of the originating process. __________________ r. 6.16 -- 63 of 641 -- Order 7 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 33 ORDER 7 SERVICE OUT OF AUSTRALIA PART 1—WHEN SERVICE OUT IS ALLOWED 7.01 For what claims (1) Originating process may be served out of Australia without order of the Court where— (a) the whole subject matter of the proceeding is land situate within Victoria (with or without rents or profits) or the perpetuation of testimony relating to land so situate; (b) any act, deed, will, contract, obligation or liability affecting land situate within Victoria is sought to be construed, rectified, set aside or enforced in the proceeding; (c) any relief is sought against a person domiciled or ordinarily resident within Victoria; (d) the proceeding is for the administration of the estate of a person who died domiciled within Victoria or is for any relief or remedy which might be obtained in any such proceeding; (e) the proceeding is for the execution, as to property situate within Victoria, of the trusts of a written instrument of which the person to be served is a trustee and which ought to be executed according to the law of Victoria; r. 7.01 -- 64 of 641 -- Order 7 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 34 (f) the proceeding is one brought to enforce, rescind, dissolve, rectify, annul or otherwise affect a contract, or to recover damages or other relief in respect of the breach of a contract, and the contract— (i) was made within Victoria; (ii) was made by or through an agent carrying on business or residing within Victoria on behalf of a principal carrying on business or residing out of Victoria; or (iii) is governed by the law of Victoria; (g) the proceeding is brought in respect of a breach committed within Victoria of a contract wherever made, even though that breach was preceded or accompanied by a breach out of Victoria that rendered impossible the performance of that part of the contract which ought to have been performed within Victoria; (h) the proceeding is founded on a contract the parties to which have agreed that the Court shall have jurisdiction to entertain a proceeding in respect of the contract; (i) the proceeding is founded on a tort committed within Victoria; (j) the proceeding is brought in respect of damage suffered wholly or partly in Victoria and caused by a tortious act or omission wherever occurring; (k) an injunction is sought ordering the defendant to do or refrain from doing anything within Victoria, whether or not damages are also claimed in respect of a failure to do or the doing of that thing; r. 7.01 -- 65 of 641 -- Order 7 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 35 (l) the proceeding is properly brought against a person duly served within or out of Victoria and another person out of Australia is a necessary or proper party to the proceeding; (m) the proceeding is either brought by a mortgagee of property situate within Victoria (other than land) and seeks the sale of the property, the foreclosure of the mortgage or delivery by the mortgagor of possession of the property or brought by a mortgagor of property so situate (other than land) and seeks redemption of the mortgage, reconveyance of the property or delivery by the mortgagee of possession of the property, but does not seek, except so far as permissible under any other paragraph of this Rule, any personal judgment or order for the payment of any moneys due under the mortgage; (n) the proceeding is brought under the Civil Aviation (Carriers' Liability) Act 1959 of the Commonwealth. (2) In paragraph (1)— "mortgage" includes a charge or lien; "mortgagee" means a person entitled to, or interested in, a mortgage; "mortgagor" means a person entitled to, or interested in, property subject to a mortgage. 7.02 Indorsement on originating process (1) Originating process served on any defendant out of Australia in accordance with this Order shall, at the time of service on that defendant, contain an indorsement stating the facts and the particular paragraph of Rule 7.01 relied upon in support of such service. r. 7.02 -- 66 of 641 -- Order 7 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 36 (2) If the originating process does not contain the indorsement referred to in paragraph (1) at the time it is filed, the plaintiff, in accordance with paragraph (3), may amend the originating process to include the indorsement. (3) The originating process shall be taken to be amended upon the filing by the plaintiff of a copy of the originating process with the indorsement included. (4) Upon the filing of an amended copy of originating process under paragraph (3) or at any later time, the Prothonotary, on the request of the plaintiff, shall seal a sufficient number of copies of the originating process as amended for service and proof of service. 7.03 Mode of service out of Australia Originating process which is to be served out of Australia need not be served personally as long as it is served in accordance with the law of the country in which service is effected. 7.04 Leave to proceed where no appearance (1) Where no appearance is filed by a party served with originating process out of Australia, the Court may order that the plaintiff shall be at liberty to proceed if satisfied— (a) that the subject matter of the proceeding so far as it concerns that party is within Rule 7.01; and (b) that the originating process was duly served on that party. (2) An application for an order under paragraph (1) shall be supported by affidavit or other evidence showing the grounds on which the application is made. r. 7.03 -- 67 of 641 -- Order 7 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 37 7.05 Stay, setting aside service etc. (1) The Court may make an order of a kind referred to in Rule 8.09 on application by a party served with originating process out of Australia. (2) Without limiting paragraph (1), the Court may make an order under this Rule on the ground— (a) that service out of Australia is not authorised by these Rules; or (b) that Victoria is not a convenient forum for the trial of the proceeding. (3) The Court may make an order under this Rule— (a) before an application is made under Rule 7.04; or (b) before an order of the Court is made on such an application. 7.06 Service of other process by leave The Court, by order, may allow service out of Australia of the following— (a) originating process in a proceeding in relation to— (i) the wardship, custody, management or welfare of a minor; or (ii) the custody, management or welfare of a person who is incapable of managing his or her affairs; (b) an originating motion in a proceeding brought under any Act; (c) any summons, order or notice in any proceeding. r. 7.05 -- 68 of 641 -- Order 7 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 38 7.07 Service of counterclaim or third party notice (1) This Rule applies to— (a) a counterclaim against the plaintiff and another person joined as defendant under Rule 10.03 where the person joined is not already a party to the proceeding; and (b) a third party notice filed in accordance with Order 11. (2) A counterclaim or third party notice may be served out of Australia without leave where the claim made by the defendant in the counterclaim or third party notice is of such a kind that, if the claim were made by writ or other originating process, the originating process could be served out of Australia without order of the Court under Rule 7.01. (3) Where paragraph (2) does not apply, the Court may, by order, allow service out of Australia of a counterclaim or third party notice. 7.08 Application for leave (1) An application for leave under Rule 7.06 or 7.07 shall be supported by affidavit or other evidence showing the grounds upon which the application is made. (2) The Court may grant such leave if the case is a proper one for service out of Australia. (3) Upon making an order under Rule 7.06 or 7.07, the Court may give directions with respect to service and the time for filing an appearance or for attendance before the Court or otherwise. r. 7.07 -- 69 of 641 -- Order 7 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 39 (4) Where any document is served out of Australia by order of the Court made under Rule 7.06 or 7.07— (a) a copy of the order, a copy of any affidavit made in support of the application for the order; and (b) unless the Court otherwise orders, a copy of any exhibit referred to in the affidavit— shall be served with the document. PART 2—SERVICE IN FOREIGN COUNTRY 7.09 Application This Part applies to the service of any document for the purpose of a proceeding in the Court— (a) in a Convention country pursuant to a Convention; or (b) in such other country as the Attorney- General, by instrument filed in the proceeding, specifies. 7.10 Documents required A person (in this Part called "the applicant") requiring a document to be served in another country under this Part shall— (a) lodge with the Prothonotary— (i) the document to be served; (ii) unless English is an official language in the country concerned, a translation of the document in accordance with Rule 7.11; (iii) a copy of the document and of any translation; r. 7.09 -- 70 of 641 -- Order 7 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 40 (iv) such further copies of the document and of the translation as the Prothonotary directs; and (v) if any special manner of service is required, a request for service in that manner and, unless English is an official language of the country concerned, a translation of the request; and (b) file— (i) a copy of each of the documents mentioned in paragraph (a); and (ii) a request and undertaking in accordance with Rule 7.12. 7.11 Translation A translation of a document lodged under Rule 7.10 shall— (a) be a translation into an official language of the country in which service is required; and (b) bear a certificate of the translator, in that language, stating that it is an accurate translation of the document. 7.12 Request and undertaking (1) A request and undertaking filed under Rule 7.10 shall contain— (a) a request by the applicant to the Prothonotary that a sealed copy of the document to be served be transmitted to the country concerned for service on a specified person; (b) if the applicant requires service pursuant to a Convention, a reference to the Convention; and r. 7.11 -- 71 of 641 -- Order 7 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 41 (c) an undertaking by the solicitor for the applicant or, where there is no solicitor, by the applicant, to pay to the Prothonotary an amount equal to the expenses incurred in consequence of the request for service. (2) The Prothonotary may require the applicant or the applicant's solicitor to give security to the Prothonotary's satisfaction for the expenses referred to in paragraph (1)(c). 7.13 Procedure on lodgment and filing (1) Where documents are lodged and filed in accordance with Rule 7.10, the Prothonotary shall seal the documents lodged with the seal of the Court and shall send them to the Attorney-General for transmission for service, together with such letter of request, if any, as may be necessary. (2) A letter of request shall be in Form 7A. 7.14 Evidence of service Where the Prothonotary has sent documents to the Attorney-General in accordance with Rule 7.13, and afterwards a certificate purporting to be a certificate of a judicial authority or other responsible person in the country concerned or of a British or Australian consular authority in that country as to service or attempted service or non-service is filed, the certificate shall be evidence of the matters stated in the certificate. 7.15 Order for payment of expenses Where a person has given an undertaking in accordance with Rules 7.10 and 7.12, and does not within 14 days after service on that person of an account of expenses incurred in consequence of the request for service pay to the Prothonotary the amount of the expenses, the Court, on application by the Prothonotary, may— r. 7.13 -- 72 of 641 -- Order 7 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 42 (a) order the applicant or the applicant's solicitor (where the undertaking was given by the solicitor) or both of them to pay the amount of the expenses to the Prothonotary; and (b) stay the proceeding until payment so far as concerns the whole or any part of any claim for relief by the applicant. __________________ r. 7.15 -- 73 of 641 -- Order 8 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 43 ORDER 8 APPEARANCE 8.01 Application This Order applies to a proceeding commenced by writ or originating motion. 8.02 Appearance before taking step Except as provided by Rule 8.08 or 8.09 or by leave of the Court, a defendant shall not take any step in a proceeding unless the defendant has first filed an appearance. 8.03 Who to file appearance (1) Except as provided in Rule 15.02, a defendant may file an appearance by a solicitor or in person. (2) A corporation may file an appearance by any person duly authorised by it to so act. 8.04 Time for appearance Unless the Court otherwise orders, the time stated in the writ or originating motion for the defendant to file an appearance shall be— (a) where the originating process is to be served in Victoria, not less than 10 days after service; (b) where the originating process is to be served out of Victoria and in another part of Australia, 21 days after service; (c) where the originating process is to be served in New Zealand or in Papua New Guinea, not less than 28 days after service; (d) in any other case, not less than 42 days after service. r. 8.01 -- 74 of 641 -- Order 8 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 44 8.05 Mode of filing appearance (1) An appearance shall be filed by filing a notice of appearance in Form 8A. (2) Upon the filing of a notice of appearance the Prothonotary shall seal with the seal of the Court a sufficient number of copies of the notice for service. (3) The defendant shall, on the day the defendant files a notice of appearance, take an appropriate step in accordance with Rule 6.07(1) to serve a sealed copy of the notice on the plaintiff. (4) The Court may order the defendant to pay any costs of the plaintiff occasioned by the failure of the defendant to comply with paragraph (3). 8.06 Address for service of defendant (1) A notice of appearance shall state— (a) if the defendant appears by a solicitor, the address of the defendant and the name or firm and the business address within Victoria of the solicitor and also, if the solicitor is an agent of another, the name or firm and the business address of the principal; (b) if the defendant appears in person, the address of the defendant and, if that address is out of Victoria, an address of the defendant within Victoria. (2) The address for service of a defendant shall be— (a) where the defendant appears by a solicitor, the business address of the solicitor stated in the notice of appearance or, where the solicitor acts by an agent, the business address of the agent; r. 8.05 -- 75 of 641 -- Order 8 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 45 (b) where the defendant appears in person, the address of the defendant in Victoria stated in the notice of appearance. (3) Notwithstanding paragraphs (1) and (2), the address for service of the defendant duly stated in a notice of appearance to which the Service and Execution of Process Act 1992 of the Commonwealth applies shall be such address for service. (4) Where the address of a defendant stated in a notice of appearance is not genuine, the Court may set aside the appearance and allow the plaintiff to continue the proceeding as if the appearance had not been filed. 8.07 Late appearance (1) A defendant may file an appearance at any time, but after judgment an appearance shall not be filed without the leave of the Court. (2) A defendant who files an appearance after the time for appearance stated in the writ or originating motion shall, unless the Court otherwise orders, have the same time for serving a defence or for any other purpose as if the defendant had filed an appearance on the last day so stated. 8.08 Conditional appearance (1) A defendant may file a conditional appearance. (2) A notice of conditional appearance shall be in Form 8B. (3) A conditional appearance shall have effect for all purposes as an unconditional appearance, unless on application by the defendant the Court otherwise orders. r. 8.07 -- 76 of 641 -- Order 8 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 46 (4) Application under paragraph (3) shall be made by summons within 14 days after the day the conditional appearance is filed. 8.09 Setting aside writ or originating motion Notwithstanding Rule 8.08, the Court may exercise its jurisdiction to— (a) set aside a writ or originating motion or its service; (b) make an order under Rule 46.08; (c) stay a proceeding— on application made by the defendant before filing an appearance, whether conditional or not. __________________ r. 8.09 -- 77 of 641 -- Order 9 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 47 ORDER 9 JOINDER OF CLAIMS AND PARTIES 9.01 Joinder of claims A plaintiff may join any number of claims against a defendant whether the plaintiff makes the claims in the same or in different capacities and whether the claims are made against the defendant in the same or in different capacities. 9.02 Permissive joinder of parties Two or more persons may be joined as plaintiffs or defendants in any proceeding— (a) where— (i) if separate proceedings were brought by or against each of them, some common question of law or fact would arise in all the proceedings; and (ii) all rights to relief claimed in the proceeding (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions; or (b) where the Court, before or after the joinder, gives leave to do so. 9.03 Joinder of necessary parties (1) Except by order of the Court or as provided by or under any Act, where the plaintiff claims any relief to which any other person is entitled jointly with the plaintiff— (a) all persons so entitled shall be parties to the proceeding; and r. 9.01 -- 78 of 641 -- Order 9 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 48 (b) any person who does not consent to being joined as a plaintiff shall be made a defendant. (2) Where the plaintiff claims relief against a defendant who is liable jointly with some other person and also liable severally, that other person need not be made a defendant to the proceeding. (3) Where persons are liable jointly, but not severally, under a contract, and the plaintiff in respect of that contract claims against some but not all of those persons, the Court may stay the proceeding until the other persons so liable are added as defendants. (4) The Court may make an order under paragraph (1) before or after the non-joinder. 9.04 Joinder inconvenient Notwithstanding Rules 9.01 and 9.02, where any joinder of claims or of parties may embarrass or delay the trial of the proceeding or cause prejudice to any party or is otherwise inconvenient, the Court may order that— (a) there be separate trials; (b) any claim be excluded; (c) any party be compensated by an award of costs or otherwise for being required to attend, or be relieved from attending, any part of a trial in which that party has no interest; (d) any person made a party cease to be a party on condition that that party be bound by the determination of the questions in the proceeding or without any such condition. r. 9.04 -- 79 of 641 -- Order 9 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 49 9.05 Effect of misjoinder or non-joinder of party A proceeding shall not be defeated by reason of the misjoinder or non-joinder of any party or person, and the Court may determine all questions in the proceeding so far as they affect the rights and interests of the parties. 9.06 Addition, removal, substitution of party At any stage of a proceeding the Court may order that— (a) any person who is not a proper or necessary party, whether or not that person was one originally, cease to be a party; (b) any of the following persons be added as a party, namely— (i) a person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon; or (ii) a person between whom and any party to the proceeding there may exist a question arising out of, or relating to, or connected with, any claim in the proceeding which it is just and convenient to determine as between that person and that party as well as between the parties to the proceeding; (c) a person to whom paragraph (b) applies be substituted for one to whom paragraph (a) applies. r. 9.05 -- 80 of 641 -- Order 9 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 50 9.07 Procedure for addition of party (1) A person shall not be added as a plaintiff without that person's consent signified in writing or in such other manner as the Court orders. (2) Unless the Court otherwise orders, an application by a person for an order adding the person as a party shall be supported by an affidavit showing the person's interest in the questions in the proceeding or the question to be determined as between that person and any party to the proceeding. (3) Without limiting Rule 9.06(b), where a person not a party to a proceeding for the recovery of land is in possession by himself or herself or by a tenant of the whole or any part of the land, the Court may order that he be added as a defendant. 9.08 Defendant dead at commencement of proceeding (1) Where a cause of action survives against the estate of a deceased person, a person wishing to obtain a judgment in respect of that cause of action may, if no grant of representation has been made, bring a proceeding against the estate of the deceased. (2) Without limiting paragraph (1), a proceeding brought against "the estate of A.B. deceased" shall be taken to have been brought against the deceased's estate in accordance with that paragraph. (3) A proceeding commenced naming as defendant a person who was dead when the proceeding commenced shall, if the cause of action survives and no grant of representation had been made at the time the proceeding commenced, be taken to have been commenced against the estate of the deceased in accordance with paragraph (1). r. 9.07 -- 81 of 641 -- Order 9 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 51 (4) A proceeding naming as defendant a person who was dead when the proceeding commenced shall, if the cause of action survives and a grant of representation had been made at the time the proceeding commenced, be taken to have been commenced against the personal representative of the deceased as representing the estate of the deceased. (5) In a proceeding within paragraph (1) or (3), the Court— (a) may— (i) appoint a person to represent the estate of the deceased for the purpose of the proceeding; or (ii) if a grant of representation has been made since the commencement of the proceeding, order that the personal representative of the deceased be made a party to the proceeding; and (b) may order that the proceeding be carried on against the person so appointed or against the personal representative, as if that person or representative had been substituted for the estate. (6) Where, after the commencement of a proceeding within paragraph (1) or (3), the Incorporated Nominal Defendant has been appointed administrator ad litem of the estate of the deceased person under section 158 of the Transport Accident Act 1986, the Court may for the purpose of paragraph (5), if the cause of action falls within section 158 of that Act, order that the Incorporated Nominal Defendant be appointed to represent the estate of the deceased. r. 9.08 -- 82 of 641 -- Order 9 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 52 (7) In any proceeding within paragraph (4), the Court may order that the personal representative of the deceased be made a party, and that the proceeding be carried on against the personal representative as representing the estate of the deceased. (8) An application for an order under paragraph (5) or (7) shall be made during the period of validity for service of the writ or other originating process, unless the Court otherwise orders. (9) Before making an order under paragraph (5) or (6) the Court may require notice to be given to— (a) any insurer of the deceased who has an interest in the proceeding; and (b) any person having an interest in the estate. (10) Where no grant of representation has been made any judgment or order given or made in the proceeding shall bind the estate of the deceased to the same extent as it would have been bound if a grant had been made and a personal representative of the deceased had been a party to the proceeding. (11) In this Rule "grant of representation" means a grant of probate or administration in Victoria or the resealing of a foreign grant in Victoria. 9.09 Change of party on death, bankruptcy (1) Where a party to a proceeding dies, but the cause of action survives, or where a party becomes bankrupt, the proceeding shall not abate by reason of the death or bankruptcy, but may be carried on in accordance with paragraph (2). (2) Where at any stage of a proceeding the interest or liability of any party is assigned or transmitted to or devolves upon some other person, the Court may order that the other person be added as a party to the proceeding or made a party in r. 9.09 -- 83 of 641 -- Order 9 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 53 substitution for the original party and that the proceeding be carried on as so constituted. (3) Unless the Court otherwise directs, the person on whose application an order is made under paragraph (2) shall serve the order on every party to the proceeding and on every person who ceases to be a party or becomes a party as plaintiff by virtue of the order, and in the case of a person who becomes a defendant, shall serve that person personally with the order and with the writ or other originating process sealed in accordance with Rule 5.11. (4) A person upon whom originating process is served in accordance with paragraph (3) shall file an appearance in the proceeding within such time as the Court directs. (5) Where an order is made without notice to a person on whom the order is served, an application by that person to set aside or vary the order shall be made within 10 days after service. 9.10 Failure to proceed after death of party (1) Where a party dies, and a cause of action in the proceeding survives, but no order is made under Rule 9.09(2) substituting a personal representative of the deceased party as party, the Court, on application by a party or by a person to whom liability on the cause of action survives on the death, may order that unless an order for substitution is made within a specified time the proceeding be dismissed so far as concerns relief on the cause of action for or against the person to whom the cause of action or the liability thereon survives on the death. r. 9.10 -- 84 of 641 -- Order 9 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 54 (2) On making an order under paragraph (1), the Court may, whether or not a grant of representation within the meaning of Rule 9.08(11) has been made, direct that if the proceeding is dismissed by virtue of the order, costs of the proceeding be awarded as follows— (i) if the plaintiff dies, to the defendant against the personal representative of the deceased out of the estate of the deceased; (ii) if the defendant dies, to the personal representative of the deceased against the plaintiff. (3) Where the plaintiff dies, the Court shall not make an order under paragraph (1) unless due notice of the application for it has been given to— (a) the personal representative, if any, of the deceased; and (b) any other person having an interest in the estate of the deceased who, in the opinion of the Court, should be notified. (4) Where a defendant serves a counterclaim, this Rule shall apply, with any necessary modification, as if the plaintiff were the defendant and the defendant were the plaintiff. 9.11 Amendment of proceedings after change of party (1) Where an order is made under Rule 9.06 or 9.08, the writ or other originating process filed in the Court shall, subject to Rule 27.02(5) and (6), be amended accordingly within the time specified in the order, and otherwise within 10 days after the making of the order, and a reference to the order, the date of the order and the date on which the amendment is made shall be indorsed upon such originating process. r. 9.11 -- 85 of 641 -- Order 9 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 55 (2) The filing of a copy of the originating process amended and indorsed as required by paragraph (1) shall be a sufficient compliance with that paragraph. (3) Where an order is made under Rule 9.06 or 9.08 adding or substituting a person as defendant— (a) the proceeding against the new defendant commences upon the amendment of the filed originating process in accordance with paragraph (1) or (2); (b) the plaintiff shall serve the amended originating process on that defendant within such time as the Court directs, and, unless the Court otherwise orders, it shall be served personally; (c) unless otherwise ordered, where the new defendant is an added defendant, the proceeding shall be continued as if the new defendant were an original defendant, and where the new defendant is a substituted defendant, all things done in the course of the proceeding before it was commenced against the new defendant shall have effect in relation to the new defendant as they had in relation to the old defendant, except that the filing of appearance by the old defendant shall not dispense with the filing of appearance by the new. 9.12 Consolidation or trial together (1) Where two or more proceedings are pending in the Court, and— (a) some common question of law or fact arises in both or all of them; (b) the rights to relief claimed therein are in respect of or arise out of the same transaction or series of transactions; or r. 9.12 -- 86 of 641 -- Order 9 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 56 (c) for any other reason it is desirable to make an order under this Rule— the Court may order the proceedings to be consolidated, or to be tried at the same time or one immediately after the other, or may order any of them to be stayed until after the determination of any other of them. (2) Any order for the trial together of two or more proceedings or for the trial of one immediately after the other, shall be subject to the discretion of the trial Judge. 9.13 Conduct of proceeding The Court may give the conduct of the whole or any part of a proceeding to such person as it thinks fit. __________________ r. 9.13 -- 87 of 641 -- Order 10 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 57 ORDER 10 COUNTERCLAIM 10.01 Application of Order This Order applies only to a proceeding commenced by writ and to a proceeding in respect of which an order has been made under Rule 4.07(1). 10.02 When counterclaim allowed (1) A defendant who has a claim against the plaintiff may counterclaim in the proceeding. (2) Rule 9.01 applies to a counterclaim as if the plaintiff were the defendant and the defendant were the plaintiff. (3) A defendant who counterclaims shall plead the defendant's defence and the counterclaim in one document called a defence and counterclaim. 10.03 Counterclaim against plaintiff and another person A defendant may join with the plaintiff as defendant to the counterclaim any other person, whether a party to the proceeding or not, who, if the defendant were to bring a separate proceeding, could be properly joined with the plaintiff as a party in accordance with Rule 9.02. 10.04 Procedure after counterclaim against another person (1) Where a defendant joins a person as defendant to the counterclaim under Rule 10.03, the defence and counterclaim shall contain a second title of the proceeding showing who is plaintiff to the counterclaim and who are defendants to the counterclaim. r. 10.01 -- 88 of 641 -- Order 10 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 58 (2) The defendant shall serve on the person joined as defendant to the counterclaim a copy of the defence and counterclaim as follows— (a) where the person so joined is already a party to the proceeding, the copy shall be served within the time fixed by Rule 14.04 for serving a defence; (b) where the person joined is not already a party, the copy shall be served personally and, unless the Court otherwise orders, shall be served within 30 days after the expiration of the time fixed by Rule 14.04 for serving a defence. (3) The person joined as a defendant to the counterclaim shall, upon service of a copy of the defence and counterclaim, if not already a party, become a party and be in the same position as if that person had been sued as defendant in the ordinary way by the defendant making the counterclaim. (4) Without limiting paragraph (3), where the person joined as defendant to the counterclaim is not already a party to the proceeding, Orders 8, 11, 14 and 21 shall apply as if— (a) the counterclaim were a writ the indorsement of claim on which constituted a statement of claim in accordance with Rule 5.04; (b) the defendant making the counterclaim were a plaintiff in the party; and (c) the person joined were a defendant in the proceeding. (5) A counterclaim served on a defendant to the counterclaim who is not already a party shall commence with a notice in Form 10A. r. 10.04 -- 89 of 641 -- Order 10 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 59 (6) A notice of appearance by a defendant to a counterclaim who is not already a party shall be in Form 10B. 10.05 Trial of counterclaim A counterclaim shall be tried at the trial of the claim of the plaintiff unless the Court otherwise orders. 10.06 Counterclaim inconvenient Notwithstanding Rules 10.02 and 10.03, where a counterclaim may embarrass or delay the trial of the claim of the plaintiff or cause prejudice to any party or otherwise cannot conveniently be tried with that claim, the Court may— (a) order separate trials of the counterclaim and the claim of the plaintiff; (b) order that any claim included in the counterclaim be excluded; (c) strike out the counterclaim without prejudice to the right of the defendant to assert the claim in a separate proceeding; (d) order that any person joined as defendant to the counterclaim cease to be a party to the counterclaim. 10.07 Stay of claim Where the defendant by the defendant's defence admits the claim of the plaintiff and counterclaims, the Court may stay the original proceeding until the counterclaim is disposed of. r. 10.05 -- 90 of 641 -- Order 10 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 60 10.08 Counterclaim on stay etc., of original proceeding A counterclaim may be prosecuted notwithstanding— (a) that judgment is given for the plaintiff in the original proceeding; or (b) that the original proceeding is stayed, discontinued or dismissed. 10.09 Judgment for balance Where the plaintiff succeeds on the claim and the defendant succeeds on the counterclaim and a balance in favour of one of them results, the Court may give judgment for the balance. __________________ r. 10.08 -- 91 of 641 -- Order 11 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 61 ORDER 11 THIRD PARTY PROCEDURE 11.01 Claim by third party notice Where a defendant claims as against a person not already a party to the proceeding (in this Order called "the third party")— (a) any contribution or indemnity; (b) any relief or remedy relating to or connected with the original subject matter of the proceeding and substantially the same as some relief or remedy claimed by the plaintiff; or (c) that any question relating to or connected with the original subject matter of the proceeding should be determined not only as between the plaintiff and the defendant but also as between either or both of them and the third party— the defendant may join the third party as a party to the proceeding and make the claim against that third party by filing and serving a third party notice. 11.02 Statement of claim on third party notice A third party notice shall be in Form 11A and shall be indorsed with a statement of claim. 11.03 Time for appearance (1) A third party notice shall state a time within which the third party may file an appearance in the proceeding. r. 11.01 -- 92 of 641 -- Order 11 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 62 (2) The time under paragraph (1) shall be— (a) where the notice is to be served within Victoria—not less than 10 days after service; (b) where the notice is to be served out of Victoria—within the time limited by Rule 8.04(b), (c) or (d) in the case of appearance by a defendant to a writ, whichever is appropriate, or within the time limited by any order of the Court authorising service of the notice. 11.04 Filing and service of third party notice (1) A claim by third party notice shall be commenced by filing a third party notice in the Court whereupon the third party shall become a party to the proceeding. (2) A third party notice shall be filed and served on the third party in the same manner as originating process is filed and served on a defendant. 11.05 Time for third party notice (1) In a proceeding commenced by writ or a proceeding in respect of which an order has been made under Rule 4.07(1) a defendant may not file a third party notice until the defendant has first served a defence. (2) A defendant may file a third party notice— (a) within 30 days after the time limited for the service of a defence; or (b) at any time with the leave of the Court or the consent in writing of the plaintiff and any other party who has appeared. r. 11.04 -- 93 of 641 -- Order 11 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 63 11.06 Leave to file third party notice An application for leave to file a third party notice shall be made on notice to the plaintiff but the Court may direct notice to be given to any other party who has appeared. 11.07 Other requirements for service (1) A third party notice shall be served on the third party within 60 days after it is filed. (2) Notwithstanding paragraph (1), the Court may fix another period for the service of a third party notice either— (a) before the notice is filed; or (b) at the time it grants leave under Rule 11.05(2) to file the notice. (3) Where a third party notice has not been served on the third party, the Court from time to time by order may extend the period for service of the notice for such further period it thinks fit. (4) An order may be made under paragraph (3) before or after expiry of the period for service. (5) At the time of service of a third party notice on a third party there shall also be served a copy of— (a) any order or consent under Rule 11.05(2); (ab) any order under paragraph (2) of this Rule made before the third party notice was filed fixing a period for service of the notice; (ac) any order under paragraph (3) of this Rule; (b) the writ or other originating process; (c) any pleadings or affidavits filed and served in the proceeding. r. 11.06 -- 94 of 641 -- Order 11 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 64 (6) Within the period for service of the third party notice on the third party a copy of the notice shall be served— (a) on the plaintiff; and (b) on any other party who has appeared. (7) If a copy of the third party notice is not served in accordance with paragraph (6), the Court, on application by the plaintiff or the third party, may order that the questions between the plaintiff and the defendant be tried before and separately from the questions between the defendant and the third party. 11.08 Appearance by third party (1) A third party may file an appearance— (a) within the time limited for appearance; or (b) within such further time as the Court may allow. (2) A third party who files an appearance shall, on the same day, serve a sealed copy of the notice of appearance on the plaintiff. (3) Rules 8.05 and 8.06 shall apply, with any necessary modification, to an appearance by a third party under this Rule. 11.09 Defence of third party (1) A third party who files an appearance shall serve a defence to the statement of claim indorsed on the third party notice within 30 days after filing the appearance. (2) The third party may serve a defence to the statement of claim of the plaintiff by which the third party disputes the liability to the plaintiff of the defendant by whom the third party was joined on any ground not raised by that defendant in the defendant's defence. r. 11.08 -- 95 of 641 -- Order 11 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 65 (3) Rules 14.05 to 14.10 shall apply, with any necessary modification, as if the claim by third party notice were a proceeding commenced by writ. (4) Where a third party files an appearance, the defendant by whom the third party was joined shall serve on the third party a copy of any pleading that may from time to time thereafter be served between the plaintiff and that defendant. 11.10 Counterclaim by third party (1) A third party who has a claim against the defendant may assert the claim in the proceeding by way of counterclaim and Rule 10.02 shall apply as if the claim by third party notice were a proceeding commenced by writ. (2) A third party who counterclaims may join the plaintiff as defendant to the counterclaim along with the defendant if the plaintiff and defendant could be joined properly as defendants in accordance with Rule 9.02 in a separate proceeding brought against them by the third party. 11.11 Default by third party (1) Where at the time any judgment is entered or given for the plaintiff against the defendant by whom the third party was joined the third party has not filed an appearance or after appearance has not served a defence, and the time limited for filing an appearance or serving a defence has expired— (a) the third party— (i) shall be taken to admit any claim stated in the third party notice; and r. 11.10 -- 96 of 641 -- Order 11 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 66 (ii) shall be bound by the judgment between the plaintiff and the defendant insofar as it is relevant to any claim or question stated in the notice; (b) the defendant may at any time after satisfaction of that judgment or, with the leave of the Court, before satisfaction, enter judgment against the third party— (i) for any contribution or indemnity claimed in the notice; and (ii) with the leave of the Court, for any other relief or remedy claimed therein. (2) If a third party or the defendant by whom the third party was joined fails to serve any pleading within the time limited, the Court may give such judgment for the party not in default or make such order it thinks fit. (3) The Court may set aside or vary any judgment or order under paragraph (1)(b) or (2). 11.12 Discovery and trial Where the third party files an appearance— (a) the third party and the defendant by whom the third party was joined may have discovery of one another; and (b) unless the Court otherwise orders— (i) the third party may attend and take part at the trial of the proceeding; (ii) at the trial the questions between the defendant and the third party shall be tried concurrently with the questions between the plaintiff and the defendant; and (iii) the third party shall be bound by the result of the trial. r. 11.12 -- 97 of 641 -- Order 11 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 67 11.13 Third party directions (1) Where the third party files an appearance, the Court may make any order or give any direction as follows— (a) where the liability of the third party to the defendant by whom the third party was joined as third party is established, give judgment for that defendant against the third party; (b) order that any claim or question stated in the third party notice be tried in such manner as it directs; (c) give the third party leave— (i) to defend the proceeding, either alone or jointly with any defendant; or (ii) to attend and take part at the trial; (d) generally make such orders and give such directions— (i) as are necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon; and (ii) as to the extent to which the third party is to be bound by any judgment or decision in the proceeding. (2) The Court— (a) may make any order or give any direction under paragraph (1) either before or after any judgment in the proceeding has been entered or given for the plaintiff against the defendant; and (b) may at any time vary or rescind any such order or direction. r. 11.13 -- 98 of 641 -- Order 11 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 68 11.14 Judgment between defendant and third party (1) Where a third party has been joined under this Order, the Court, at or after the trial of the proceeding or on its determination otherwise than by trial, may give judgment for the defendant by whom the third party was joined against the third party or for the third party against that defendant. (2) Unless the Court otherwise orders, where judgment is given for the plaintiff against the defendant and judgment is given for that defendant against a third party, the judgment against the third party shall not be enforced until the judgment against the defendant has been satisfied. 11.15 Claim against another party (1) Where a party claims as against another party to the proceeding any relief of the kind described in Rule 11.01, the party may make the claim against the other party by filing and serving a notice in accordance with this Rule— (a) within 60 days after the service on the party of the document in the proceeding by which the claim in respect of which the notice is served was made; or (b) if when the document was served the other party was not a party, then within 60 days after the party became a party. (2) Paragraph (1) shall not apply where the claim could be made by counterclaim in the proceeding. (3) No appearance to a notice under paragraph (1) shall be necessary if the party on whom it is served has filed an appearance in the proceeding or is a plaintiff, but otherwise this Order shall apply, with any necessary modification, as if— r. 11.14 -- 99 of 641 -- Order 11 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 69 (a) the defendant had filed and served a third party notice under Rule 11.01; and (b) the party on whom the notice is served were a third party joined under that Rule. (4) Except as provided by paragraph (5), a notice under paragraph (1) shall, with any necessary modification— (a) be in accordance with Form 11A; and (b) be indorsed with a statement of claim. (5) Where a party claims against another party to the proceeding contribution pursuant to Part IV of the Wrongs Act 1958, a notice under paragraph (1) shall be in accordance with Form 11B. 11.16 Fourth and subsequent parties (1) Where a third party has filed an appearance this Order shall apply, with any necessary modification, as if the third party were a defendant. (2) Where a person joined as a party (in this Order called a "fourth party") by a third party under this Order has filed an appearance, this Order as applied by this Rule shall have effect as regards such further person and any other further person or persons so joined and so on successively. (3) A third or subsequent party may not make a claim against another person whether that person is a party to the proceeding or not by notice under this Order without the leave of the Court. 11.17 Counterclaim Where a defendant has served a counterclaim, this Order shall apply, with any necessary modification, as if the defendant were the plaintiff and the plaintiff were the defendant. __________________ r. 11.16 -- 100 of 641 -- Order 12 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 70 ORDER 12 INTERPLEADER 12.01 Definitions In this Order, unless the context or subject matter otherwise requires— "claimant" means a person making a claim to or in respect of property in dispute; "execution creditor" means a person for whom a warrant is issued; "property in dispute" means any debt or other property which is the subject of proceedings under this Order; "sheriff" includes a person to whom a warrant of execution is directed; "stakeholder" means an applicant under Rule 12.02; "warrant" means warrant of execution under these Rules. 12.02 Stakeholder's interpleader (1) Where— (a) a person is under a liability (otherwise than as a sheriff) in respect of a debt or other personal property; and (b) the person is sued or expects to be sued in any court for or in respect of the debt or property by two or more persons making adverse claims to or in respect of the debt or property— the Court may, on application by that person, grant relief by way of interpleader. r. 12.01 -- 101 of 641 -- Order 12 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 71 (2) Where a stakeholder is sued in a proceeding in the Court for or in respect of the property in dispute, an application under paragraph (1) shall be made by summons in the proceeding. (3) A summons under paragraph (2)— (a) shall be served on each party to the proceeding who is a claimant; and (b) shall be served personally on each claimant who is not a party. (4) Where paragraph (2) does not apply, an application under paragraph (1) shall be commenced by originating motion in which all claimants are joined as defendants. 12.03 Sheriff's interpleader (1) Where a sheriff takes or intends to take any personal property under a warrant, a person making a claim to or in respect of the property or the proceeds or value of the property may give notice in writing of that person's claim to the sheriff. (2) A notice of claim under paragraph (1) shall— (a) state the name and address of the claimant, which address shall be the address for service; (b) identify each item of personal property the subject of the claim; and (c) state the grounds of the claim. 12.04 Sheriff's summons to state claim (1) Where a person who is entitled to give notice under Rule 12.03 does not, within a reasonable time after having knowledge of the facts, give notice under that Rule, the Court may, on application by the sheriff, restrain the commencement or stay or restrain the continuance r. 12.03 -- 102 of 641 -- Order 12 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 72 by that person of proceedings in any court against the sheriff for or in respect of anything done by the sheriff in execution of the warrant after the time when that person might reasonably have given notice under the Rule. (2) A sheriff may apply for an order under paragraph (1) by summons in the proceeding in which the warrant is issued and, if a sheriff so applies, the sheriff shall serve the summons personally on the person against whom the order is sought. 12.05 Notice to execution creditor (1) On being given a notice of claim under Rule 12.03A, a sheriff shall serve forthwith— (a) a copy of the notice; and (b) a notice in accordance with Form 12A on the execution creditor. (2) The execution creditor may serve on the sheriff notice in writing that the execution creditor admits or disputes the claim. 12.06 Admission of claim Where an execution creditor admits a claim by notice under Rule 12.05(2)— (a) the execution creditor shall not be liable for any fees or expenses incurred by the sheriff under the warrant after the notice is given; (b) the sheriff shall withdraw from possession of the property claimed; r. 12.05 -- 103 of 641 -- Order 12 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 73 (c) the Court, on application by the sheriff, may restrain the commencement or stay or may restrain the continuance by the person whose claim is admitted of proceedings in any court against the sheriff for or in respect of anything done by the sheriff in execution of the warrant. 12.07 Interpleader summons (1) Where under Rule 12.05 a sheriff has served a notice of claim and a notice in accordance with Form 12A on the execution creditor, the sheriff, by summons in the proceeding in which the warrant is issued may apply to the Court for relief by way of interpleader if the execution creditor— (a) does not within five days after the service of the notices under Rule 12.05 serve on the sheriff notice in writing that the execution creditor admits the claim; or (b) within that period of five days serves on the sheriff notice in writing that the execution creditor disputes the claim— and the Court may, if the claim has not been withdrawn, grant relief by way of interpleader. (2) A summons under paragraph (1)— (a) shall be served on each party to the proceeding who claims an interest in the property in dispute; and (b) shall be served personally on each claimant who is not a party. r. 12.07 -- 104 of 641 -- Order 12 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 74 12.08 Powers of Court On application for relief by way of interpleader the Court may— (a) where a proceeding in the Court is pending in which the applicant is sued for or in respect of any of the property in dispute— (i) order that any claimant be added as a defendant in that proceeding in addition to or in substitution for the applicant; or (ii) order that the proceeding be stayed or dismissed; (b) order that a question between the claimants be stated and tried and direct which of the claimants is to be plaintiff and which defendant; (c) where proceedings in any other court are pending in which the applicant is sued for or in respect of any of the property in dispute, restrain the further continuance of those proceedings; (d) order the applicant— (i) to pay or transfer any of the property in dispute into court; or (ii) otherwise to dispose of any of the property; (e) where a claimant claims to be entitled by way of security for debt to any of the property in dispute, make orders for the sale of any of the property and for the application of the proceeds of sale; (f) summarily determine any question of fact or law arising on the application; and (g) make such order or give such judgment it thinks fit. r. 12.08 -- 105 of 641 -- Order 12 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 75 12.09 Default by claimant (1) Where— (a) a claimant has been given due notice of the hearing of an application for relief by way of interpleader and does not attend on the hearing; or (b) a claimant does not comply with an order made on such an application— the Court may order that the claimant and all persons claiming under the claimant be barred from prosecuting the claimant's claim against the applicant and all persons claiming under the applicant. (2) An order under paragraph (1) shall not affect the rights of the claimants as between themselves. 12.10 Neutrality of applicant (1) Where a stakeholder applies for relief by way of interpleader, the Court may dismiss the application or give judgment against the applicant unless the Court is satisfied that the applicant— (a) claims no interest in the property in dispute except for charges or costs; and (b) does not collude with any claimant. (2) Where a sheriff applies for relief by way of interpleader, the Court— (a) may require the sheriff to satisfy the Court on the matters mentioned in paragraph (1); and (b) may, if not satisfied on those matters, dismiss the application. (3) Nothing in this Rule shall affect the power of the Court in other cases to dismiss the application or to give judgment against the applicant. r. 12.09 -- 106 of 641 -- Order 12 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 76 12.11 Order in several proceedings (1) Where an application for relief by way of interpleader is made and several proceedings are pending in the Court for or in respect of any of the property in dispute, the Court may make an order in any two or more of those proceedings. (2) An order made under paragraph (1) shall be entitled in all the proceedings in which it is made and shall be binding on all the parties to them. 12.12 Trial of interpleader question (1) Order 49 shall apply, with any necessary modification, to the trial of an interpleader question. (2) On the trial of an interpleader question the Court may finally determine all questions arising on the application for relief by way of interpleader. (3) An interpleader question, including any other question arising on the application for relief, may, with the consent of all parties, be tried by a Master. __________________ r. 12.11 -- 107 of 641 -- Order 13 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 77 ORDER 13 PLEADINGS 13.01 Formal requirements (1) Every pleading shall bear on its face— (a) the description of the pleading; and (b) the date on which it is served. (2) A pleading shall be divided into paragraphs numbered consecutively, and each allegation so far as practicable shall be contained in a separate paragraph. (3) A pleading which is settled by counsel shall be signed by that counsel, and if it is not so settled, it shall be signed by the solicitor for the party, or if there is none, by the party. 13.02 Content of pleading (1) Every pleading shall— (a) contain in a summary form a statement of all the material facts on which the party relies, but not the evidence by which those facts are to be proved; (b) where any claim, defence or answer of the party arises by or under any Act, identify the specific provision relied on; (c) state specifically any relief or remedy claimed. (2) A party may by that party's pleading— (a) raise a point of law; (b) plead a conclusion of law if the material facts supporting the conclusion are pleaded. r. 13.01 -- 108 of 641 -- Order 13 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 78 13.03 Document or conversation The effect of any document or the purport of any conversation, if material, shall be pleaded as briefly as possible, and the precise words of the document or conversation shall not be pleaded unless those words are themselves material. 13.04 Fact presumed true A party need not plead any fact if it is presumed by law to be true or the burden of disproving it lies on the opposite party unless the other party has specifically denied it in that party's pleading. 13.05 Condition precedent An allegation of the performance or occurrence of any condition precedent necessary for the claim or defence of a party shall be implied in that party's pleading. 13.06 Implied contract or relation Where it is alleged that a contract or relation between any persons is to be implied from a series of letters or conversations or other circumstances, it shall be sufficient to allege the contract or relation as a fact, and to refer generally to the letters, conversations or circumstances without setting them out in detail. 13.07 Matter which must be pleaded (1) A party shall in any pleading subsequent to a statement of claim plead specifically any fact or matter which— (a) the party alleges makes any claim or defence of the opposite party not maintainable; or (b) if not pleaded specifically, might take the opposite party by surprise; or (c) raises questions of fact not arising out of the preceding pleading. r. 13.03 -- 109 of 641 -- Order 13 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 79 (2) In a proceeding for the recovery of land— (a) the indorsement of claim on the writ or, if that indorsement does not constitute a statement of claim, the statement of claim shall describe the land so that it is physically identifiable; (b) the defendant shall plead specifically every ground of defence on which he relies and a plea that he is in possession of the land by himself or herself or his tenant is not sufficient. (3) A claim for exemplary damages shall be specifically pleaded together with the facts on which the party pleading relies. 13.08 Subsequent fact A party may plead any fact or matter which has arisen at any time, whether before or since the commencement of the proceeding. 13.09 Inconsistent pleading (1) A party may in any pleading make inconsistent allegations of fact if the pleading makes it clear that the allegations are pleaded in the alternative. (2) A party shall not in any pleading make any allegation of fact, or raise any new claim, inconsistent with any allegation made or claim raised in a previous pleading by that party. (3) Paragraph (2) shall not affect the right of a party to amend, or apply for leave to amend, that party's previous pleading so as to plead the allegations or claims in the alternative. r. 13.08 -- 110 of 641 -- Order 13 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 80 13.10 Particulars of pleading (1) Every pleading shall contain the necessary particulars of any fact or matter pleaded. (2) Without limiting paragraph (1), particulars shall be given if they are necessary— (a) to enable the opposite party to plead; or (b) to define the questions for trial; or (c) to avoid surprise at trial. (3) Without limiting paragraph (1), every pleading shall contain particulars of any— (a) misrepresentation, fraud, breach of trust, wilful default or undue influence; or (b) disorder or disability of the mind, malice, fraudulent intention or other condition of the mind, including knowledge or notice— which is alleged. (4) The pleading of a party who claims damages for bodily injury shall state— (a) particulars, with dates and amounts, of all earnings lost in consequence of the injury complained of; (b) particulars of any loss of earning capacity resulting from the injury; (c) the date of the party's birth; (d) the name and address of each of the party's employers commencing from the day being 12 months before the party sustained the injury, the time of commencement and the duration of each employment and the total net amount, after deduction of tax, that was earned in each employment. r. 13.10 -- 111 of 641 -- Order 13 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 81 (5) In a proceeding for libel the indorsement of claim on the writ or, if that indorsement does not constitute a statement of claim, the statement of claim shall state sufficient particulars to identify the publication in respect of which the proceeding is commenced. (6) Particulars of debt, damages or expenses which exceed three folios shall be set out in a separate document referred to in the pleading and the pleading shall state whether the document has already been served and, if so, when, or is to be served with the pleading. 13.11 Order for particulars (1) The Court may order a party to serve on any other party particulars or further and better particulars of any fact or matter stated in the party's pleading or in an affidavit filed on that party's behalf ordered to stand as a pleading. (2) The Court shall not make an order under paragraph (1) before service of the defence unless the order is necessary or desirable— (a) to enable the defendant to plead; or (b) for some other special reason. (3) The Court may refuse to make an order under paragraph (1) if the party applying for the order did not first apply by letter for the particulars the party requires. 13.12 Admission and denials (1) Except as provided in paragraph (4), every allegation of fact in any pleading shall be taken to be admitted unless it is denied specifically or by necessary implication or is stated to be not admitted in the pleading of the opposite party, or unless a joinder of issue under Rule 13.13 operates as a denial of it, and a general denial of r. 13.11 -- 112 of 641 -- Order 13 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 82 the allegations, or a general statement that they are not admitted, shall not be sufficient. * * * * * (3) Where the party pleading intends to prove facts which are different to those pleaded by the opposite party, it shall not be sufficient for the party merely to deny or not to admit the facts so pleaded, but the party shall plead the facts the party intends to prove. (4) Any allegation that a party has suffered damage and any allegation as to the amount of damages shall be taken to be denied unless specifically admitted. 13.13 Denial by joinder of issue (1) No reply or subsequent pleading merely joining issue shall be served. (2) At the close of pleadings a joinder of issue on the pleading last served shall be implied. (3) No joinder of issue, express or implied, shall be made on a statement of claim or counterclaim. (4) A joinder of issue shall operate as a denial of every material allegation of fact made in the pleading upon which issue is joined unless, in the case of an express joinder of issue, any such allegation is excepted from the joinder and is stated to be admitted, in which case the joinder of issue shall operate as a denial of every other allegation. r. 13.13 -- 113 of 641 -- Order 13 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 83 13.14 Money claim as defence Where a defendant has a claim against a plaintiff for the recovery of a debt or damages, the claim may be relied on as a defence to the whole or part of a claim made by the plaintiff for the recovery of a debt or damages and may be included in the defence and set off against the plaintiff's claim, whether or not the defendant also counterclaims for that debt or damages. 13.15 Counterclaim This Order shall apply, with any necessary modification— (a) to a counterclaim as if it were a statement of claim; and (b) to a defence to counterclaim as if it were a defence. __________________ r. 13.14 -- 114 of 641 -- Order 14 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 84 ORDER 14 SERVICE OF PLEADINGS 14.01 Statement of claim indorsed on writ Where the indorsement of claim on a writ constitutes a statement of claim in accordance with Rule 5.04, no statement of claim shall be served. 14.02 Statement of claim not indorsed on writ Where the indorsement of claim on a writ does not constitute a statement of claim in accordance with Rule 5.04 and a defendant files an appearance, the plaintiff shall serve a statement of claim on that defendant within 30 days after the defendant's appearance, unless the Court otherwise orders. 14.03 Alteration of claim as indorsed on writ (1) Where a statement of claim is served in a proceeding commenced by writ, the plaintiff may therein alter, modify or extend the claim as indorsed on the writ without amendment of the indorsement. (2) The Court may, by order, allow the plaintiff to serve a statement of claim the effect of which will be to add a new cause of action to or substitute a new cause of action for a cause of action disclosed in the writ. (3) Where the Court makes an order under paragraph (2), it may further order that the plaintiff shall amend the indorsement of claim on the writ to make it conform to the statement of claim. r. 14.01 -- 115 of 641 -- Order 14 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 85 14.04 Service of defence In a proceeding commenced by writ, a defendant who files an appearance shall serve a defence as follows— (a) where the indorsement of claim on the writ constitutes a statement of claim in accordance with Rule 5.04, within 30 days after filing the appearance; (b) where the plaintiff serves a statement of claim, within 30 days after service of the statement of claim; or (c) within such time as the Court directs. 14.05 Reply Where the plaintiff is required to serve a reply, it shall be served within 30 days after service of the defence, unless the Court otherwise orders. 14.06 Pleading after reply No pleading subsequent to reply shall be served without an order of the Court. 14.07 Defence to counterclaim Where the defendant sets up a counterclaim in the defence, the plaintiff or any person joined as defendant to the counterclaim who is already a party to the proceeding shall serve a reply and defence to counterclaim or a defence to counterclaim within 30 days after service of the defence and counterclaim, unless the Court otherwise orders. r. 14.04 -- 116 of 641 -- Order 14 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 86 14.08 Close of pleadings Unless the Court otherwise orders, pleadings shall be closed— (a) where no pleading beyond a defence is ordered or served, at the expiration of 30 days after service of the defence; (b) where pleadings beyond a defence are ordered or served, at the expiration of 30 days after service of the last of those pleadings. 14.09 Order as to pleadings Notwithstanding anything contained in this Order, in a proceeding commenced by writ, the Court may order that— (a) any party serve any pleading; (b) the service of any pleading be dispensed with; or (c) the proceeding be tried without pleadings. 14.10 Filing of pleadings A party who serves a pleading on another party shall forthwith after service file a copy of the pleading. __________________ r. 14.08 -- 117 of 641 -- Order 15 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 87 ORDER 15 PERSON UNDER DISABILITY 15.01 Definitions In this Order— "handicapped person" means a person who is incapable by reason of injury, disease, senility, illness or physical or mental infirmity of managing his or her affairs in relation to the proceeding; "person under disability" means minor or handicapped person. 15.02 Litigation guardian of person under disability (1) Except where otherwise provided by or under any Act, a person under disability shall commence or defend a proceeding by his or her litigation guardian. (2) Except where otherwise provided by these Rules, anything in a proceeding that is required or permitted by the Rules to be done by a party shall or may, if the party is a person under disability, be done by his or her litigation guardian. (3) A litigation guardian of a person under disability shall act by a solicitor. 15.03 Appointment of litigation guardian (1) A person may be a litigation guardian of a person under disability if— (a) that person is not himself or herself a person under disability; and (b) he or she has no interest in the proceeding adverse to that of the person under disability. r. 15.01 -- 118 of 641 -- Order 15 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 88 (2) Where a person is authorised by or under any Act to conduct legal proceedings in the name of or on behalf of a handicapped person, that person shall, unless the Court otherwise orders, be entitled to be litigation guardian of the handicapped person in any proceeding to which that person's authority extends. (3) Where after a proceeding is commenced a party to the proceeding becomes a handicapped person, the Court shall appoint a litigation guardian of that party. (4) Where the interests of a party who is a person under disability so require, the Court may— (a) appoint or remove a litigation guardian; or (b) substitute another person as litigation guardian. (5) Where a party has a litigation guardian in a proceeding, no other person shall act as litigation guardian, unless the Court otherwise orders. (6) Except where a litigation guardian has been appointed by the Court, the name of a person shall not be used in a proceeding as litigation guardian of a person under disability unless there is first filed in the office of the Prothonotary— (a) the written consent of the person to be the litigation guardian; and (b) a certificate by the solicitor for the person under disability certifying that the solicitor knows or believes that— (i) the person to whom the certificate relates is a minor or is a handicapped person, giving the grounds of the solicitor's knowledge or belief; and r. 15.03 -- 119 of 641 -- Order 15 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 89 (ii) the litigation guardian of the person under disability has signed the said written consent and has no interest in the proceeding adverse to that person. 15.04 No appearance by person under disability Where a defendant who is a person under disability does not file an appearance within the time limited, the plaintiff shall not continue the proceeding unless a person— (a) is made litigation guardian of the defendant in accordance with Rule 15.03(6); or (b) is appointed litigation guardian by order of the Court. 15.05 Application to discharge or vary certain orders An application to the Court on behalf of a person under disability served with an order made without notice under Rule 9.09 for the discharge or variation of the order shall be made— (a) if a litigation guardian is acting for that person in the proceeding in which the order is made, within 10 days after the service of the order on that person; (b) if no litigation guardian is acting for that person in that proceeding, within 10 days after the appointment of a litigation guardian to act for the person under disability. 15.06 Pleading admission by person under disability Notwithstanding Rule 13.12(1), a person under disability shall not be taken to admit the truth of any allegation of fact made in the pleading of the opposite party unless in his or her pleading the person under disability states that the allegation is admitted. r. 15.04 -- 120 of 641 -- Order 15 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 90 15.07 Discovery (1) Subject to paragraph (2), a party shall be entitled to have discovery of a person under disability as if that person were not under disability. (2) The discovery shall be given by the person under disability or his or her litigation guardian, whichever is appropriate. 15.08 Compromise of claim by a person under disability (1) Where in a proceeding a claim is made by or on behalf of or against a person under disability, no compromise, payment of money or acceptance of an offer of compromise under Order 26, whenever entered into or made, shall so far as it relates to that claim be valid without the approval of the Court. (2) Application for approval shall be by summons filed not later than 30 days after the compromise, payment or acceptance. (2.1) A copy of an affidavit in support of the application shall not be served. (3) The Court may dispense with the requirement of a summons where application for approval is made at the trial of the proceeding. (4) On the application, evidence shall be given of the date of the compromise, payment or acceptance and the date of birth of the person under disability, and the dates shall be stated in any order approving the compromise, payment or acceptance. (5) Where the acceptance of an offer of compromise is approved, the person under disability shall be taken to have made or accepted the offer at the time of approval. r. 15.07 -- 121 of 641 -- Order 15 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 91 (6) Where an order is made approving a compromise by which money is to be paid to a person under disability, the forms of order in Forms 15A and 15B shall, where appropriate, be used. 15.09 Execution against money in court (1) This Rule applies where— (a) a person under disability is required by a judgment to pay money; (b) money stands in court to the credit of that person or that person has a beneficial interest in money or funds in court; and (c) under these Rules, the Court may, on the application of the person entitled to enforce the judgment, order that the money in court or so much thereof as is sufficient to satisfy the judgment be paid to that person or, as the case may be, make an order imposing a charge on the beneficial interest of the person under disability in the money or funds in court to secure the payment of the sum due under the judgment. (2) In determining whether to make an order for payment or an order imposing a charge, as the case may be, the Court shall have regard to— (a) the fact that the person liable under the judgment is a person under disability; (b) the purpose for which payment of the money or funds into court was made; and (c) the purpose for which the money or funds are held. (3) In this Rule— "judgment" includes order; "funds in court" has the same meaning as it has in Rule 73.01. r. 15.09 -- 122 of 641 -- Order 15 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 92 15.10 Counterclaim and claim by third party notice This Order shall apply, with any necessary modification— (a) to a counterclaim against a person under disability who is joined as defendant to the counterclaim under Rule 10.03; and (b) to a claim by third party notice by or on behalf of or against a person under disability. __________________ r. 15.10 -- 123 of 641 -- Order 16 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 93 ORDER 16 EXECUTORS, ADMINISTRATORS AND TRUSTEES 16.01 Representation of unascertained persons (1) This Rule applies to a proceeding relating to— (a) the administration of the estate of a deceased person; (b) property subject to a trust; or (c) the construction of an instrument, including an Act. (2) The Court may appoint one or more persons to represent any person (including an unborn person) who or class which is or may be interested (whether presently or for any future, contingent or unascertained interest) in or affected by the proceeding where— (a) the person, the class or some members of the class cannot be ascertained or cannot readily be ascertained; (b) the person, class or some member of the class, though ascertained, cannot be found; or (c) though the person or the class and the members thereof can be ascertained and found, it appears to the Court expedient, regard being had to all the circumstances, including the amount at stake and the degree of difficulty of the point to be determined, to make the order for the purpose of saving expense. r. 16.01 -- 124 of 641 -- Order 16 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 94 (3) Where the Court makes an order under paragraph (2), a judgment or order in the proceeding shall bind the person or class represented as if the person or class were parties. (4) Where a compromise of a proceeding is proposed and some of the persons who are interested in, or who may be affected by, the compromise are not parties (including unborn or unascertained persons) but— (a) there is a party in the same interest— (i) who assents to the compromise; or (ii) on whose behalf the Court sanctions the compromise; or (b) the absent persons are represented by a person appointed under paragraph (2) and the appointed person so assents— the Court, if satisfied that the compromise is for the benefit of the absent persons, may approve the compromise and order that it shall be binding on the absent persons, and they shall be bound accordingly except where the order is obtained by fraud or non-disclosure of material facts. 16.02 Beneficiaries (1) Where a party sues or is sued as executor, administrator or trustee— (a) it shall not be necessary to join as a party any of the persons having a beneficial interest in the estate or under the trust; (b) a judgment or order in the proceeding shall bind those persons as it does the executor, administrator or trustee. r. 16.02 -- 125 of 641 -- Order 16 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 95 (2) Paragraph (1) does not limit the power of the Court— (a) to order the addition of a party under Rule 9.06; or (b) to make an order under Rule 16.01(2). 16.03 Deceased person (1) Where a deceased person was interested, or the estate of a deceased person is interested, in any question in a proceeding and the deceased person has no personal representative, the Court may— (a) proceed in the absence of a person to represent the estate of the deceased; or (b) by order (with the consent of the person appointed) appoint a person to represent the estate for the purpose of the proceeding. (2) An order under paragraph (1), and any judgment or order subsequently given or made in the proceeding, shall bind the estate of the deceased person as it would had a personal representative of the deceased been a party. (3) Before making an order under this Rule, the Court may require notice of the application for the order to be given to any person having an interest in the estate. __________________ r. 16.03 -- 126 of 641 -- Order 17 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 96 ORDER 17 PARTNERS AND SOLE PROPRIETORS 17.01 Partners (1) Where two or more persons carry on business as partners within Victoria, a proceeding may be commenced by or against them in the name of the firm (if any) of which they were partners when the cause of action accrued. (2) Paragraph (1) applies where partners sue or are sued by— (a) any partner of the same firm; (b) partners of another firm, and any partner of the one firm is a partner of the other. 17.02 Disclosure of partners (1) Where a proceeding is commenced by or against partners in the firm name under Rule 17.01, any other party may by notice served at the address for service of the partners in the proceeding require the partners to disclose in writing within 14 days of service— (a) the name and the address of the usual or last known place of residence or of business of each person constituting the firm at the time when the cause of action accrued; and (b) whether since that time there has been any and what change in the membership of the firm. r. 17.01 -- 127 of 641 -- Order 17 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 97 (2) Where partners fail to comply with a notice under paragraph (1), the Court may order— (a) if the partners are plaintiffs, that the proceeding be dismissed; (b) if the partners are defendants, that their defence be struck out. 17.03 Service of originating process (1) Originating process in a proceeding commenced against partners in the firm name under Rule 17.01 may be served on— (a) any one or more of the partners; or (b) any person at the principal place of business of the partnership within Victoria who appears to have control or management of the partnership business there. (2) Originating process served under paragraph (1) shall be taken to have been duly served on the partners whether or not any partner is out of Victoria. (3) Where a partnership has to the knowledge of the plaintiff been dissolved before the proceeding against the partners has commenced, the originating process shall be served on every person sought to be made liable in the proceeding. (4) Every person upon whom originating process is served under paragraph (1) shall be informed by notice in writing given at the time of service whether that person is served as a partner or as a person having the control or management of the partnership business or in both characters and, in default of such notice, the person served shall be taken to be served as a partner. r. 17.03 -- 128 of 641 -- Order 17 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 98 17.04 Appearance by partners Partners sued in the name of their firm shall appear individually in their own names, but the proceeding shall, nevertheless, continue in the name of the firm. 17.05 No appearance except by partners A person served with originating process as a person having the control or management of the partnership business may not file an appearance unless that person is a partner. 17.06 Appearance under objection of person sued as partner (1) A person served with originating process as a partner may file an appearance stating that— (a) he or she does so as a person served as a partner; and (b) that he or she denies that he or she was a partner at any material time or is liable as such. (2) An appearance filed under paragraph (1) shall not preclude the plaintiff from otherwise serving the partners, and, if no party has filed an appearance in the ordinary form, obtaining judgment against the partners in the name of the firm in default of appearance. (3) Where an appearance is filed under paragraph (1)— (a) the plaintiff may either— (i) apply to set it aside on the ground that the person filing it was a partner or is liable as a partner; or (ii) leave that question to be determined at a later stage of the proceeding; r. 17.04 -- 129 of 641 -- Order 17 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 99 (b) the person filing the appearance may either— (i) apply to set aside the service on that person on the ground that he or she was not a partner at a material time or liable as such; or (ii) at the proper time serve a defence on the plaintiff denying in respect of the plaintiff's claim either that his or her liability as a partner or the liability of the partners or both; (c) the Court may give directions as to the mode and time of trial of any question of the liability of the person who filed the appearance or of the liability of the partners. (4) Rule 8.08 does not apply to an appearance filed under this Rule. 17.07 Enforcement of judgment (1) Subject to paragraph (2) and Rule 17.08, a judgment given or order made against partners suing or sued in the name of their firm may be enforced against— (a) any property of the partnership; and (b) any person who— (i) filed an appearance as a partner; (ii) having been served as a partner with originating process, failed to file an appearance; (iii) admitted in his or her pleading that he or she is a partner; or (iv) was served with originating process as a partner and was adjudged to be a partner. r. 17.07 -- 130 of 641 -- Order 17 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 100 (2) Where a party who has obtained a judgment or order against partners suing or sued in the name of their firm claims that a person is liable to satisfy the judgment or order as a partner, and paragraph (1) does not apply in relation to that person, the Court— (a) if liability is not disputed, may order that the judgment or order be enforced against that person; or (b) if the liability is disputed, may give directions for the trial of the question of liability. (3) An application under paragraph (2) shall be made by summons served personally on the person against whom enforcement of the judgment or order is sought. 17.08 Enforcement between partners A judgment given or order made against partners suing or being sued in the name of their firm in a proceeding of the kind referred to in Rule 17.01(2)(a) or (b)— (a) shall not be enforced without the leave of the Court; and (b) on application for leave, the Court may make an order that any necessary accounts and inquiries be taken and made. 17.09 Attachment of debts (1) A debt due or accruing due from partners may be attached under these Rules notwithstanding that any partner is resident out of Victoria, if a partner or some person apparently having the control or management of the partnership business within Victoria is served with the garnishee summons. r. 17.08 -- 131 of 641 -- Order 17 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 101 (2) The attendance of a partner before the Court on the hearing of a garnishee summons is a sufficient attendance by the partners. 17.10 Person using the business name Any person carrying on business within Victoria in a name or style other than that person's own may be sued in that name or style as if it were the name of a firm, and Rules 17.02 to 17.09 shall apply, with any necessary modification, as if that person were a partner and the name in which the person carries on business were the name of that person's firm. 17.11 Charge on partner's interest (1) An application to the Court by a judgment creditor of a partner for an order charging that person's interest in the partnership property and profits under section 27 of the Partnership Act 1958, and for such other orders as are thereby authorised to be made, and every application to the Court by a partner of a judgment debtor made in consequence of the first mentioned application shall be made by summons. (2) A summons filed by the judgment creditor under this Rule and an order made on the summons shall be served on the judgment debtor and on such of that person's partners as are within Victoria. (3) A summons filed by a partner of a judgment debtor under this Rule and an order made on the summons shall be served— (a) on the judgment creditor; (b) on the judgment debtor; and (c) on such of the other partners of the judgment debtor as do not join in the application and are within Victoria. r. 17.10 -- 132 of 641 -- Order 17 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 102 (4) A summons or order served under this Rule on some only of the partners of the judgment debtor shall be taken to have been served on all of the partners. __________________ r. 17.11 -- 133 of 641 -- Order 18 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 103 ORDER 18 REPRESENTATIVE PROCEEDING 18.01 Application This Order applies where numerous persons have the same interest in any proceeding, but does not apply to— (a) a proceeding under Part 4A of the Act; (b) a proceeding concerning— (i) the administration of the estate of a deceased person; or (ii) property subject to a trust. 18.02 Proceeding by or against representative A proceeding may be commenced, and, unless the Court otherwise orders, continued, by or against any one or more persons having the same interest as representing some or all of them. 18.03 Order for representation by defendant (1) At any stage of a proceeding under Rule 18.02 against one or more persons having the same interest, the Court may appoint any one or more of the defendants or the persons as representing whom the defendants are sued to represent some or all of those persons in the proceeding. (2) Where the Court appoints a person who is not a defendant, the Court shall make an order under Rule 9.06 adding that person as a defendant. 18.04 Effect of judgment (1) A judgment given or order made in a proceeding to which this Order applies shall bind the parties and all persons as representing whom the parties sue or are sued, as the case may be. r. 18.01 -- 134 of 641 -- Order 18 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 104 (2) The judgment or order shall not be enforced against a person not a party except by leave of the Court. (3) An application for leave shall be made by summons served personally on the person against whom enforcement of the judgment or order is sought. __________________ r. 18.04 -- 135 of 641 -- Order 18A Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 105 ORDER 18A GROUP PROCEEDING 18A.01 Application This Order applies to a group proceeding within the meaning of section 33A of the Act. 18A.02 Consent to be group member A consent in writing under section 33E(2) of the Act shall be in Form 18AA. 18A.03 Commencement of group proceeding (1) The writ shall not be indorsed with a statement of claim but shall be indorsed in accordance with Rule 5.04(2)(b). (2) A summons for directions shall be served on the defendant with the writ. (3) The summons shall be for hearing before a Judge and shall specify a day for hearing which is not less than 30 days after the day on which the writ and the summons are served and not more than 90 days after the day on which the writ was filed. 18A.04 Opting out A notice in writing under section 33J(2) of the Act shall be in Form 18AB. 18A.05 Order involving notice (1) This Rule applies to an application for an order under section 33K, 33W, 33X or 33ZA of the Act in relation to which the Court may require notice to be given to group members. r. 18A.01 -- 136 of 641 -- Order 18A Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 106 (2) The application shall be supported by an affidavit setting out to the best of the applicant's knowledge, information and belief— (a) the identity or description of the group members; (b) the whereabouts of the group members; and (c) the means by which a notice ordered by the Court is most likely to come to the attention of the group members. __________________ r. 18A.05 -- 137 of 641 -- Order 19 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 107 ORDER 19 NOTICE OF CONSTITUTIONAL MATTER 19.01 Definitions In this Order— "the Act" means the Judiciary Act 1903 of the Commonwealth; "State" has the meaning given in section 78AA of the Act. 19.02 Notice (1) Where a proceeding involves a matter arising under the Constitution or involving its interpretation within the meaning of section 78B of the Act, the party whose case raises the matter shall, unless the Court directs another party to do so, forthwith file a notice of a constitutional matter. (2) A notice under paragraph (1) shall state— (a) specifically the nature of the matter; and (b) the facts showing that the matter is one to which paragraph (1) applies. (3) The notice shall be in Form 19A. 19.03 Filing and service (1) Subject to paragraph (3), the party required or directed under Rule 19.02 to file the notice shall serve a copy on— (a) every other party; and (b) the Attorney-General for the Commonwealth, if the Attorney-General or the Commonwealth is not a party; and r. 19.01 -- 138 of 641 -- Order 19 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 108 (c) the Attorney-General of each State, if the Attorney-General or that State is not a party. (2) Unless the Court otherwise orders, the copy shall be served forthwith after the notice is filed. (3) Service of a copy of the notice need not be effected on an Attorney-General if steps have been taken that could reasonably be expected to cause the matters to be notified to be brought to the attention of that Attorney-General. (4) The party serving a copy of the notice shall forthwith file an affidavit of service. __________________ r. 19.03 -- 139 of 641 -- Order 20 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 109 ORDER 20 CHANGE OF SOLICITOR 20.01 Notice of change Where a solicitor acts for a party in a proceeding and the party changes that party's solicitor, the party shall forthwith— (a) file notice of the change; and (b) serve a copy of the notice on the other parties and, where practicable, the party's former solicitor. 20.02 Party appointing solicitor Where a party who has no solicitor in a proceeding appoints a solicitor to act for that party in the proceeding, the solicitor shall forthwith— (a) file notice of the appointment; and (b) serve a copy of the notice on the other parties. 20.03 Solicitor ceasing to act (1) Where a solicitor ceases to act for a party in a proceeding, unless a notice of change is filed and served under Rule 20.01, the solicitor shall forthwith— (a) file notice that the solicitor has ceased to act; and (b) serve a copy on all parties. (2) A notice under paragraph (1) shall state the address of the party last known to the solicitor. r. 20.01 -- 140 of 641 -- Order 20 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 110 (3) Except by leave of the Court, a solicitor shall not file a notice under paragraph (1)— (a) where the address of the party in the notice is outside Victoria; (b) after a proceeding has been set down for trial; (c) within 28 days after a proceeding has been finally determined subject only to an appeal, if any, to the Court of Appeal. (4) Except by leave of the Court of Appeal, a solicitor shall not file a notice under paragraph (1) where in the proceeding— (a) a summons for leave to appeal to the Court of Appeal has been filed; or (b) notice of appeal to the Court of Appeal has been served. 20.04 Removal of solicitor from record (1) Where— (a) a solicitor who has acted for a party in a proceeding— (i) has died or become bankrupt or cannot be found; or (ii) has ceased to have the right of practising in the Court; or (iii) for any other reason has ceased to practise; and (b) the party has not given notice under Rule 20.01 or the solicitor has not given notice under Rule 20.03— the Court, on application made by any other party to the proceeding, may by order declare that the solicitor has ceased to be the solicitor acting for the first-mentioned party in the proceeding. r. 20.04 -- 141 of 641 -- Order 20 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 111 (2) An application under paragraph (1) shall be made by summons supported by affidavit stating the facts on which the application is made and, unless the Court otherwise orders, the summons and a copy of the affidavit shall be served on the party to whose solicitor the application relates. (3) Where an order is made under paragraph (1), the party on whose application it was made shall forthwith— (a) serve a copy of the order on every other party to the proceeding; and (b) file an affidavit of service. 20.05 Address for service (1) The address for service of a party— (a) who changes the party's solicitor and files and serves notice under Rule 20.01, shall be the business address of the new solicitor; (b) who appoints a solicitor in the circumstances referred to in Rule 20.02, shall be the business address of the solicitor; (c) for whom a solicitor has ceased to act, where notice is filed and served by the solicitor under Rule 20.03 without leave, shall be the address stated in the notice. (2) Where the Court under— (a) paragraph (3) or (4) of Rule 20.03 gives a solicitor leave to file notice that he or she has ceased to act; (b) Rule 20.04(1) by order declares that a solicitor has ceased to act— the Court may by order direct what address shall be the address for service of the party for whom the solicitor has ceased to act. r. 20.05 -- 142 of 641 -- Order 20 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 112 (3) Where the Court makes no order under paragraph (2), any document in the proceeding which is not required to be served personally may be served on the party for whom the solicitor has ceased to act by filing it. (4) A party who serves a document by filing in accordance with paragraph (3) shall indorse upon a backsheet or on the back of the last sheet a statement that the document is filed as such service. 20.06 Death, retirement etc., of Victorian Government Solicitor etc. Where the person who occupies or acts in the office of Victorian Government Solicitor or the Australian Government Solicitor acts as solicitor for a party in a proceeding and the person so acting dies or retires or otherwise ceases to occupy or act in that office, it shall not be necessary to file and serve notice under Rule 20.01. __________________ r. 20.06 -- 143 of 641 -- Order 21 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 113 ORDER 21 JUDGMENT IN DEFAULT OF APPEARANCE OR PLEADING 21.01 Default of appearance (1) This Rule applies only to a proceeding commenced by writ. (2) Where a defendant does not file an appearance within the time limited, the plaintiff may enter or apply for judgment against that defendant in accordance with this Order. (3) Judgment shall not be entered or given for the plaintiff unless there is filed— (a) a notice to the Prothonotary requesting the Prothonotary to search for an appearance by the defendant; (b) an affidavit proving service of the writ on the defendant; and (c) where the plaintiff applies for judgment in accordance with Rule 21.04 and the indorsement of claim on the writ does not constitute a statement of claim in accordance with Rule 5.04, a statement of claim. 21.02 Default of defence (1) Where any defendant, being required to serve a defence, does not do so within the time limited, the plaintiff may enter or apply for judgment against that defendant in accordance with this Order. (2) Judgment shall not be entered or given for the plaintiff unless an affidavit proving the default is filed. r. 21.01 -- 144 of 641 -- Order 21 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 114 (3) Paragraphs (1) and (2) shall apply, with any necessary modification, where— (a) the defendant has served a defence; and (b) by or under an order of the Court the defence is struck out. 21.03 Judgment for recovery of debt, damages or property (1) Where a claim is made for the recovery of a debt, damages or any property, whether or not another claim is also made in the proceeding, and the plaintiff is entitled to judgment on that claim against any defendant in accordance with Rule 21.01 or Rule 21.02, the plaintiff may— (a) for the recovery of a debt, enter final judgment against that defendant for an amount not exceeding the amount claimed in the writ or, if the plaintiff has served a statement of claim, the amount claimed in the statement of claim, together with interest from the commencement of the proceeding to the date of the judgment— (i) on any debt which carries interest, at the rate it carries; (ii) on any other debt, at the rates payable on judgment debts during that time; (b) for the recovery of damages, enter interlocutory judgment against that defendant for the damages to be assessed; (c) for the recovery of land, enter judgment for possession of the land against that defendant; r. 21.03 -- 145 of 641 -- Order 21 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 115 (d) for the detention of goods, enter interlocutory judgment against that defendant— (i) either for the delivery of goods or their value to be assessed or for the value of the goods to be assessed; and (ii) if a claim is made for the recovery of damages for the detention of the goods, for the damages to be assessed. (1.1) Where a claim is made for the recovery of land, and the plaintiff also claims mesne profits, if the indorsement of claim on the writ or statement of claim shows that the amount claimed for mesne profits is calculated according to rent which had been payable by the defendant to the plaintiff in respect of the land, the claim for mesne profits shall, for the purpose of paragraph (1), be taken to be a claim for the recovery of a debt. (1.2) Paragraph (1) shall not apply to a claim for the recovery of a debt or damages in a currency not Australian dollars, and if the plaintiff is entitled to judgment on the claim against any defendant in accordance with Rule 21.01 or Rule 21.02, the Court may give judgment for the plaintiff under Rule 21.04 as if the claim were a claim to which that Rule applies. (2) Upon entering judgment under paragraph (1) the plaintiff may also enter judgment for costs. (3) Where under paragraph (1) damages or the value of goods are to be assessed, the assessment shall, unless the Court otherwise orders, be made by a Master in accordance with Order 51. r. 21.03 -- 146 of 641 -- Order 21 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 116 21.04 Judgment other than for recovery of debt, damages or property (1) Where a claim is made other than for the recovery of a debt, damages or any property, whether or not a claim for such recovery is also made in the proceeding, and the plaintiff is entitled to judgment on that claim against any defendant in accordance with Rule 21.01 or 21.02, the Court may give judgment for the plaintiff upon the statement of claim. (2) An application for judgment under paragraph (1) may be made without notice to the defendant. 21.05 Proceeding continued against other defendants A plaintiff who enters or obtains judgment against a defendant in accordance with this Order may enforce the judgment and continue the proceeding against any other defendant, but in a proceeding for the recovery of land against more than one defendant a judgment for possession of the land shall not be enforced against any defendant unless judgment for possession has been entered or given against all the defendants. 21.06 Default of defence to counterclaim Where a defendant serves a counterclaim, Rule 21.02 shall apply as if— (a) the defendant were the plaintiff; (b) the defence were the defence to counterclaim; and (c) the plaintiff were the defendant. 21.07 Setting aside judgment The Court may set aside or vary any judgment entered or given in accordance with this Order. __________________ r. 21.04 -- 147 of 641 -- Order 22 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 117 ORDER 22 SUMMARY JUDGMENT FOR PLAINTIFF 22.01 Scope of Order This Order applies only to a proceeding commenced by writ. 22.02 Application for judgment (1) Where the defendant has filed an appearance, the plaintiff may at any time apply to the Court for judgment against that defendant on the ground that the defendant has no defence to the whole or part of a claim included in the writ or statement of claim, or no defence except as to the amount of a claim. (2) Paragraph (1) shall not apply to a claim for libel, slander, malicious prosecution, false imprisonment or seduction or to a claim based on an allegation of fraud. (3) Where the writ or statement of claim includes a claim within paragraph (2), the plaintiff may apply for judgment in respect of any other claim and continue the proceeding for the first- mentioned claim. (4) Except by order of the Court, the plaintiff shall make only one application for judgment under this Order. 22.03 Affidavit in support (1) An application for judgment shall be made by summons supported by an affidavit— (a) verifying the facts on which the claim or the part of the claim to which the application relates is based; and r. 22.01 -- 148 of 641 -- Order 22 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 118 (b) stating that in the belief of the deponent there is no defence to that claim or part, or no defence except as to the amount claimed. (2) Where a statement in a document tends to establish a fact within paragraph (1) and at the trial of the proceeding the document would be admissible by or under the Evidence Act 1958 or any other Act to verify the fact, the affidavit under paragraph (1) may set forth the statement. (3) An affidavit under paragraph (1) may contain a statement of fact based on information and belief if the grounds are set out and, having regard to all the circumstances, the Court considers that the statement ought to be permitted. (4) The plaintiff shall serve the summons and a copy of the affidavit or affidavits in support and of any exhibit referred to therein on the defendant not less than 14 days before the day for hearing named in the summons. 22.04 Defendant to show cause (1) The defendant may show cause against the application by affidavit or otherwise to the satisfaction of the Court. (2) An affidavit under paragraph (1) may contain a statement of fact based on information and belief if the grounds are set out. (3) Unless the Court otherwise orders, the defendant shall serve a copy of any affidavit and of any exhibit referred to therein on the plaintiff not less than three days before the day for hearing named in the summons. r. 22.04 -- 149 of 641 -- Order 22 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 119 22.05 Affidavit in reply Where the defendant serves an affidavit under Rule 22.04, the Court may by order allow the plaintiff to rely upon an affidavit in reply. 22.06 Hearing of application (1) On the hearing of the application the Court may— (a) dismiss the application; (b) give such judgment for the plaintiff against the defendant on the claim or the part of the claim to which the application relates as is appropriate having regard to the nature of the relief or remedy claimed unless the defendant satisfies the Court that in respect of that claim or part a question ought to be tried or that there ought for some other reason be a trial of that claim or part; (c) give the defendant leave to defend with respect to the claim or the part of the claim to which the application relates either unconditionally or on terms as to giving security, paying money into court, time, the mode of trial or otherwise; or (d) with consent of all parties, and notwithstanding Rule 77.03(1), dispose of the proceeding finally in a summary manner. (2) The Court may stay execution of any judgment given under paragraph (1)(b) until after the trial of any counterclaim made by the defendant in the proceeding. r. 22.05 -- 150 of 641 -- Order 22 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 120 22.07 Cross-examination on affidavit (1) The Court may order any party or the maker of any affidavit— (a) to attend and be examined and cross- examined; or (b) to produce any papers, books or documents, or copies of or extracts therefrom. (2) Where a party is a corporation, the Court may make an order under paragraph (1) in respect of any director, manager, secretary or other similar officer thereof or any person purporting to act in any such capacity. 22.08 Judgment on counterclaim (1) Where a defendant serves a counterclaim, the defendant may at any time after service, on the ground that the plaintiff has no defence to the whole or part of a claim made in the counterclaim, or no defence except as to the amount of a claim, apply to the Court for judgment against the plaintiff. (2) This Order shall, with any necessary modification, apply to an application under paragraph (1) as if the plaintiff were the defendant and the defendant the plaintiff. 22.09 Assessment of damages Where judgment is given under this Order for damages or the value of goods to be assessed, the assessment shall be made in accordance with Order 51. r. 22.07 -- 151 of 641 -- Order 22 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 121 22.10 Judgment where debt amount unascertained Where on an application under this Order for judgment on a claim for a debt the amount of the debt is not established to the satisfaction of the Court, and where if the amount were established the Court would give judgment on the claim, the Court may— (a) make a declaration as to liability for the debt and order that its amount be ascertained in such manner as the Court directs; and (b) give leave to enter judgment for the debt once the amount is ascertained. 22.11 Directions (1) Where leave is given to defend, or where judgment is given on a claim or part of a claim but execution of the judgment is stayed pending the trial of a counterclaim or of the proceeding, as the case may be, the Court may give directions as to the further conduct of the proceeding. (2) The Court may direct that an affidavit made under this Order shall serve as a defence or defence and counterclaim, and may order the proceeding to be forthwith set down for trial, and may define the questions to be tried. 22.12 Continuing for other claim or against other defendant Where the plaintiff obtains judgment on a claim or part of a claim against any defendant, the plaintiff may continue with the proceeding for any other claim or for the remainder of the claim or against any other defendant. r. 22.10 -- 152 of 641 -- Order 22 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 122 22.13 Judgment for delivery up of chattel Where the Court gives judgment under this Order for the delivery up of a specific chattel, it may order the party against whom judgment is given to deliver up the chattel without giving the party an option to retain it on paying the assessed value thereof. 22.14 Relief against forfeiture A tenant may apply for relief after judgment for possession of land on the ground of forfeiture for non-payment of rent has been given under this Order as if the judgment were given after trial. 22.15 Setting aside judgment The Court may set aside or vary any judgment given against a party who does not attend on the hearing of an application under Rule 22.02 or 22.08. __________________ r. 22.13 -- 153 of 641 -- Order 23 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 123 ORDER 23 SUMMARY STAY OR DISMISSAL OF CLAIM AND STRIKING OUT PLEADING 23.01 Stay or judgment in proceeding (1) Where a proceeding generally or any claim in a proceeding— (a) does not disclose a cause of action; (b) is scandalous, frivolous or vexatious; or (c) is an abuse of the process of the Court— the Court may stay the proceeding generally or in relation to any claim or give judgment in the proceeding generally or in relation to any claim. (2) Where the defence to any claim in a proceeding— (a) does not disclose an answer; or (b) is scandalous, frivolous or vexatious— the Court may give judgment in the proceeding generally or in relation to any claim. (3) In this Rule— (a) a claim in a proceeding includes a claim by counterclaim and a claim by third party notice; and (b) a defence includes a defence to a counterclaim and a defence to a claim by third party notice. r. 23.01 -- 154 of 641 -- Order 23 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 124 23.02 Striking out pleading Where an indorsement of claim on a writ or originating motion or a pleading or any part of an indorsement of claim or pleading— (a) does not disclose a cause of action or defence; (b) is scandalous, frivolous or vexatious; (c) may prejudice, embarrass or delay the fair trial of the proceeding; or (d) is otherwise an abuse of the process of the Court— the Court may order that the whole or part of the indorsement or pleading be struck out or amended. 23.03 Summary judgment for defendant On application by a defendant who has filed an appearance, the Court at any time may give judgment for that defendant against the plaintiff if the defendant has a good defence on the merits. 23.04 Affidavit evidence (1) On an application under Rule 23.01 or 23.03 evidence shall be admissible for any party by affidavit or, if the Court thinks fit, orally. (2) On an application under Rule 23.02 no evidence shall be admissible on the question whether an indorsement of claim or pleading offends against that Rule. (3) Rule 22.07 applies to an affidavit under paragraph (1). r. 23.02 -- 155 of 641 -- Order 23 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 125 23.05 Declaratory judgment No proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether or not any consequential relief is or could be claimed. __________________ r. 23.05 -- 156 of 641 -- Order 24 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 126 ORDER 24 JUDGMENT ON FAILURE TO PROSECUTE OR OBEY ORDER FOR PARTICULARS OR DISCOVERY 24.01 Judgment on dismissal Where the plaintiff— (a) being required to serve a statement of claim, fails to do so within the time limited; or (b) does not within a reasonable time after the commencement of the proceeding file and serve notice of trial or apply to have a date fixed for the trial of the proceeding; or (c) fails to file and serve notice of trial within the time allowed to the plaintiff by the Court when fixing a date for the trial of the proceeding under Rule 48.01(b)— the Court may order that the proceeding be dismissed for want of prosecution. 24.02 Failure to obey order (1) Where a party fails to comply with an order to give particulars of any pleading or with an order for the discovery or inspection of documents or for answers to interrogatories, the Court may order— (a) if the party is the plaintiff, that the proceeding be dismissed; (b) if the party is a defendant, that the defendant's defence, if any, be struck out. r. 24.01 -- 157 of 641 -- Order 24 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 127 (2) A defendant whose defence is struck out in accordance with paragraph (1)(b) shall, for the purpose of Rule 21.02(1), be taken to be a defendant who, being required to serve a defence, does not do so within the time limited for that purpose. 24.03 Stay on non-payment of costs Where— (a) a proceeding is dismissed for want of prosecution and the plaintiff is liable to pay the costs of the defendant of the proceeding; and (b) the plaintiff, before paying those costs commences another proceeding for the same, or substantially the same, cause of action— the Court may by order stay the proceeding until those costs are paid. 24.04 Counterclaim and third party claim This Order shall apply, with any necessary modification, to a counterclaim and to a claim by third party notice as if the counterclaim or the third party claim were a proceeding. 24.05 Inherent jurisdiction Nothing in this Order shall affect the inherent power of the Court to dismiss any proceeding for want of prosecution or to order that upon the failure of a party to do any act or take any step which under these Rules the party is required to do or take or to comply with an order that the party do any such act or take any such step the proceeding shall be dismissed or the defence struck out and that judgment may be entered or that there be judgment accordingly. r. 24.03 -- 158 of 641 -- Order 24 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 128 24.06 Setting aside judgment The Court may set aside or vary— (a) an order under this Order or an order referred to in Rule 24.05; (b) a judgment entered or given upon the failure of a party to do any act or take any step which under these Rules the party is required to do or take or to comply with an order that the party do any such act or take any such step. __________________ r. 24.06 -- 159 of 641 -- Order 25 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 129 ORDER 25 DISCONTINUANCE AND WITHDRAWAL 25.01 Withdrawal of appearance A party who has filed an appearance in a proceeding may withdraw the appearance at any time with the leave of the Court. 25.02 Discontinuance or withdrawal of proceeding or claim (1) This Rule applies only to a proceeding commenced by writ. (2) A plaintiff may discontinue a proceeding or withdraw any part of it— (a) before the close of pleadings; or (b) at any time, by leave of the Court or with the consent of all other parties. (3) A defendant may discontinue a counterclaim or withdraw any part of it— (a) before the close of pleadings; or (b) at any time, by leave of the Court or with the consent of all other parties to the counterclaim. (4) At any time the plaintiff may withdraw a defence to counterclaim or any part of it and a defendant may withdraw the defendant's defence or any part of it. (5) Paragraph (4) does not enable a party to withdraw an admission or any other matter operating for the benefit of another party without the consent of that party or the leave of the Court. r. 25.01 -- 160 of 641 -- Order 25 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 130 (6) A defendant who has joined a third party may discontinue the claim made against the third party by the third party notice or withdraw any part of the claim at any time by leave of the Court or with the consent of the third party. 25.03 Proceeding not commenced by writ A proceeding not commenced by writ may be discontinued and any part of a proceeding not commenced by writ may be withdrawn at any time by leave of the Court or with the consent of all other parties. 25.04 Notice of discontinuance or withdrawal (1) A discontinuance or withdrawal without the leave of the Court shall be made by filing a notice stating the extent of the discontinuance or withdrawal. (2) When the discontinuance or withdrawal is with the consent of other parties the notice under paragraph (1) shall be indorsed with the consent of each party who consents. (3) On the day the notice is filed a copy shall be served on each other party. 25.05 Costs Where a proceeding, counterclaim or claim by third party notice is discontinued, or where part of a proceeding, counterclaim or third party notice is withdrawn, liability for costs shall be determined in accordance with Rule 63.15. r. 25.03 -- 161 of 641 -- Order 25 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 131 25.06 Discontinuance or withdrawal no defence The discontinuance of a proceeding, counterclaim or claim by third party notice or the withdrawal of any part of a proceeding, counterclaim or claim by third party notice shall not be a defence to a subsequent proceeding for the same, or substantially the same, cause of action, unless the Court otherwise provides by any order granting leave to discontinue or withdraw. 25.07 Stay on non-payment of costs Where by reason of a discontinuance or a withdrawal under this Order a party is liable to pay the costs of any other party, and the party, before paying those costs, commences another proceeding for the same, or substantially the same, cause of action, the Court may by order stay the proceeding until those costs are paid. __________________ r. 25.06 -- 162 of 641 -- Order 26 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 132 ORDER 26 OFFER OF COMPROMISE PART 1—INTERPRETATION 26.01 Definitions In this Order, unless the context or subject matter otherwise requires— "claim" includes a counterclaim and any claim made in accordance with Order 11; "defendant" includes a defendant by counterclaim and a party against whom a claim is made in accordance with Order 11; "plaintiff" includes a defendant who serves a counterclaim and a party who makes a claim in accordance with Order 11. PART 2—OFFER OF COMPROMISE 26.02 Application (1) The plaintiff and the defendant may in respect of any claim in a proceeding serve on one another an offer of compromise on the terms specified in the offer. (2) An offer of compromise in respect of a claim may be on terms that take into account any other claim between the plaintiff and the defendant made in the proceeding. (3) An offer of compromise shall— (a) be in writing and prepared in accordance with Rules 27.02 to 27.04; and (b) contain a statement to the effect that it is served in accordance with this Order. r. 26.01 -- 163 of 641 -- Order 26 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 133 26.03 Time for making, accepting etc. offer (1) An offer of compromise may be served at any time before verdict or judgment in respect of the claim to which it relates. (2) A party may serve more than one offer of compromise. (3) An offer of compromise may be expressed to be limited as to the time the offer is open to be accepted after service on the party to whom it is made, but the time expressed shall not be less than 14 days after such service. (3.1) A party on whom an offer of compromise is served shall within three days after service serve a written acknowledgement of service on the party serving the offer. (4) A party on whom an offer of compromise is served may accept the offer by serving notice of acceptance in writing on the party who made the offer before— (a) the expiration of the time specified in accordance with paragraph (3) or, if no time is specified, the expiration of 14 days after service of the offer; or (b) verdict or judgment in respect of the claim to which the offer relates— whichever event is the sooner. (5) An offer of compromise shall not be withdrawn during the time it is open to be accepted, unless the Court otherwise orders. r. 26.03 -- 164 of 641 -- Order 26 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 134 (6) An offer of compromise is open to be accepted within the period referred to in paragraph (4) notwithstanding that during that period the party on whom the offer is served makes an offer of compromise to the party who served the offer of compromise, whether or not the offer made by the party served is made in accordance with this Part. (7) Upon the acceptance of an offer of compromise in accordance with paragraph (4), unless the Court otherwise orders, the defendant shall pay the costs of the plaintiff in respect of the claim up to and including the day the offer was served. (8) If an offer of compromise contains a term which purports to negative or limit the operation of paragraph (7), that term shall be of no effect for any purpose under this Part. 26.03.1 Time for payment An offer of compromise providing for payment of a sum of money to a plaintiff shall, unless it otherwise provides, be taken to be an offer providing for payment of that sum within 14 days after acceptance of the offer. 26.04 Effect of offer An offer of compromise made in accordance with this Part shall be taken to be an offer of compromise made without prejudice, unless the offer otherwise provides. 26.05 Disclosure of offer to Court (1) No statement of the fact that an offer of compromise has been made shall be contained in any pleading or affidavit. (2) Where an offer of compromise has not been accepted, then, except as provided by Rule 26.08(6), no communication with respect to the offer shall be made to the Court on the trial of r. 26.03.1 -- 165 of 641 -- Order 26 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 135 the proceeding until after all questions of liability and the relief to be granted have been determined. (3) Paragraphs (1) and (2) shall not apply where an offer of compromise provides that the offer is not made without prejudice. 26.06 Party under disability A person under disability may make or accept an offer of compromise, but no acceptance of an offer made by him or her and no acceptance by that person of an offer shall be binding until the Court has approved the compromise. 26.07 Failure to comply with accepted offer (1) Where a party to an accepted offer of compromise fails to comply with the terms of the offer, then, unless for special cause the Court shall otherwise order, the other party shall be entitled, as that other party may elect, to— (a) judgment in the terms of the accepted offer; or (b) where the party in default is— (i) the plaintiff, an order that the proceeding be dismissed; and (ii) the defendant, an order that the defendant's defence be struck out— and in either case to judgment accordingly. (2) Where a party to an accepted offer of compromise fails to comply with the terms of the offer, and a defendant in the proceeding has made a claim by counterclaim or third party notice which is not the subject of the accepted offer, the Court may make such order or give such judgment under paragraph (1) and make such order that the proceeding, counterclaim or claim by third party notice be continued as it thinks fit. r. 26.06 -- 166 of 641 -- Order 26 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 136 26.08 Costs consequences of failure to accept (1) This Rule applies to an offer of compromise which has not been accepted at the time of verdict or judgment. (2) Where an offer of compromise is made by a plaintiff and not accepted by the defendant, and the plaintiff obtains a judgment on the claim to which the offer relates no less favourable to the plaintiff than the terms of the offer, then, unless the Court otherwise orders, the plaintiff shall be entitled— (a) if the claim of the plaintiff is for damages for or arising out of death or bodily injury, to an order against the defendant for the plaintiff's costs in respect of the claim taxed on an indemnity basis; (b) in the case of any other claim of the plaintiff, to an order against the defendant for the plaintiff's costs in respect of the claim up to and including the day the offer was served taxed on a party and party basis and for the plaintiff's costs thereafter taxed on an indemnity basis. (3) Where an offer of compromise is made by a defendant and not accepted by the plaintiff, and the plaintiff obtains a judgment on the claim to which the offer relates not more favourable to the plaintiff than the terms of the offer, then, unless the Court otherwise orders— (a) the plaintiff shall be entitled to an order against the defendant for the plaintiff's costs in respect of the claim up to and including the day the offer was served taxed on a party and party basis; and r. 26.08 -- 167 of 641 -- Order 26 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 137 (b) the defendant shall be entitled to an order against the plaintiff for the defendant's costs in respect of the claim thereafter taxed on a party and party basis. (4) For the purpose of paragraph (3), where the offer of compromise was served on the first or a later day of the trial of the proceeding, then, unless the Court otherwise orders— (a) the plaintiff shall be entitled to the plaintiff's costs in respect of the claim to the opening of the court next after the day on which the offer was served taxed on a party and party basis; and (b) the defendant shall be entitled to the defendant's costs in respect of the claim thereafter taxed on a party and party basis. (5) Where a plaintiff obtains judgment for the recovery of a debt or damages and— (a) the amount for which the Court pronounces judgment includes an amount for interest or damages in the nature of interest; or (b) by or under any Act the Court awards the plaintiff interest or damages in the nature of interest in respect of the judgment amount— for the purpose of determining the consequences as to costs referred to in paragraphs (2) and (3) the Court shall disregard so much of the amount recovered by or awarded to the plaintiff for interest or damages in the nature of interest as relates to the period after the day the offer of compromise was served. (6) For the purpose only of paragraph (5), the Court may be informed of the fact that the offer of compromise was served, and of the date of service, but shall not be informed of its terms. r. 26.08 -- 168 of 641 -- Order 26 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 138 (7) Paragraphs (2) and (3) shall not apply unless the Court is satisfied by the party serving the offer of compromise that that party was at all material times willing and able to carry out the party's part of what was proposed in the offer. (8) Where the plaintiff obtains judgment for the recovery of a debt or damages, and the amount of the debt or the damages was not in dispute, but only the question of liability, paragraph (2) shall not apply unless the Court is satisfied that the plaintiff's offer was of a genuine compromise. 26.09 Multiple defendants Where two or more defendants are alleged to be jointly or jointly and severally liable to the plaintiff in respect of a debt or damages and rights of contribution or indemnity appear to exist between the defendants, the consequences as to costs referred to in Rule 26.08 shall not apply to an offer of compromise unless— (a) in the case of an offer made by the plaintiff, the offer is made to all the defendants, and is an offer of compromise of the claim against all of them; (b) in the case of an offer made to the plaintiff— (i) the offer is to compromise the claim against all defendants; and (ii) where the offer is made by two or more defendants, by the terms of the offer the defendants who made the offer are jointly or jointly and severally liable to the plaintiff for the whole amount of the offer. r. 26.09 -- 169 of 641 -- Order 26 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 139 26.10 Offer to contribute (1) Where in any proceeding a defendant makes a claim (in this Rule called "a contribution claim") to recover contribution or indemnity against any person, whether a defendant to the proceeding or not, in respect of any claim for a debt or damages made by the plaintiff in the proceeding, any party to the contribution claim may serve on any other party to the contribution claim an offer to contribute toward a compromise of the claim made by the plaintiff on the terms specified in the offer. (2) The Court may take an offer to contribute into account in determining whether it should order that the party on whom the offer to contribute was served should pay the whole or part of— (a) the costs of the party who made the offer; (b) any costs which that party is liable to pay to the plaintiff. (3) Rules 26.04 and 26.05, with any necessary modification, shall apply to an offer to contribute as if it were an offer of compromise. 26.11 Transitional This Order as in force immediately before 1 September 1999 continues to apply to— (a) an offer of compromise served under Part 2 of this Order; and (b) an offer to compromise served under Part 3 of this Order— before that date. r. 26.10 -- 170 of 641 -- Order 26 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 140 PART 3—OFFER TO COMPROMISE ON APPEAL * * * * * 26.12 Appeal to Court of Appeal (1) Where notice of appeal to the Court of Appeal has been served, a party may serve on another party an offer to compromise the appeal on the terms specified in the offer. (2) The offer to compromise may be on terms that take into account any cross-appeal. (3) Where on an appeal— (a) a party has made an offer in writing to the other party (whether or not expressed to be without prejudice) to compromise the appeal on the terms specified in the offer; (b) the offer was open to be accepted for a reasonable time, but was not accepted; and (c) the party making the offer obtains an order on the appeal no less favourable to that party than the terms of the offer— the Court of Appeal shall take those matters, and also the stage of the appeal at which the offer was made, into account in determining what order for costs to make in respect of the appeal. (4) The Court of Appeal, in exercising its discretion as to costs in accordance with paragraph (3), may order that the party on whom the offer was served pay the costs of the party who made the offer, taxed on a solicitor and client basis, from the commencement of the appeal, from the day the offer was served or from any other time that the Court thinks fit. r. 26.12 -- 171 of 641 -- Order 26 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 141 (5) Unless the offer to compromise provides that the offer is not made without prejudice, no statement of the fact that an offer to compromise has been made shall be contained in any affidavit and no communication with respect to the offer shall be made to the Court of Appeal until the appeal has been determined save as to costs. __________________ r. 26.12 -- 172 of 641 -- Order 27 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 142 ORDER 27 CONTENT AND FORM OF COURT DOCUMENTS 27.01 Conformity with Rules Except to the extent that the nature of the document renders compliance impracticable, a document prepared by a party for use in the Court shall be prepared in accordance with these Rules. 27.02 Heading and title of document (1) A document shall— (a) be headed "In the Supreme Court of Victoria at", stating in which office of the Court the proceeding commenced; and (b) show any identifying number assigned by the Court to the proceeding. (2) Where a proceeding is commenced by originating motion and the claim of the plaintiff arises under any Act, the heading of a document shall also state "In the matter of", identifying the specific provision relied on. (3) Subject to paragraphs (5) and (6), the heading of a document shall include the title to the proceeding and the title to the proceeding shall name all the parties. (4) Except where otherwise provided by these Rules, a document in a proceeding in which there is no defendant shall be entitled "The application of", naming the plaintiff. (5) Where there are more than two plaintiffs, the heading of a document shall state the full name of the first plaintiff followed by the words "and others" and similarly with respect to defendants and other parties. r. 27.01 -- 173 of 641 -- Order 27 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 143 (6) In the case of a document which is originating process or a judgment or order authenticated in accordance with Order 60 or process of execution, if the heading of the document is in accordance with paragraph (5)— (a) immediately after the words "and others" in the title to the document there shall follow the words "according to the schedule"; and (b) a schedule stating the full names of all the parties to the proceeding, and dated, shall be part of the document. 27.03 Form of document (1) A document shall— (a) be of durable white paper 297 millimetres by 210 millimetres, the size known as International Paper Size A4; and (b) be capable of receiving writing in ink. (2) Except in the case of a form published by a law stationer, one side only of the paper shall be used, with double spacing between the lines and a left-hand margin of at least 40 millimetres. (3) The text of a document shall be printed or typewritten and shall be clear, sharp, legible and permanent. (4) A document shall not bear any erasure or alteration that causes material disfigurement. (5) Subject to Rule 27.02(5) and (6), the heading of the document shall be indorsed on the first sheet of the document and shall be followed immediately by a short description of the document. (6) The heading shall occupy a space at the top of the first sheet of the document not exceeding 100 millimetres in depth. r. 27.03 -- 174 of 641 -- Order 27 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 144 (7) The description of the document shall, in the case of an affidavit, include the name of the deponent. (8) A document shall also be indorsed on the first sheet with— (a) the date of the document; (b) the party or other person on whose behalf it is filed; (c) if a solicitor prepares the document, particulars in accordance with paragraph (11); and (d) if the party or person on whose behalf the document is filed is acting without a solicitor, particulars in accordance with paragraph (12). (9) The indorsements referred to in paragraph (8) shall occupy a space immediately following the description of the document and not exceeding 50 millimetres in depth. (10) Paragraph (8)(a) is satisfied by indorsement with— (a) in the case of originating process or a summons, the date of filing; (b) in the case of a pleading, the date the document was made; (c) in the case of an affidavit, the date of swearing. (11) The particulars referred to in paragraph (8)(c) are— (a) the name, address, telephone number, document exchange number and code reference of the solicitor's firm; and r. 27.03 -- 175 of 641 -- Order 27 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 145 (b) the name of an individual in the firm to whom reference can be made in respect of the proceeding. (12) The particulars referred to in paragraph (8)(d) are the name, address and telephone number of the party or other person on whose behalf the document is filed. (13) A document or copy document which is to be filed shall not be folded and, if comprising more than one sheet, shall be fastened only at the top left hand corner. (14) The Court may require any document to be prepared in any manner it thinks fit. 27.04 Numbers Dates, amounts and other numbers shall be expressed in figures and not in words. 27.05 Copies on request (1) A party who prepares a document for use in the Court shall, on the request of any other party entitled to a copy of the document and on payment of a charge at the rate set forth in Appendix A for photocopying a document, supply that party with a photocopy of the document. (2) A person against whom an order is made without notice shall be entitled to a copy of any document used in support of the application for the order, and paragraph (1) shall apply accordingly. 27.06 Prothonotary refusing to seal or accept document (1) The Prothonotary may refuse to seal an originating process without the direction of the Court where the Prothonotary considers that the form or contents of the document show that were the document to be sealed the proceeding so commenced would be irregular or an abuse of the process of the Court. r. 27.04 -- 176 of 641 -- Order 27 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 146 (2) Where a document for use in the Court is not prepared in accordance with these Rules or any order of the Court— (a) the Prothonotary may refuse to accept it for filing without the direction of the Court; (b) the Court may order that the party responsible shall not be entitled to rely upon it in any manner in the proceeding until a document which is duly prepared is made available. (3) The Court may direct the Prothonotary to seal an originating process or accept a document for filing. 27.07 Scandalous matter Where a document for use in the Court contains scandalous, irrelevant or otherwise oppressive matter, the Court may order— (a) that the matter be struck out; or (b) if the document has been filed, that it be taken off the file. __________________ r. 27.07 -- 177 of 641 -- Order 28 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 147 ORDER 28 FILING AND SEALING OF COURT DOCUMENTS 28.01 How document filed (1) Subject to paragraph (2), a document in a proceeding is filed by filing it— (a) in the office of the Prothonotary or, where a proceeding is commenced in an office of the Court outside Melbourne, in that office; or (b) with the proper officer in court. (2) A summons in respect of an application to a Master or the Taxing Master shall be filed in accordance with Rule 46.04. 28.02 Proceedings commenced outside Melbourne Unless the Court otherwise orders or the Prothonotary or a Deputy Prothonotary, as the case requires, allows— (a) a document filed in an office of the Court outside Melbourne shall remain in the custody of the Deputy Prothonotary at that office; (b) a document in a proceeding commenced in an office of the Court outside Melbourne shall not be filed in any other office. 28.03 Date of filing The Prothonotary or Deputy Prothonotary, as the case requires, shall indorse the date and time of filing on every document filed. r. 28.01 -- 178 of 641 -- Order 28 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 148 28.04 Seal of Court (1) The Senior Master, every Master, the Taxing Master, the Prothonotary, every Judge's Associate, every Master's Associate and any Registrar of a list shall each have in his or her custody a stamp, the design of which shall as near as practicable be the same as the design of the seal of the Court, with the addition of, in the case of— (a) the Senior Master, the words "Senior Master"; (b) a Master, the word "Master"; (c) the Taxing Master, the words "Taxing Master"; (d) the Prothonotary, the word "Prothonotary"; (e) a Judge's Associate, the words "Judge's Associate"; (f) a Master's Associate, the words "Master's Associate"; (g) a Registrar of a list, the words "Registrar" and the name of the list. (2) Each Deputy Prothonotary of an office of the Court outside Melbourne shall have in his or her custody a stamp the design of which shall, as nearly as practicable be the same as the design of the seal of the Court with the addition of the words "Deputy Prothonotary" and the name of the place where that office is situated. (3) Marking a document or a copy of a document with a stamp referred to in paragraph (1) or (2) is sufficient compliance with any requirement of these Rules or an order of the Court that the document or copy be sealed with the seal of the Court. r. 28.04 -- 179 of 641 -- Order 28 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 149 28.05 Inspection of documents (1) When the office of the Court is open, any person may, on payment of the proper fee, inspect and obtain a copy of any document filed in a proceeding. (2) Notwithstanding paragraph (1)— (a) no person may inspect or obtain a copy of a document which the Court has ordered remain confidential; (b) a person not a party may not, without leave of the Court, inspect or obtain a copy of a document which in the opinion of the Prothonotary ought to remain confidential to the parties. 28.06 Production of Court document Production to the Court of a document in a proceeding shall be obtained— (a) on the resumed hearing of an application which has been adjourned otherwise than to a fixed date; or (b) on an application without notice— by filing a notice to produce the document in the office of the Prothonotary or, where the document is in an office of the Court outside Melbourne, in that office. __________________ r. 28.05 -- 180 of 641 -- Order 29 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 150 ORDER 29 DISCOVERY AND INSPECTION OF DOCUMENTS 29.01 Application and definition (1) Except where the Rules of this Order otherwise provide, the Order applies only— (a) to a proceeding commenced by writ; and (b) to a proceeding in respect of which an order has been made under Rule 4.07(1). (2) In this Order "possession" means possession, custody or power. 29.02 Notice for discovery (1) Where the pleadings between any parties are closed, any of those parties may, by notice for discovery served on any other of those parties, require the party served to make discovery of all documents which are or have been in that party's possession relating to any question raised by the pleadings. (2) A notice for discovery shall be in Form 29A. (3) A notice for discovery served before the pleadings are closed shall be taken to have been served on the day after the pleadings close. 29.03 Discovery after notice A party upon whom a notice for discovery is served shall make discovery of documents within 42 days after— (a) service of the notice; or r. 29.01 -- 181 of 641 -- Order 29 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 151 (b) the day upon which the notice is taken by virtue of Rule 29.02(3) to have been served— whichever is the later. 29.04 Affidavit of documents An affidavit of documents for the purpose of making discovery of documents shall be in Form 29B and shall— (a) identify the documents which are or have been in the possession of the party making the affidavit; (b) enumerate the documents in convenient order and shall describe each document or, in the case of a group of documents of the same nature, shall describe the group, sufficiently to enable the document or group to be identified; (c) distinguish those documents which are in the possession of the party making the affidavit from those that have been but are no longer in that party's possession, and shall as to any document which has been but is no longer in the possession of the party— (i) state when the party parted with the document; and (ii) the party's belief as to what has become of it; (d) where the party making the affidavit claims that any document in that party's possession is privileged from production, state sufficiently the grounds of the privilege. r. 29.04 -- 182 of 641 -- Order 29 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 152 29.05 Order limiting discovery In order to prevent unnecessary discovery, the Court may, before or after any party is required to make discovery by virtue of a notice for discovery served in accordance with Rule 29.02, order that discovery by any party shall not be required or shall be limited to such documents or classes of document, or to such of the questions in the proceeding, as are specified in the order. 29.06 Co-defendants and third party (1) A defendant who has pleaded shall be entitled to obtain from the party making discovery a copy of any affidavit of documents served on— (a) the plaintiff by any other defendant to the proceeding; (b) any other defendant by the plaintiff. (2) Where the defendant has served a counter-claim joining another person with the plaintiff as defendant to the counter-claim in accordance with Rule 10.03, paragraph (1), with any necessary modification, shall apply as if— (a) the defendant were the plaintiff; and (b) the plaintiff and the other person were the defendants. (3) A third party who has pleaded shall be entitled to obtain from the party making discovery a copy of any affidavit of documents served— (a) by the plaintiff on the defendant by whom the third party was joined; (b) on the plaintiff by that defendant. r. 29.05 -- 183 of 641 -- Order 29 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 153 29.07 Order for discovery (1) In a proceeding within Rule 29.01, notwithstanding that the pleadings between any parties are not closed, the Court may order that any of those parties make discovery of documents to any other of those parties. (2) In a proceeding not within Rule 29.01, the Court may at any stage order any party to make discovery of documents. (3) An order under paragraph (1) or (2) may be limited to such documents or classes of document, or to such questions in the proceeding, as the Court thinks fit. 29.08 Order for particular discovery (1) This Rule applies to any proceeding in the Court. (2) Where, at any stage of a proceeding, it appears to the Court from evidence or from the nature or circumstances of the case or from any document filed in the proceeding that there are grounds for a belief that some document or class of document relating to any question in the proceeding may be or may have been in the possession of a party, the Court may order that party to make and serve on any other party an affidavit stating— (a) whether that document or any, and if so what, document or documents of that class is or has been in that party's possession; and (b) if it has been but is no longer in that party's possession, when the party parted with it and that party's belief as to what has become of it. (3) An order may be made against a party under paragraph (2) notwithstanding that the party has already made or been required to make an affidavit of documents. r. 29.07 -- 184 of 641 -- Order 29 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 154 29.09 Inspection of documents referred to in affidavit of documents (1) A party upon whom an affidavit of documents is served in accordance with Rule 29.03 or in accordance with an order made under Rule 29.07 or 29.08 and a party to whom an affidavit of documents is supplied in accordance with Rule 29.06 may, by notice to produce served on the party making the affidavit, require that the party produce the documents in that party's possession referred to in the affidavit (other than any which that party objects to produce) for inspection. (2) A party upon whom a notice to produce is served in accordance with paragraph (1) shall, within seven days after that service, serve on the party requiring production a notice appointing a time within seven days after service of the notice under this paragraph when, and a place where, the documents may be inspected. (3) A notice to produce under paragraph (1) shall be in Form 29C. (4) A party to whom documents are produced for inspection under this Rule may take copies of the documents. (5) For the purpose of paragraph (4), taking a copy of a document includes photocopying the document, and if the party to whom a document is produced states that the party wishes to have it photocopied, the party producing the document shall at that party's option either— (a) allow the other party to photocopy the document at such place as the parties agree; or (b) supply the other party with a photocopy of the document. r. 29.09 -- 185 of 641 -- Order 29 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 155 (6) Unless the Court otherwise orders, the cost of a photocopy of a document supplied to a party in accordance with paragraph (5) shall— (a) be borne by that party in the first instance and be ultimately a cost in the proceeding; and (b) be in the amount allowed in Appendix A for copy documents. 29.10 Inspection of documents referred to in pleadings and affidavits (1) This Rule applies to any proceeding. (2) Where, in the originating process filed by a party or in any pleading, interrogatories or answers, affidavit, or notice filed by a party, reference is made to a document, any other party may, by notice to produce served on that party, require that party to produce the document for inspection. (3) Except as provided by paragraph (4), Rule 29.09, with any necessary modification, shall apply to the production and inspection of a document under this Rule. (4) A party upon whom a notice to produce is served under paragraph (2) shall not be required to produce a document for inspection where— (a) the party claims that the document is privileged from production, and that party makes and serves on the other party an affidavit in which the party— (i) makes that claim; and (ii) states sufficiently the grounds of the privilege; r. 29.10 -- 186 of 641 -- Order 29 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 156 (b) the document is not in that party's possession, and the party makes and serves on the other party an affidavit in which the party— (i) states that fact; and (ii) states to the best of the party's knowledge, information and belief where the document is and in whose possession it is; and (iii) where the document has been but is no longer in the party's possession, when the party parted with it and the party's belief as to what has become of it. (5) A notice to produce under paragraph (2) shall be in Form 29C. 29.11 Order for discovery Where a party— (a) fails to make discovery of documents in accordance with Rules 29.03 and 29.04; (b) fails to serve a notice appointing a time for inspection of documents as required by Rule 29.09 or 29.10; (c) objects to produce any document for inspection; (d) offers inspection unreasonable as to time or place; or (e) objects to allow any document to be photocopied or to supply a photocopy of the document— the Court may order the party to do such act as the case requires. r. 29.11 -- 187 of 641 -- Order 29 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 157 29.12 Direction as to documents (1) Where a party is entitled under this Order to inspect a document which consists of— (a) a video tape, audio tape, disc, film or other means of recording, the Court may give directions— (i) for the screening or playing thereof; and (ii) for the making by or supply to the party of a transcript of the recording (insofar as it can be transcribed) or a copy of the recording; (b) information which has been processed by or is stored in a computer, the Court may give directions for making the information available. (2) On an application under paragraph (1) the Court may make an order for the costs and expenses of the party against whom an order giving directions is sought. (3) The Court may make an order giving directions on condition that the party applying give security for the costs and expenses of the party against whom the order is made. 29.12.1 Default notice (1) This Rule shall not limit the power of the Court under Rule 24.02. (2) If a party required to make discovery of documents fails to make discovery within the time limited by these Rules or fixed by any order of the Court, the party entitled to the discovery may serve on that party a notice in Form 29D. r. 29.12 -- 188 of 641 -- Order 29 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 158 (3) If, within seven days after service of a notice under paragraph (2), the party on whom the notice is served does not make discovery, the Court may order— (a) if the party required to make discovery is the plaintiff, that the proceeding be dismissed; (b) if the party required to make discovery is a defendant, that the defendant's defence, if any, be struck out. (4) This Rule, with any necessary modification, shall apply to a counterclaim and to a claim by third party notice as if the counterclaim or the third party claim were a proceeding. (5) For the purpose of Rule 21.02(1), a defendant whose defence is struck out in accordance with paragraph (3) shall be taken to be a defendant who, being required to serve a defence, does not do so within the time limited for that purpose. (6) The Court may set aside or vary an order made under paragraph (3). 29.13 Inspection of document by Court Where an application is made for an order under Rule 29.11 and a claim is made that the document is privileged from production or objection to production is made on any other ground, the Court may inspect the document for the purpose of deciding the validity of the claim or objection. 29.14 Default on discovery (1) Without limiting Rule 24.02, a party who does not within the time limited comply with an order under Rule 29.08(2) or 29.11, or an order under Rule 29.12(1) giving directions shall be liable to committal. r. 29.13 -- 189 of 641 -- Order 29 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 159 (2) Service on the solicitor for a party of an order for discovery or production of documents made against that party shall be sufficient service to found an application for committal of the party disobeying the order but the party may show in answer to the application that that party had no notice or knowledge of the order. (3) A solicitor on whom such an order made against the solicitor's client is served and who fails without reasonable excuse to give notice thereof to the solicitor's client shall be liable to committal. 29.15 Continuing obligation to make discovery A party who has made an affidavit of documents is under a continuing obligation to make discovery of documents with respect to documents of which the party obtains possession after making the affidavit. 29.16 Discovery after directions If the Court gives directions about discovery or inspection of documents, no party may, without further order, serve notice for discovery on any other party except in accordance with those directions. __________________ r. 29.15 -- 190 of 641 -- Order 30 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 160 ORDER 30 INTERROGATORIES 30.01 Definitions In this Order, unless the context or subject matter otherwise requires— "interrogating party" means a party who serves interrogatories; "party interrogated" means a party on whom interrogatories are served; "servant or agent", in relation to a corporation, includes officer and member. 30.02 When interrogatories allowed (1) Subject to the other paragraphs of this Rule, any party may serve interrogatories on another party relating to any question between them in the proceeding. (2) Where the pleadings between any parties are closed, interrogatories may be served without leave of the Court by any of those parties on any other of them. (3) Where paragraph (2) does not apply, the Court may order that any party may serve interrogatories on any other party. (4) By leave of the Court an interrogating party may serve further interrogatories. (5) For the purpose of Rule 63.70, an interrogatory served without reasonable cause is work which is not necessary. r. 30.01 -- 191 of 641 -- Order 30 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 161 30.03 Statement as to who to answer Where interrogatories are to be answered by two or more parties, the interrogating party shall state in the document containing the interrogatories which of them each party is required to answer. 30.04 Filing interrogatories and time for answers Where interrogatories are served— (a) the interrogating party shall forthwith file a copy; (b) the party interrogated shall within 42 days after service answer by affidavit, file it and serve a copy on the interrogating party. 30.05 Source for answers to interrogatories (1) A party interrogated shall answer each interrogatory insofar as it is not objectionable in accordance with the following provisions— (a) the party shall answer from the party's own knowledge of the fact or matter which is inquired after by the interrogatory, and, if the party has no such knowledge, from any belief the party has as to that fact or matter; (b) a party who has no knowledge of the fact or matter inquired after shall be taken not to have a belief as to the fact or matter where the party has no information relating to the fact or matter on which to form a belief or where, if the party has such information, for reasonable cause the party has no belief that the information is true; (c) except as provided by paragraph (d), the party shall answer from any belief the party has as to the fact or matter inquired after irrespective of the source of the information on which the belief is formed; r. 30.03 -- 192 of 641 -- Order 30 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 162 (d) the party shall not be required to answer from the party's belief as to any fact or matter where the belief is formed on information that was given to the party in a communication the contents of which the party could not, on the ground of privilege, be compelled to disclose; (e) where the party has no personal knowledge of the fact or matter inquired after, the party shall, for the purpose of enabling the party to form a belief as to the fact or matter (so far as the party can), make all reasonable inquiries to determine— (i) whether any person has knowledge of the fact or matter which was acquired by that person in the capacity of that party's servant or agent; and (ii) if that is the case, what that knowledge is; (f) the party shall make the inquiries referred to in paragraph (e) notwithstanding that at the time the party is required to answer the interrogatory any person having the relevant knowledge has ceased to be that person's servant or agent; (g) where the party is a corporation, this Rule shall apply, with any necessary modification, as if— (i) the person who answers the interrogatories on behalf of the corporation were that party; and (ii) in particular, as if the reference in paragraph (e) to a servant or agent of the party were a reference to a servant or agent of the corporation. r. 30.05 -- 193 of 641 -- Order 30 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 163 (2) Where an interrogatory relates to a fact or matter alleged in the pleading of the party interrogated, nothing in paragraph (1)(d) shall affect the right of the interrogating party to obtain information as to that fact or matter pursuant to an application of the kind referred to in Rule 13.11. 30.06 How interrogatories to be answered (1) A party interrogated shall answer each interrogatory specifically by answering the substance of the interrogatory without evasion except insofar as it is objectionable on any of the grounds referred to in Rule 30.07. (2) Where the party objects to answer an interrogatory the party shall state briefly— (a) the ground of objection; and (b) the facts, if any, on which it is based. 30.07 Ground of objection to answer (1) A party interrogated shall answer each interrogatory except to the extent that it may be objected to on any of the following grounds— (a) the interrogatory does not relate to any question between the party and the interrogating party; (b) the interrogatory is unclear or vague or is too wide; (c) the interrogatory is oppressive; (d) the interrogatory requires the party to express an opinion which the party is not qualified to give; (e) privilege. r. 30.06 -- 194 of 641 -- Order 30 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 164 (2) Without limiting paragraph (1)(a), an interrogatory that does not relate to any question includes an interrogatory the sole purpose of which is to— (a) impeach the credit of the party interrogated; (b) enable the interrogating party to ascertain whether the party has a claim or defence other than that which the party has raised in the proceeding; (c) enable the interrogating party to ascertain the evidence by which the party interrogated intends to prove the person's case, including the identity of witnesses. (3) A party may not object to answer an interrogatory on the ground that the party cannot answer without going to a place which is not the party's usual place of residence or business if the interrogating party undertakes to pay the reasonable cost of the person going there, unless the Court otherwise orders. 30.08 Who to answer interrogatories (1) Interrogatories shall be answered— (a) where the party interrogated is— (i) a natural person, by the party; (ii) a person under disability, by that person or his or her litigation guardian, whichever is appropriate; (iii) a corporation, by an officer of the corporation or by any person duly authorised by it to answer; or (b) by such person as the Court may direct. r. 30.08 -- 195 of 641 -- Order 30 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 165 (2) The answers of a person made in accordance with a direction given under paragraph (1)(b) shall be as effective and binding in all respects as if made by the party interrogated. 30.09 Failure to answer interrogatories Where a party interrogated fails to answer the interrogatories within the time limited or does not answer the interrogatories sufficiently, the Court may order that the party answer or answer further, as the case may be, within such time as it directs. 30.09.1 Default notice (1) This Rule shall not limit the power of the Court under Rule 24.02. (2) If a party interrogated fails to answer interrogatories within the time limited by the Rules or fixed by any order of the Court, the interrogating party may serve on that party a notice in Form 30A. (3) If, within seven days after service of a notice under paragraph (2), the party interrogated does not answer the interrogatories, the Court may order— (a) if the party interrogated is the plaintiff, that the proceeding be dismissed; (b) if the party interrogated is a defendant, that the defendant's defence, if any, be struck out. (4) This Rule, with any necessary modification, shall apply to a counterclaim and to a claim by third party notice as if the counterclaim or the third party claim were a proceeding. r. 30.09 -- 196 of 641 -- Order 30 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 166 (5) For the purpose of Rule 21.02(1), a defendant whose defence is struck out in accordance with paragraph (3) shall be taken to be a defendant who, being required to serve a defence, does not do so within the time limited for that purpose. (6) The Court may set aside or vary an order made under paragraph (3). 30.10 Non-compliance with order (1) Without limiting Rule 24.02, a party who does not within the time limited comply with an order made under Rule 30.09 shall be liable to committal. (2) Service on the solicitor for a party of an order made against that party under Rule 30.09 shall be sufficient service to found an application for committal of the party disobeying the order, but the party may show in answer to the application that the party had no notice or knowledge of the order. (3) A solicitor on whom such an order made against the solicitor's client is served and who fails without reasonable excuse to give notice thereof to the solicitor's client shall be liable to committal. 30.11 Answers as evidence (1) On an application in or at the trial of a proceeding a party may tender as evidence— (a) one or more answers to interrogatories given by another party without tendering the others; (b) part of an answer to an interrogatory without tendering the whole of the answer. r. 30.10 -- 197 of 641 -- Order 30 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 167 (2) Upon the tender of the whole or part of an answer to an interrogatory, the Court may look at the whole of the answers and if any other answer or any part of an answer is so connected with the matter tendered that the matter tendered ought not to be used without the other answer or part, the Court may reject the tender unless that other answer or part is also tendered. (3) Where the answer of a party interrogated is stated to be given on the basis of belief, and the answer is received into evidence, the Judge or the jury, as the case may be, shall give the answer such weight as the circumstances require. 30.12 Interrogatories after directions If the Court gives directions about interrogatories or answers to interrogatories, no party may, without further order, serve interrogatories on any other party except in accordance with those directions. __________________ r. 30.12 -- 198 of 641 -- Order 31 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 168 ORDER 31 DISCOVERY BY ORAL EXAMINATION 31.01 Definitions In this Order, unless the context or subject matter otherwise requires— "examining party" means a party who orally examines or is to examine orally another party in accordance with this Order; "examiner" means examiner appointed under this Order; "party examined" means a party orally examined or to be orally examined by another party in accordance with this Order, and includes, where the party is a corporation, the officer of the corporation or other person attending to be examined in accordance with Rule 31.08(1). 31.02 When available (1) Where under these Rules a party may serve interrogatories on another party relating to any question between them in the proceeding, that party may, subject to this Rule, orally examine the other party in relation to that question. (2) A party shall not be orally examined by another except with the party's consent given in accordance with Rule 31.04. (3) A party who has consented to be orally examined by another shall not be required to answer written interrogatories served by the other unless that party has undertaken to do so. r. 31.01 -- 199 of 641 -- Order 31 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 169 31.03 Party a corporation A party which is a corporation may be orally examined under this Order. 31.04 How consent given The consent of a party to be orally examined shall— (a) be in writing; (b) state the name of the examiner; and (c) be filed. 31.05 Effect of consent Where the consent of a party to be orally examined is filed under Rule 31.04— (a) the party shall be liable to be examined in accordance with this Order; (b) if the party fails to comply with an order of the Court to attend an examination or answer a question, Rule 24.02, with any necessary modification, shall apply as if the failure were a failure of a kind referred to in that Rule; (c) at the trial of or on the hearing of an application in the proceeding— (i) the examining party may, in accordance with Rule 30.11, use in evidence the answers given under this Order by the party examined; and (ii) that Rule, with any necessary modification, shall apply as if the answers were answers of the party examined to written interrogatories served by the examining party. r. 31.03 -- 200 of 641 -- Order 31 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 170 31.06 Appointment of examiner (1) An examination shall be held before an examiner who has been appointed by agreement of the parties and who consents to be appointed. (2) The consent of the examiner shall be in writing and be filed. 31.07 Attendance on examination (1) The time and place of the examination shall be determined by the examiner. (2) The party examined shall attend the examination to be examined by the examining party. (3) Counsel and solicitor for each party may attend the examination. (4) If the party examined fails to attend an examination, the Court may order that the party attend to be examined in accordance with this Order at such time and place as it directs. 31.08 Party a corporation (1) Where the party examined is a corporation— (a) an officer of the corporation; or (b) by agreement of the party examined and the examining party, a person who is not an officer— shall be examined and any answer given shall be taken to be the answer of the corporation. (2) Unless the party examined and the examining party otherwise agree, nothing in paragraph (1) shall be taken to authorise the examination of more than one person. r. 31.06 -- 201 of 641 -- Order 31 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 171 31.09 Powers of examiner The examiner— (a) may administer oaths and receive affirmations; and (b) may adjourn the examination from time to time and from place to place. 31.10 Record of examination (1) A deposition of the examination of the party examined shall be made. (2) Where objection is taken to any question, proceedings before the examiner with respect to the objection shall be recorded in the deposition. (3) The deposition shall be authenticated by the signature of the examiner, and forthwith after signing the deposition the examiner shall give notice in writing to the party examined and the examining party of the authentication. 31.11 How party to be examined (1) On the examination the party examined shall be questioned by or on behalf of the examining party and no questions shall be asked of the party examined by that party's own counsel or solicitor. (2) The examination shall be in the nature of an examination-in-chief of the party examined by the examining party. (3) The party examined shall answer each question asked of that party unless it may be objected to on any of the grounds referred to in Rule 30.07, and that Rule, with any necessary modification, shall apply as if the examination were an examination of the party by written interrogatories. r. 31.09 -- 202 of 641 -- Order 31 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 172 (4) Where the party examined answers a question, the party shall answer in accordance with Rules 30.05 and 30.06(1), and those Rules, with any necessary modification, shall apply as if the examination were an examination of the party by written interrogatories. (5) A question may be answered by the counsel or solicitor for the party examined, and the answer shall be taken to be the answer of the party. (6) Where Rule 30.05(1)(e) applies, the examiner may adjourn the examination to enable the party examined to make the inquiries referred to in that Rule. 31.12 Procedure on objection to question (1) This Rule applies where objection is taken to answering a question on the examination. (2) The party examined shall state each ground of objection to answering, but, unless the Court otherwise orders, shall not be required to answer the question. (3) The examining party may apply to the Court under Rule 31.13 for an order that the party examined answer the question. 31.13 Order to answer question (1) An application by the examining party under Rule 31.12(3) shall be made to a Master by summons identifying each question to which the application relates. (2) The Master may order that the party examined shall answer any question in respect of which the application is made. r. 31.12 -- 203 of 641 -- Order 31 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 173 (3) If an order is made under paragraph (2), unless the Master otherwise orders, the party shall answer the question before the examiner, and the Master may direct that the examining party be at liberty to ask such further questions of the party examined as the case requires. (4) The Master— (a) may order that the party examined shall answer the question in writing; and (b) may direct whether that answer shall be given on oath or not. 31.14 Costs The costs of an examination shall be costs in the proceeding, unless the Court otherwise orders. __________________ r. 31.14 -- 204 of 641 -- Order 32 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 174 ORDER 32 PRELIMINARY DISCOVERY AND DISCOVERY FROM NON-PARTY 32.01 Definitions In this Order, unless the context or subject matter otherwise requires— "applicant" means applicant for an order under this Order; "description" includes the name, place of residence, place of business, occupation and sex of the person against whom the applicant desires to bring a proceeding and whether that person is an individual or a corporation; "possession" means possession, custody or power. 32.02 Privilege An order made under this Order shall not operate to require the person against whom the order is made to produce any document or answer any question which, on the ground of privilege, that person is not required to produce or answer. 32.03 Discovery to identify a defendant (1) The Court may make an order under paragraph (2) where— (a) an applicant, having made reasonable inquiries, is unable to ascertain the description of a person sufficiently for the purpose of commencing a proceeding in the Court against that person (in this Rule called "the person concerned"); and r. 32.01 -- 205 of 641 -- Order 32 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 175 (b) it appears that some person has or is likely to have knowledge of facts, or has or is likely to have or has had or is likely to have had in that person's possession any document or thing, tending to assist in such ascertainment. (2) The Court may order that the person, and in the case of a corporation, the corporation by an appropriate officer, shall— (a) attend before the Court to be orally examined in relation to the description of the person concerned; (b) make discovery to the applicant of all documents which are or have been in his, her or its possession relating to the description of the person concerned. (3) Where the Court makes an order under paragraph (2)(a), it may— (a) order that the person or corporation against whom or which the order is made shall produce to the Court on the examination any document or thing in his, her or its possession relating to the description of the person concerned; (b) direct that the examination be held before a Master. 32.04 Party an applicant Rule 32.03, with any necessary modification, shall apply where the applicant is a party to a proceeding and wishes to make in the proceeding against a person who is not a party a claim which the applicant could properly have made in the proceeding had the person been a party. r. 32.04 -- 206 of 641 -- Order 32 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 176 32.05 Discovery from prospective defendant Where— (a) there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description the applicant has ascertained; (b) after making all reasonable inquiries, the applicant has not sufficient information to enable the applicant to decide whether to commence a proceeding in the Court to obtain that relief; and (c) there is reasonable cause to believe that that person has or is likely to have or has had or is likely to have had in that person's possession any document relating to the question whether the applicant has the right to obtain the relief and that inspection of the document by the applicant would assist the applicant to make the decision— the Court may order that that person shall make discovery to the applicant of any document of the kind described in paragraph (c). 32.06 Party an applicant Rule 32.05, with any necessary modification, shall apply where the applicant is a party to a proceeding and there is reasonable cause to believe that the applicant has or may have the right to obtain against a person who is not a party relief which the applicant could properly have claimed in the proceeding had the person been a party. r. 32.05 -- 207 of 641 -- Order 32 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 177 32.07 Discovery from non-party On the application of any party to a proceeding the Court may order that a person who is not a party and in respect of whom it appears that that person has or is likely to have or has had or is likely to have had in that person's possession any document which relates to any question in the proceeding shall make discovery to the applicant of any such document. 32.08 Procedure (1) An application under Rule 32.03 or 32.05 shall be made by originating motion to which the person against whom the order is sought shall be made respondent. (2) An application under Rule 32.04, 32.06 or 32.07 shall be made by summons served on every party to the proceeding and served personally on the person against whom the order is sought. (3) An order may be made by a Master under any of the Rules referred to in paragraphs (1) and (2). (4) An originating motion under paragraph (1) or a summons under paragraph (2) shall be supported by an affidavit— (a) stating the facts on which the application is made; and (b) specifying or describing the documents or any class of documents in respect of which the order is sought. (5) A copy of the supporting affidavit shall be served on every person on whom the originating motion or the summons is served. r. 32.07 -- 208 of 641 -- Order 32 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 178 32.09 Inspection of documents Rule 29.09, with any necessary modification, shall apply to the inspection of the documents referred to in an affidavit of documents made and served in accordance with this Order as if the affidavit were an affidavit of documents as mentioned in Rule 29.09(1). 32.10 Directions as to documents Rule 29.12, with any necessary modification, shall apply to the inspection of a document under this Order. 32.11 Costs (1) On an application under this Order the Court may make an order for the costs and expenses of the applicant, of the person against whom the order is made or sought and of any party to the proceeding, including the costs of— (a) making and serving any affidavit of documents; (b) producing any document for inspection in accordance with Rule 32.09; or (c) of complying with any direction given under Rule 32.10. (2) The Court may make an order under this Order on condition that the applicant give security for the costs and expenses of the person against whom the order is made. __________________ r. 32.09 -- 209 of 641 -- Order 33 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 179 ORDER 33 MEDICAL EXAMINATION AND SERVICE OF HOSPITAL AND MEDICAL REPORTS 33.01 Application This Order applies to a proceeding in which the plaintiff claims damages for, or otherwise claims in respect of, bodily injury. 33.02 Counterclaim This Order, with any necessary modification, shall apply to a counterclaim by which the defendant makes a claim of the kind referred to in Rule 33.01. 33.03 Definitions In this Order, unless the context or subject matter otherwise requires— "dentist" means— (a) a registered dentist within the meaning of the Dental Practice Act 1999 or a person qualified to be registered in the dentists' division of the register kept under Part 2 of that Act; (b) a person registered or qualified to be registered as a dentist under an enactment of a State or a Territory of the Commonwealth which corresponds to the Dental Practice Act 1999; (c) a person entitled to practise dentistry in a place outside Australia under an enactment of that place corresponding to the Dental Practice Act 1999, whether or not the person does so practise; r. 33.01 -- 210 of 641 -- Order 33 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 180 "examination" means an examination for medical, dental, or psychological purposes as the case requires; "hospital report" means a statement in writing concerning the plaintiff made by or on behalf of a hospital, rehabilitation centre or other like institution; "medical expert" means medical practitioner, dentist or psychologist as the case requires; "medical matters" includes dental matters and psychological matters; "medical practitioner" means— (a) a person registered or qualified to be registered as a medical practitioner under the Medical Practice Act 1994 or any corresponding enactment of another State or a Territory of the Commonwealth; (b) a person entitled to practise medicine in a place out of Australia under an enactment of that place corresponding to the Medical Practice Act 1994, whether or not the person does so practise; "medical report"— (a) means a statement on medical matters concerning the plaintiff whether in writing or oral made by a medical expert; and (b) includes any document which the medical expert intends should be read with the statement whether the document was in existence at the time the statement was made or was a document which the expert obtained or r. 33.03 -- 211 of 641 -- Order 33 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 181 caused to be brought into existence subsequently; "psychologist" means— (a) a registered psychologist within the meaning of the Psychologists Registration Act 2000; or (b) a person qualified to be registered under Part 2 of the Psychologists Registration Act 2000; or (c) a person who practises psychology in a place outside Victoria; "serve", in relation to the service of a medical report, means— (a) where the medical report was in writing, serve a copy; and (b) where the medical report was oral, serve notice in writing of its substance. 33.04 Notice for examination (1) The defendant may request the plaintiff in writing to submit to appropriate examinations by a medical expert or experts at specified times and places. (2) Where a plaintiff refuses or neglects, without reasonable cause, to comply with a request under paragraph (1), the Court may, if the request was on reasonable terms, stay the proceeding. r. 33.04 -- 212 of 641 -- Order 33 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 182 33.05 Expenses (1) The costs of and incidental to the examination shall be costs in the proceeding. (2) Without limiting paragraph (1), the defendant shall, on request by the plaintiff whether before or after the plaintiff is examined, pay to the plaintiff a reasonable sum to meet the plaintiff's travelling and other expenses of, and incidental to, the examination. 33.06 Report of examination of plaintiff (1) A defendant for whom a plaintiff is examined under Rule 33.04 shall as soon as practicable after the examination obtain from the medical expert a medical report. (2) Upon obtaining the medical report the defendant shall forthwith serve the medical report on the plaintiff. (3) If the defendant later obtains another medical report from the medical expert concerning the plaintiff, whether or not the other report is consequent upon a further examination by the medical expert of the plaintiff, the defendant shall forthwith serve the medical report on the plaintiff. 33.07 Service of reports by plaintiff (1) A plaintiff shall serve on each other party who has an address for service in the proceeding any hospital or medical report (other than a hospital or medical report served on or supplied to the plaintiff by another party)— (a) which the plaintiff intends to tender or the substance of which the plaintiff intends to adduce in evidence; or (b) which otherwise the plaintiff intends to use at the trial. r. 33.05 -- 213 of 641 -- Order 33 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 183 (2) The plaintiff shall serve the hospital report or medical report— (a) within seven days after notice of trial under Order 48 is filed and served; and (b) in the case of a hospital report or medical report made to or obtained by or for the plaintiff after the time referred to in paragraph (a), forthwith— or at such other time as the Court directs. 33.08 Service of reports by defendant (1) A defendant shall serve on each other party who has an address for service in the proceeding any hospital report or medical report (other than a hospital report or medical report served on or supplied to the defendant by another party)— (a) which the defendant intends to tender or the substance of which the defendant intends to adduce in evidence; or (b) which otherwise the defendant intends to use at the trial. (2) Paragraph (1) does not require the defendant to serve on the plaintiff a medical report served on the plaintiff under Rule 33.06, but the defendant shall by notice to the plaintiff in writing identify any medical report so served— (a) which the defendant intends to tender or the substance of which the defendant intends to adduce in evidence; or (b) which otherwise the defendant intends to use at the trial. r. 33.08 -- 214 of 641 -- Order 33 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 184 (3) The defendant shall serve the hospital report or medical report and give any notice under paragraph (2)— (a) within 14 days after notice of trial under Order 48 is filed and served; and (b) in the case of a hospital report or medical report made to or obtained by or for the defendant after the time referred to in paragraph (a), forthwith— or at such other time as the Court directs. (4) In this Rule "defendant" includes a third or subsequent party. 33.08.1 Other medical reports to be served Where after a party has served a medical report under Rule 33.07 or Rule 33.08 the medical expert who made the report makes another medical report to the party, then, notwithstanding that the party— (a) no longer intends to tender the medical report so served or to adduce its substance in evidence or to otherwise use it at the trial; or (b) does not intend to tender the other medical report or to adduce its substance in evidence or to otherwise use it at the trial— the party shall serve the other medical report forthwith on each other party who has an address for service in the proceeding. r. 33.08.1 -- 215 of 641 -- Order 33 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 185 33.09 Opinion on liability * * * * * (2) Unless the Court otherwise orders, a party who is required to serve a copy of a hospital report or medical report under this Order may exclude from the copy served— (a) any expression of opinion in the original report on the question of liability; and (b) if the original report contains any statement with respect to the facts on which the opinion is based, any statement with respect to a fact that relates only to the question of liability. 33.10 Material for Court (1) This Rule applies only to a proceeding which is to be tried by a Judge without a jury. (2) If, for the purpose of evidence at the trial a party intends to— (a) use a medical report or a hospital report a copy of which was served under this Order; (b) call the maker of a medical report or a hospital report a copy of which was served under this Order— the party shall deliver a copy of the report for the use of the Court. r. 33.09 -- 216 of 641 -- Order 33 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 186 (3) Copies or reports shall be delivered by delivering them in a sealed envelope bearing the title of the proceeding and stating "Reports delivered by [identify party] pursuant to Rule 33.10"— (a) where Melbourne is the place of trial, to the Listing Master not less than two days before the day fixed for trial; (b) where the place of trial is a place other than Melbourne, to the Deputy Prothonotary not less than two days before the commencement of the sittings at that place. 33.11 Medical report admissible (1) This Rule does not apply in the case of the trial of a proceeding before a Judge with a jury. (2) A medical report which was served under this Order is admissible as evidence of the opinion of the medical expert who gave the report and, where the medical expert's oral evidence of a fact upon which the opinion was based would be admissible, as evidence of that fact. (3) Subject to paragraphs (4) and (5), a medical report may be used in evidence— (a) by the party who served the report; or (b) by any party on whom it was served. (4) If a medical report is tendered by the party who served the report— (a) that party shall cause the medical expert who gave the report to attend at the trial of the proceeding to be cross-examined if notice that such attendance is required is served on the party by any other party not later than five days before the commencement of the trial; and r. 33.11 -- 217 of 641 -- Order 33 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 187 (b) if the medical expert does not attend for cross-examination, the Court may order that the medical report be not received in evidence. (5) If a medical report is tendered by a party on whom the report was served— (a) that party shall cause the medical expert who gave the report to attend at the trial of the proceeding to be cross-examined, and if the medical expert does not attend the Court may order that the medical report be not received in evidence; (b) if the report is received in evidence and the medical expert is cross-examined by any party against whom the report is received, at the conclusion of the cross-examination the party who tendered the report may examine the expert as if by re-examination. 33.12 No evidence unless disclosed in report Save with the leave of the Court or by consent of the parties, a party shall not, except in cross- examination, adduce evidence from a medical expert on medical matters concerning the plaintiff unless that evidence is disclosed by a medical report served in accordance with this Order. __________________ r. 33.12 -- 218 of 641 -- Order 34 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 188 ORDER 34 DIRECTIONS 34.01 Powers of Court (1) At any stage of a proceeding the Court may give any direction for the conduct of the proceeding which it thinks conducive to its effective, complete, prompt and economical determination. (2) A party may apply for directions on the hearing either of a summons filed for the purpose or of a summons for other relief. 34.02 Nature of directions Without limiting Rule 34.01(1), the Court may give directions relating to— (a) amendment of a document, under Rule 36.01; (b) evidence under section 55(7) of the Evidence Act 1958 or under Order 40. 34.03 Admissions and agreements (1) On an application for directions the Court— (a) may take steps with a view to securing that the parties make all admissions and all agreements as to the conduct of the proceeding which ought reasonably to be made by them; and (b) may, by order, record any admission or agreement so made. (2) The Court may, by order, record any refusal to make an admission or an agreement as to the conduct of the proceeding so that the refusal may later, if the Court thinks fit, be taken into account on any question of costs. r. 34.01 -- 219 of 641 -- Order 34 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 189 34.04 Duty to obtain directions Where a party applies for directions any other party who attends on the application shall apply at the same time for any direction which that other party requires and which may be given before trial. __________________ r. 34.04 -- 220 of 641 -- Order 35 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 190 ORDER 35 ADMISSIONS 35.01 Definition In this Order "authenticity of a document" means that a document— (a) is what it purports to be; (b) if an original or described as such, is an original document and was printed, written, signed or executed as it purports to have been; (c) if a copy or described as such, is a true copy. 35.02 Voluntary admission of facts (1) A party, by notice served on another party, may admit, in favour of the other party, for the purpose of the proceeding only, the facts specified in the notice. (2) A party may, by leave of the Court, withdraw an admission made in accordance with paragraph (1). 35.03 Notice for admission of facts (1) A party may serve on another party a notice stating that unless that party, within a time to be expressed in the notice (which shall not be less than 14 days after service), disputes the facts specified in the notice, that party shall, for the purpose of the proceeding only, be taken to admit those facts. (2) If the party served with the notice does not dispute any fact specified by serving notice that that party disputes the fact within the time allowed for that purpose, that party shall, for the purpose of the proceeding only, be taken to admit that fact. r. 35.01 -- 221 of 641 -- Order 35 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 191 (3) By leave of the Court, a party may withdraw an admission which is taken to have been made under paragraph (2). (4) A notice under paragraph (1) shall be in Form 35A and a notice under paragraph (2) shall be in Form 35B. 35.04 Judgment on admissions (1) Where a party makes admissions of fact in a proceeding, whether by that party's pleading or otherwise, the Court may, on the application of any other party, give the judgment or make the order to which the applicant is entitled on those admissions. (2) The Court may exercise its powers under paragraph (1) without waiting for the determination of any other question in the proceeding. 35.05 Notice for admission of documents (1) A party may serve on another party a notice stating that unless that party, within a time to be expressed in the notice (which shall not be less than 14 days after service), disputes the authenticity of the documents mentioned in the notice, that party shall, for the purpose of the proceeding only, be taken to admit the authenticity of those documents. (2) If the party served with the notice does not dispute the authenticity of any document mentioned by serving notice that the party disputes its authenticity within the time allowed for that purpose, that party shall, for the purpose of the proceeding only, be taken to admit its authenticity. r. 35.04 -- 222 of 641 -- Order 35 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 192 (3) By leave of the Court a party may, withdraw an admission which is taken to have been made under paragraph (2). (4) A notice under paragraph (1) shall be in Form 35A and a notice under paragraph (2) shall be in Form 35B. 35.06 Cost of non-admission of fact or document Where a party serves a notice under Rule 35.03(2) or 35.05(2) disputing a fact or the authenticity of a document, and afterwards that fact or document is proved in the proceeding, liability for costs shall be determined in accordance with Rule 63.18. 35.07 Restrictive effect of admission An admission made by a party under this Order is for the purpose of the pending proceeding only and shall not be used against that party as an admission in any other proceeding. 35.08 Notice to produce documents (1) A party to a proceeding may serve on any other party a notice requiring that other party to produce the documents mentioned in the notice on any application in or at the trial of the proceeding. (2) Unless the Court otherwise orders, the party on whom the notice is served shall produce on the application or at the trial such of the documents mentioned in the notice— (a) as are in that party's possession, custody or power; and (b) which that party does not object to produce on the ground of privilege. r. 35.06 -- 223 of 641 -- Order 35 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 193 (3) Where the party on whom the notice is served fails to comply with the notice, the Court may order that the party produce the document or give such directions for the proof of any matter in relation to the document, including the contents of the document and its making, delivery or receipt, as it thinks fit. __________________ r. 35.08 -- 224 of 641 -- Order 36 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 194 ORDER 36 AMENDMENT 36.01 General (1) For the purpose of— (a) determining the real question in controversy between the parties to any proceeding; or (b) correcting any defect or error in any proceeding; or (c) avoiding multiplicity of proceedings— the Court may, at any stage order that any document in the proceeding be amended or that any party have leave to amend any document in the proceeding. (2) In this Order "document" includes originating process, an indorsement of claim on originating process and a pleading. (3) An indorsement of claim or pleading may be amended under paragraph (1) notwithstanding that the effect is to add or substitute a cause of action arising after the commencement of the proceeding. (4) A mistake in the name of a party may be corrected under paragraph (1), whether or not the effect is to substitute another person as a party. (5) Where an order to correct a mistake in the name of a party has the effect of substituting another person as a party, the proceeding shall be taken to have commenced with respect to that person on the day the proceeding commenced. r. 36.01 -- 225 of 641 -- Order 36 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 195 (6) The Court may, notwithstanding the expiry of any relevant limitation period after the day a proceeding is commenced, make an order under paragraph (1) where it is satisfied that any other party to the proceeding would not by reason of the order be prejudiced in the conduct of that party's claim or defence in a way that could not be fairly met by an adjournment, an award of costs or otherwise. (7) For the purpose of paragraph (6) "any other party to the proceeding" includes a person who is substituted as a party by virtue of an order made to correct a mistake in the name of a party. (8) Paragraph (6), with any necessary modification, shall apply to an application under Rule 14.03(2). (9) Paragraph (1) shall not apply to the amendment of a judgment or order. 36.02 Failure to amend within time limited An order giving a party leave to amend a document shall cease to have effect if the party has not amended the document in accordance with the order at the expiration of— (a) the time limited by the order for making the amendment; or (b) if no time was limited, 21 days from the date of the order. 36.03 Amendment of pleading A party may amend any pleading served by that party— (a) once before the close of pleadings; or (b) at any time, by leave of the Court or with the consent of all other parties. r. 36.02 -- 226 of 641 -- Order 36 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 196 36.04 Disallowance of pleading amendment Where a party amends a pleading in accordance with Rule 36.03(a), the Court may, on application by any other party made within 21 days after service of the amended pleading on that party, disallow the amendment or allow it either wholly or in part. 36.05 How pleading amendment made (1) Unless the Court otherwise orders, an amendment to a pleading shall be made by— (a) amending the copy of the pleading filed in the Court or filing a copy of that pleading as amended; and (b) serving a copy of the amended pleading on all parties. (2) A party who files an amended copy of a pleading in accordance with paragraph (1)(a) shall indorse the copy pleading previously filed with a statement to the effect that the amended copy has been substituted. (3) Where either of the requirements of paragraph (1)(a) is complied with, the Prothonotary shall, as the case requires, indorse the copy of the pleading filed in the Court with the date it is amended or the copy of the pleading as amended with the date it is filed. (4) Each amendment to a pleading shall be made in such a way as to distinguish the amendment from the original pleading and from any previous amendment to the original. r. 36.04 -- 227 of 641 -- Order 36 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 197 36.06 Pleading to an amended pleading (1) A party shall plead to an amended pleading within 30 days after it is served on that party. (2) Where a party has pleaded to a pleading which is subsequently amended, the party shall be taken to rely on that party's original pleading in answer to the amended pleading unless the party pleads to it within the time limited for so doing. 36.07 Amendment of judgment or order The Court may at any time correct a clerical mistake in a judgment or order or an error arising in a judgment or order from any accidental slip or omission. __________________ r. 36.06 -- 228 of 641 -- Order 37 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 198 ORDER 37 INSPECTION, DETENTION AND PRESERVATION OF PROPERTY 37.01 Inspection, detention etc. of property (1) In any proceeding the Court may make an order for the inspection, detention, custody or preservation of any property, whether or not in the possession, custody or power of a party. (2) An order under paragraph (1) may authorise any person to— (a) enter any land or do any other thing for the purpose of obtaining access to the property; (b) take samples of the property; (c) make observations (including the photographing) of the property; (d) conduct any experiment on or with the property; (e) observe any process. (3) On an application under paragraph (1), the Court may make an order for the costs and expenses of any person not being a party where— (a) that person attends on the hearing of the application pursuant to a summons served under Rule 37.03(1); or (b) the Court makes an order under paragraph (1) which will affect that person. (4) The Court may make an order under this Rule on condition that the party applying for the order give security for the costs and expenses of any person, whether or not a party, who will be affected by the order. r. 37.01 -- 229 of 641 -- Order 37 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 199 37.02 Inspection from prospective defendant (1) This Rule applies to any property not being a document. (2) In this Rule "applicant" means an applicant for an order under the Rule. (3) Where— (a) there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from an identified person; (b) after making all reasonable enquiries, the applicant has not sufficient information to enable the applicant to decide whether to commence a proceeding in the Court to obtain that relief; and (c) there is reasonable cause to believe that that person has or is likely to have in that person's possession, custody or power any property relating to the question whether the applicant has the right to obtain the relief and that inspection of the property by the applicant would assist the applicant to make the decision— the Court may make an order for the inspection, detention, custody or preservation of the property. (4) An order under paragraph (3) may authorise any person to do any of the things referred to in Rule 37.01(2). (5) On an application under this Rule, the Court may make an order for the costs and expenses of the applicant and the person against whom the order is sought. (6) The Court may make an order under this Rule on condition that the applicant give security for the costs and expenses of the person against whom the order is made. r. 37.02 -- 230 of 641 -- Order 37 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 200 37.03 Procedure (1) An application for an order under Rule 37.01 shall be made by summons served on all parties to the proceeding and served personally on each person who would be affected by the order if made. (2) The Court may make an order under Rule 37.01 notwithstanding that any person not being a party who will be affected by the order has not been served with the summons personally or at all. (3) An application under Rule 37.02 shall be made by originating motion to which the person against whom the order is sought shall be made respondent. (4) An order shall not be made under Rule 37.02 except by a Judge. (5) A summons under paragraph (1) or an originating motion under paragraph (3) shall be supported by an affidavit— (a) stating the facts on which the application is made; and (b) specifying or describing the property in respect of which the order is sought. (6) A copy of the supporting affidavit shall be served on every person on whom the summons or originating motion is served. 37.04 Disposal of perishable property Where, in a proceeding concerning any property (other than land) or in a proceeding in which any question may arise as to any property (other than land), the property is of a perishable nature or is likely to deteriorate or diminish in value if kept, the Court may make an order for the sale or other disposal of the whole or any part of the property. r. 37.03 -- 231 of 641 -- Order 37 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 201 37.05 Payment into Court in discharge of lien (1) Where in any proceeding— (a) the plaintiff claims the recovery of specific property (other than land); and (b) it appears from the pleadings or otherwise that the defendant does not dispute the title of the plaintiff but claims to be entitled to retain the property by virtue of a lien or otherwise as security for any sum of money— the Court may order that the plaintiff be at liberty to pay into court, to abide the event of the proceeding, the amount of money in respect of which the security is claimed and such further amount, if any, for interest and costs as the Court may direct and that, upon the making of such payments, the property claimed be given up to the plaintiff. (2) This Rule, with any necessary modification, shall apply to a counterclaim. 37.06 Interim distribution of property or income Where in a proceeding concerning any property the property will be more than sufficient to answer the claims on the property for which provision ought to be made in the proceeding, the Court— (a) may by order allow the whole or part of the annual income of the property or any part thereof to be paid, during such period as the Court may determine, to all or any of the persons having an interest in the income; or (b) may direct that any part of the property be conveyed, transferred or delivered to any person having an interest in the property. r. 37.05 -- 232 of 641 -- Order 37 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 202 37.07 Jurisdiction of Court not affected The provisions of this Order shall not affect the exercise by the Court of any power to make orders with respect to the inspection, detention, custody or preservation of property which is exercisable apart from those provisions. __________________ r. 37.07 -- 233 of 641 -- Order 38 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 203 ORDER 38 INJUNCTIONS 38.01 When Court may grant The Court may grant an injunction at any stage of a proceeding or, in the circumstances referred to in Rule 4.08, before the commencement of a proceeding. 38.02 Application before trial (1) In an urgent case, the Court may grant an injunction on application made without notice. (2) Where a plaintiff applies for an injunction against a defendant, service of notice of application on that defendant may be made at the time of service of originating process in the proceeding. 38.03 Costs and expenses of non-party (1) This Rule applies where an application for an injunction is made before the trial of a proceeding. (2) The Court may grant an injunction on condition that the party applying for the injunction give security for the costs and expenses of any person who might be affected. (3) The Court may make such order as it thinks fit for the payment, either in the first instance or finally, of the costs and expenses of any person not being a party who might be affected by the grant of an injunction. r. 38.01 -- 234 of 641 -- Order 38 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 204 38.04 Ouster of office (1) Informations in the nature of quo warranto are abolished. (2) Where any person acts in an office in which he or she is not entitled to act and an information in the nature of quo warranto would, but for paragraph (1), lie against him or her, the Court— (a) may grant an injunction restraining him or her from so acting; and (b) may, if the case so requires, declare the office to be vacant. __________________ r. 38.04 -- 235 of 641 -- Order 39 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 205 ORDER 39 RECEIVERS 39.01 Application and definitions (1) This Order applies in relation to the appointment of a receiver by the Court. (2) In this Order— "insurer" means a body corporate authorised under the Insurance Act 1973 of the Commonwealth, to carry on insurance business or an underwriting member of Lloyd's so authorised; "Lloyd's" means the society of that name incorporated by the Imperial Act known as Lloyd's Act 1871; "receiver" means a receiver or receiver and manager. 39.02 Appointment of receiver (1) The Court may appoint a receiver at any stage of a proceeding or, in the circumstances referred to in Rule 4.08, before the commencement of a proceeding. (2) In an urgent case, the Court may appoint a receiver on application made without notice. 39.03 Service of order The party obtaining the appointment of a receiver, or such other party as the Court may direct, shall serve a copy of the order on the receiver. 39.04 Consent of receiver Before a person is appointed receiver the person's written consent to the appointment shall, unless the Court otherwise orders, be filed. r. 39.01 -- 236 of 641 -- Order 39 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 206 39.05 Security by receiver Unless the Court otherwise orders— (a) a receiver shall give security approved by the Court that the receiver will account for what the receiver receives as receiver and deal with it as the Court directs; (b) the security shall be given by guarantee in Form 39A and filed; (c) the guarantee shall be given by a bank or an insurer. Note: "bank" is defined in Rule 1.13(1). 39.06 Remuneration of receiver The Court may provide for the remuneration of a receiver. 39.07 Receiver's accounts (1) Unless the Court otherwise orders, a receiver shall submit accounts in accordance with this Rule. (2) A receiver shall submit accounts to such parties and at such intervals or on such dates as the Court may direct. (3) Any party to whom a receiver is required to submit accounts may, on giving reasonable notice to the receiver, inspect, either personally or by an agent, the documents or things on which the accounts are based. (4) Any party who objects to the accounts may serve notice in writing on the receiver specifying the items to which objection is taken and requiring the receiver within not less than 14 days to lodge the receiver's accounts with the Court, and upon such service the party shall file a copy of the notice. (5) The Court may examine the items to which objection is taken. r. 39.05 -- 237 of 641 -- Order 39 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 207 (6) The Court— (a) shall by order declare what is the result of an examination under paragraph (5); and (b) may make an order for the costs and expenses of any party or the receiver. 39.08 Default by receiver (1) Where a receiver fails to submit any account, provide access to any books or papers or do any other thing which as receiver the receiver ought to do, or fails to attend for the examination of any account of, the receiver's and any party to the proceeding in which the receiver was appointed may be required to attend before the Court to show cause for the failure, and the Court may give such directions as it thinks fit, including, if necessary, directions for the discharge of the receiver and the appointment of another and the payment of costs. (2) Without limiting paragraph (1), where a receiver fails to submit any account or fails to attend for the examination of any account of the receiver's or fails to pay into court on the date fixed by the Court any amount required to be so paid, the Court may disallow any remuneration claimed by the receiver and may, where the receiver has failed to pay any such amount into court, charge the receiver with interest at the rate currently payable in respect of judgment debts in the Court on that amount while in the receiver's possession as receiver. r. 39.08 -- 238 of 641 -- Order 39 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 208 39.09 Directions to receivers (1) A receiver may apply to the Court for directions by summons stating the matters on which directions are required. (2) Unless the Court otherwise orders, the receiver shall serve a copy of the summons and of any affidavit in support on any person who may be affected. __________________ r. 39.09 -- 239 of 641 -- Order 40 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 209 ORDER 40 EVIDENCE GENERALLY 40.01 Definition In this Order, unless the context or subject matter otherwise requires, "a proceeding commenced by writ" includes— (a) a proceeding in respect to which an order has been made under Rule 4.07(1); (b) a trial or inquiry under Order 50; (c) an assessment of damages or value under Order 51. 40.02 Evidence of witness Except where otherwise provided by any Act or these Rules, and subject to any agreement between the parties, evidence shall be given— (a) on an interlocutory or other application in any proceeding, by affidavit; (b) at the trial of a proceeding commenced by writ, orally; (c) at the trial of a proceeding commenced by originating motion, by affidavit. 40.03 Contrary direction as to evidence (1) Notwithstanding Rule 40.02, the Court may order that evidence be given— (a) orally on the hearing of an interlocutory or other application in any proceeding or at the trial of a proceeding commenced by originating motion; (b) by affidavit at the trial of a proceeding commenced by writ. r. 40.01 -- 240 of 641 -- Order 40 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 210 (2) Where the Court makes an order under paragraph (1)(a), it may direct that the party on whose application the order is made give such notice as it thinks fit to the other parties of the oral evidence the party proposes to adduce. (3) Where the Court makes an order under paragraph (1)(b), it may order that the deponent shall attend at the trial to be examined or that the deponent's attendance be dispensed with. 40.04 Examination on affidavit (1) Where an affidavit is filed in any proceeding, the Court may— (a) order that the deponent be examined before the Court; and (b) may order that the deponent attend for that purpose at such time and place as it directs. (2) Unless the Court otherwise orders, a party to a proceeding commenced by originating motion on whose behalf an affidavit is filed in the proceeding shall cause the deponent to attend at the trial of the proceeding to be examined if notice that such attendance is required is served on the party by any other party a reasonable time before the commencement of the trial. (3) Where a deponent in respect of whom an order is made under paragraph (1) or a notice is served under paragraph (2) does not attend for examination the Court may order that the affidavit be not received into evidence. 40.05 Evidence of particular facts (1) The Court may order that evidence of any particular fact shall be given at the trial or at any other stage of a proceeding in such manner as it directs. r. 40.04 -- 241 of 641 -- Order 40 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 211 (2) Without limiting paragraph (1), the Court may order that evidence of any particular fact be given— (a) by statement on oath of information and belief; (b) by the production of documents or entries in books; (c) by the production of copies of documents or entries in books. 40.06 Revocation or variation of order The Court may, at or before the trial of any proceeding, revoke or vary any order made under Rules 40.03 to 40.05. 40.07 Deposition as evidence (1) No deposition taken in a proceeding shall be admissible as evidence at the trial of the proceeding unless— (a) the deposition was taken pursuant to an order made under Rule 41.01(1)(a) or (b); (b) either— (i) the person against whom the evidence is offered consents; or (ii) the deponent is dead or is unfit by reason of his or her bodily or mental condition to attend the trial and testify as a witness; or (iii) the deponent is out of Victoria and it is not reasonably practicable to secure the deponent's attendance; or (iv) the deponent cannot with reasonable diligence be found; and r. 40.06 -- 242 of 641 -- Order 40 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 212 (c) the party who applies to have the deposition received into evidence has given reasonable notice of the application to the other party. (2) A deposition purporting to be signed by the person before whom it was taken shall be receivable in evidence without proof of the signature of that person. (3) Unless the Court otherwise orders— (a) evidence of facts within paragraph (1)(b) may be given by affidavit; and (b) the affidavit may be made from belief as to those facts, if the grounds for the belief are given. 40.08 Proof of Court documents (1) A document purporting to be sealed with the seal of the Court shall be admissible in evidence without further proof. (2) An office copy of a document filed in or issued out of the Court shall be admissible in evidence in any proceeding between all parties to the same extent as the original would be admissible. (3) A document purporting to be sealed with the seal of the Court and to be a copy of a document filed in or issued out of the Court shall be admissible as an office copy of the latter document without further proof. 40.09 Evidence of consent The consent of a person to act in a particular capacity, whether as trustee, receiver or otherwise, or to be added as a plaintiff shall be sufficiently evidenced by a written consent signed by that person, dated and verified by the indorsed certificate of a solicitor. r. 40.08 -- 243 of 641 -- Order 40 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 213 40.10 Defamation A defendant in a proceeding for libel or slander who has not by the defendant's defence alleged the truth of the statement complained of shall not, except by leave of the Court at the trial, give evidence in chief at the trial with respect to— (a) mitigation of damages; (b) the circumstances of publication; or (c) the character of the plaintiff— unless the defendant gives particulars of the evidence to the plaintiff by notice served not less than seven days before the trial. 40.11 Subsequent use of evidence at trial The Court may order that any evidence that has been taken at the trial of a proceeding may be used at any subsequent stage of that proceeding. 40.12 Attendance and production (1) The Court may in any proceeding make an order for— (a) the attendance of any person for the purpose of being examined; (b) the attendance of any person and production by him or her of any document or thing specified or described in the order; or (c) the production by any corporation of any document or thing specified or described in the order. (2) An order under paragraph (1) may be made for attendance before or production to the Court or any officer of the Court, examiner, special referee, arbitrator or other person authorised to take evidence. r. 40.10 -- 244 of 641 -- Order 40 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 214 (3) An order under paragraph (1) shall not operate to require the person against whom the order is made to produce any document which the person could properly object to produce on the ground of privilege. 40.13 View The Court may inspect, or, on a trial with a jury, may authorise the jury to inspect any place, process or thing. __________________ r. 40.13 -- 245 of 641 -- Order 41 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 215 ORDER 41 EVIDENCE BEFORE TRIAL PART 1—EVIDENCE BY DEPOSITION 41.01 Order for witness examination (1) The Court may, for the purpose of any proceeding, make an order for— (a) the examination of any person before a Judge or a Master or such other person as the Court appoints as examiner at any place whether within or out of Victoria; or (b) the sending of a letter of request to the judicial authorities of another country to take, or cause to be taken, the evidence of any person. (2) An order under paragraph (1)(a) shall be in Form 41A or 41B as the case requires. (3) An order under paragraph (1)(b) shall be in Form 41C. 41.02 Documents for examiner The party obtaining an order for examination under Rule 41.01(1)(a) shall furnish the examiner with copies of such of the documents in the proceeding as are necessary to inform the examiner of the question in the proceeding to which the examination is to relate. 41.03 Appointment for examination (1) The examiner shall appoint a place and time for the examination. (2) The time appointed shall be as soon as practicable after the making of the order. r. 41.01 -- 246 of 641 -- Order 41 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 216 (3) The examiner shall give notice of an appointment under this Rule to the party obtaining the order not less than seven days before the time of the appointment, and that party shall forthwith serve notice of the appointment on each other party. 41.04 Conduct of examination (1) The examiner shall permit each party, that party's counsel and that party's solicitor to attend the examination. (2) Unless the Court otherwise orders, the person examined shall be examined, cross-examined and re-examined in like manner as at trial. (3) The examiner may put any question to the person examined— (a) as to the meaning of any answer made by that person; or (b) as to any matter arising in the course of the examination. (4) The examiner may adjourn the examination from time to time and from place to place. 41.05 Examination of additional persons (1) Where the examiner is a Judge or a Master, the examiner may, on the application of a party to the proceeding, take the examination of any person not named or described in the order for examination. (2) Where the examiner is not a Judge or a Master, the examiner may, with the consent in writing of each party to the proceeding, take the examination of any person not named or described in the order for examination and, if the examiner does so, the examiner shall annex to the deposition of that person the consent of each of the parties. r. 41.04 -- 247 of 641 -- Order 41 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 217 41.06 Objection Where a person being examined before an examiner, not being a Judge or a Master, objects to answer any question put to that person or to produce any document or thing, or objection is taken to any such question or production, the following provisions shall apply— (a) where the objection is taken to a question— (i) unless the question is objected to on the ground of privilege, the person being examined shall answer the question; (ii) the question, the ground for the objection and the answer, if any, shall be set out in the deposition; (b) where the objection is taken to the production of a document or thing, the ground for the objection shall be set out in the deposition and, where the objection is to the production of a document, unless production is objected to on the ground of privilege, the document or a copy shall be attached to the deposition; (c) the validity of the objection shall be decided by the Court; (d) if the Court disallows the objection, the Court may order that the costs occasioned by the objection be paid by the person being examined or the party taking the objection or by both of them as the case requires. r. 41.06 -- 248 of 641 -- Order 41 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 218 41.07 Taking of depositions (1) The deposition of a person examined before an examiner shall be— (a) taken down by the examiner; (b) taken down by a shorthand writer or some other person in the presence of the examiner; or (c) recorded by mechanical means in accordance with Part VI of the Evidence Act 1958 in the presence of the examiner. (2) Subject to paragraph (3) and Rule 41.06(a), the deposition need not set out every question and answer if it contains as nearly as may be the statement of the person examined. (3) The examiner may direct that the words of any question and the answer to the question be set out in the deposition. 41.08 Authentication and filing (1) Except where the deposition is taken down by a shorthand writer or is recorded by mechanical means the examiner shall, if any party so requests, ask the person examined to sign that person's deposition. (2) The examiner shall authenticate and sign the deposition. (3) The examiner shall indorse on the deposition a statement signed by him or her of the time occupied in taking the examination and the fees received by the examiner in respect of the examination. (4) The examiner shall send the deposition to the Prothonotary and the Prothonotary shall file it in the proceeding. r. 41.07 -- 249 of 641 -- Order 41 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 219 (5) The examiner shall, unless the Court otherwise orders, send any exhibits to the Prothonotary and the Prothonotary shall deal with them as the Court directs. (6) Paragraphs (3), (4) and (5) shall not apply where the examiner is a Judge or a Master. 41.08.1 Confidentiality of deposition Unless the Court gives leave, a deposition taken or recorded under this Part shall not be disclosed to any person not a party before it has been admitted into evidence. 41.09 Report of examiner (1) The examiner may make to the Court a report upon the examination before him or her or with regard to the absence of any person from the examination. (2) The Court may direct such proceedings to be taken, or make such order, on the report as it thinks fit. 41.10 Default of witness (1) Where a person has been required by subpoena to attend before an examiner not being a Judge or a Master and the person fails or refuses to attend or the person refuses to be sworn for the purposes of the examination or to answer any lawful question or to produce any document or thing, the examiner shall, at the request of any party, give to that party a certificate, signed by the examiner, of the failure or refusal. (2) Upon the filing of the certificate the Court may order that person— (a) to attend before the examiner, or to be sworn, or to answer the question or to produce the document or thing as the case may be; and r. 41.08.1 -- 250 of 641 -- Order 41 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 220 (b) to pay any costs occasioned by the person's failure or refusal. (3) An application for an order under paragraph (2) may be made without notice to the person against whom the order is sought, unless the Court otherwise orders. 41.11 Witness allowance A person required to attend before an examiner shall be entitled to payment for expenses and loss of time as upon attendance at trial. 41.12 Perpetuation of testimony (1) Witnesses shall not be examined to perpetuate testimony unless a proceeding has been commenced for that purpose. (2) Any person who would, in the circumstances alleged by the person to exist, become entitled, upon the happening of any future event, to any property, the right or claim to which cannot be brought to trial by the person before the happening of the future event, may commence a proceeding to perpetuate any testimony which may be material for establishing the right or claim. (3) No proceeding to perpetuate the testimony of witnesses shall be set down for trial. 41.13 Letter of request (1) Where an order is made under Rule 41.01(1)(b) for the sending of a letter of request, the party obtaining the order (in this Order called "the applicant") shall when the letter of request has been signed— (a) lodge with the Prothonotary— (i) the letter of request; r. 41.11 -- 251 of 641 -- Order 41 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 221 (ii) any interrogatories and cross- interrogatories to accompany the letter of request; and (iii) a translation of each of the documents mentioned in sub-paragraphs (i) and (ii) in accordance with Rule 41.14, unless the Senior Master has given a general direction in relation to the country to whose judicial authorities the letter of request is to be sent that no translation need be provided or the official language or one of the official languages of that country is English; (b) file— (i) a copy of each of the documents mentioned in paragraph (a); and (ii) an undertaking in accordance with Rule 41.15; (c) unless the Court otherwise orders, serve a copy of each of the documents mentioned in paragraph (a) on all other parties. (2) A letter of request shall be in Form 41D. 41.14 Translation A translation of a document lodged under Rule 41.13 shall— (a) be a translation into an official language of the country to whose judicial authorities the letter of request is to be sent; and (b) bear a certificate of the translator, in that language, stating that it is an accurate translation of the document. r. 41.14 -- 252 of 641 -- Order 41 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 222 41.15 Undertaking (1) An undertaking filed under Rule 41.13 shall consist of an undertaking by the solicitor for the applicant or, where there is no solicitor, by the applicant, to pay to the Prothonotary an amount equal to the expenses incurred in consequence of the letter of request. (2) The Prothonotary may require the applicant or the applicant's solicitor to give security to the Prothonotary's satisfaction for the expenses referred to in paragraph (1). 41.16 Order for payment of expenses Where a person has given an undertaking in accordance with Rules 41.13 and 41.15, and does not within 14 days after service on that person of an account of expenses incurred in consequence of the letter of request pay to the Prothonotary the amount of the expenses, the Court may, on application by the Prothonotary— (a) order the applicant or the applicant's solicitor (where the undertaking was given by the solicitor) or both of them to pay the amount of the expenses to the Prothonotary; and (b) where— (i) the applicant is plaintiff, stay the proceeding until payment so far as concerns the whole or any part of any claim for relief by the applicant; (ii) the applicant is defendant, make such order as it thinks fit, including an order that until payment the defendant be taken not to have filed an appearance or be not permitted to use in evidence any deposition of a witness obtained pursuant to the letter of request. r. 41.15 -- 253 of 641 -- Order 41 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 223 PART 2—APPLICATIONS FOR TAKING EVIDENCE ABROAD UNDER PART 2 OF THE FOREIGN EVIDENCE ACT 1994 OF THE COMMONWEALTH 41.17 Definition In this Part— "Act" means the Foreign Evidence Act 1994 of the Commonwealth. 41.18 Application This Part applies to any application to the Court under Part 2 of the Act. 41.19 How application made (1) An application under section 7(1) of the Act shall be made by summons. (2) An application under section 10(1) of the Act shall be made by originating motion in Form 5C. (3) An application referred to in paragraph (1) or (2) shall be made to a Master. 41.20 Directions Directions under section 8(1) of the Act may be given by a Master. 41.21 Notice of application On the hearing of an application the Court may order that the person making the application give notice of it to any person having a sufficient interest. __________________ r. 41.17 -- 254 of 641 -- Order 41A Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 224 ORDER 41A APPLICATION UNDER SECTION 42E(1) OF THE EVIDENCE ACT 1958 41A.01 Application of Order This Order applies to an application for a direction under section 42E(1) of the Evidence Act 1958. 41A.02 Form of application Notice of an application shall be in Form 41AA. 41A.03 Filing The applicant shall file the notice at least 14 days before the person the subject of the application is due to appear before or give evidence or make a submission to the Court. 41A.04 Service As soon as practicable after the filing of the notice the applicant shall serve a copy on every other party. 41A.05 Duty of applicant If, whether before or after a direction has been given, an applicant no longer requires the person the subject of the application to appear before or give evidence or make a submission to the Court by audio visual link or audio link, the applicant shall notify the Prothonotary forthwith. 41A.06 Payment of costs Unless the Court otherwise orders, the appropriate amount prescribed by the regulations under section 42H(1) of the Evidence Act 1958 shall be paid in the first instance by the applicant. __________________ r. 41A.01 -- 255 of 641 -- Order 42 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 225 ORDER 42 SUBPOENAS 42.01 Definitions In this Order, unless the context or subject matter otherwise requires— "conduct money" means a sum of money or its equivalent sufficient to meet the reasonable expenses of a person named of complying with a subpoena in relation to the day on which the person is required by the subpoena to attend; "person named" means a person to whom a subpoena or a sealed copy is addressed; "subpoena for production" means an order in writing requiring a person named to attend as directed by the order for the purpose of producing a document or thing for evidence; "subpoena to give evidence" means an order in writing requiring a person named to attend as directed by the order for the purpose of giving evidence. 42.02 Attendance by subpoena (1) In any proceeding the Court may by subpoena order that a person named attend at the trial or any other stage of the proceeding for the purpose of— (a) giving evidence; or (b) producing any document or thing for evidence; or (c) for both purposes. (2) A subpoena shall be in Form 42A, 42B, 42C or 42D, whichever is appropriate. r. 42.01 -- 256 of 641 -- Order 42 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 226 42.03 Filing subpoena (1) An order by subpoena for the attendance of a person in a proceeding shall be taken to be made upon the filing of the subpoena by a party. (2) Upon the filing of a subpoena, the Prothonotary on the request of the party filing it shall seal with the seal of the Court a sufficient number of copies for service and proof of service. (3) A subpoena to give evidence may be addressed to any number of persons. (4) Where a subpoena to give evidence is addressed to a person or to a number of persons "and others", the name of any additional person to whom it is to be addressed may be inserted in a sealed copy without resealing. 42.04 Service Service of a subpoena— (a) where the person named is a natural person, shall be by personal service of a sealed copy on the person named in accordance with Rule 6.03; (b) where the person named is a corporation, shall be by service of a sealed copy on the corporation in accordance with Rule 6.04(a) or, where provision is made by or under any Act for service of a document on a corporation, in accordance with that provision. 42.05 Conduct money A person named shall be excused from complying with a subpoena requiring the person to attend on any day on which that person's attendance is required unless conduct money is given or tendered to the person at the time of service of the subpoena or a reasonable time before that day. r. 42.03 -- 257 of 641 -- Order 42 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 227 42.06 Production before date for attendance (1) Unless the Court otherwise orders, a subpoena for production requiring production before the Court or an officer of the Court shall permit the person named, instead of producing the document or thing before the Court or officer of the Court, to produce it to the Prothonotary by hand or by post, in either case so that the Prothonotary receives it not later than two days before the first day on which production is required by the subpoena to be made. (2) Where a document or thing is produced to the Prothonotary under paragraph (1), the Prothonotary shall— (a) if requested to do so, give a receipt to the person producing the document or thing; and (b) produce the document or thing as the nature of the case requires or the Court directs. (3) This Rule does not apply to so much of a subpoena as requires a person to attend for the purpose of giving evidence. 42.07 Setting aside The Court may set aside a subpoena either wholly or in part. 42.08 Conduct money insufficient to meet expense and loss (1) Where a person named not being a party reasonably incurs in complying with a subpoena expense or loss substantially exceeding the amount of any conduct money given, the Court may order that the party who filed the subpoena pay to that person an amount in respect of that expense or loss. (2) Where an order is made under paragraph (1) the Court shall either fix the amount or direct that the amount be fixed by the Taxing Master. r. 42.06 -- 258 of 641 -- Order 42 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 228 (3) Order 63 shall, with any necessary modification, apply to the fixing of any amount by the Taxing Master under this Rule. 42.08.1 Witnesses' fees and expenses (1) A party shall pay to— (a) a person not a party who attends before the Court, whether in compliance with a subpoena or not, and whom the party calls as a witness; or (b) a person not a party who attends before the Court, in compliance with a subpoena served by the party, and is not called as a witness by any party— the fees and expenses of that person. (2) The Court may order that a party pay to a person referred to in paragraph (1) the fees and expenses to which by virtue of that paragraph the person is entitled. (3) Where an order is made under paragraph (2) the Court shall either— (a) fix the amount of the fees and expenses; or (b) direct that the amount be fixed by the Taxing Master. (4) Order 63 shall, with any necessary modification, apply to the fixing of any amount by the Taxing Master under this Rule. 42.09 Production of wages records (1) This Rule applies to a proceeding for damages in respect of death or bodily injury where it is alleged that the deceased or the plaintiff was employed during a specified period. r. 42.08.1 -- 259 of 641 -- Order 42 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 229 (2) Any party may file a subpoena for production addressed to any employer or former employer of the deceased or of the plaintiff requiring the person named or some person on the named person's behalf to attend before the Prothonotary to produce all documents in the possession, custody or power of the person named relating to the earnings of the deceased or the plaintiff during the specified period. (3) A party who files a subpoena under this Rule shall, forthwith after service, serve a copy on each other party to the proceeding. (4) To comply with paragraph (3) it shall not be necessary that the copy served be sealed or be served personally. (5) Any party may inspect and take copies of any document produced to the Prothonotary in accordance with the subpoena. 42.10 Subpoena before Prothonotary (1) This Rule applies where a party who has a solicitor in the proceeding seeks to require a person not a party to produce any document for evidence before— (a) the hearing of an interlocutory or other application in the proceeding; or (b) the trial of the proceeding. (2) A party may file a subpoena for production requiring the person named to produce to the Prothonotary on or before a day specified by the Prothonotary in the subpoena the document identified in the subpoena. (3) A subpoena under this Rule shall be in Form 42E or Form 42F. r. 42.10 -- 260 of 641 -- Order 42 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 230 (4) A party who files a subpoena under this Rule shall, forthwith after service, serve a copy on each other party to the proceeding, but it shall not be necessary that the copy served be sealed or be served personally. (5) A party who serves a copy of a subpoena under paragraph (4) shall forthwith file an affidavit of service. (6) Subject to paragraph (6.1), the person named may comply with the subpoena by producing the document to the Prothonotary by hand or by post and, if by post, the document shall be sent so that the Prothonotary receives it before the day specified in the subpoena. (6.1) If the document is not in writing, then, provided the original is held by the person named until trial, a copy only need be produced to the Prothonotary and, if a copy is produced, it shall be clearly marked as such and may be used by the Prothonotary for the purposes of inspection and, if necessary, copying. (7) Where a document is produced in compliance with a subpoena under this Rule the Prothonotary shall, if requested to do so, give a receipt to the person producing the document. (8) If— (a) the person named has any objection to producing a document identified in the subpoena or to its being inspected by any one or more of the parties to the proceeding; or r. 42.10 -- 261 of 641 -- Order 42 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 231 (b) a person having a sufficient interest, other than a party, has any objection to the production of a document identified in the subpoena or to its being inspected by any one or more of the parties to the proceeding— that person shall notify the Prothonotary in writing of that objection and state the grounds of that objection before the day specified in the subpoena. (9) Subject to paragraph (9.1), if a party has any objection to the inspection by another party of a document identified in the subpoena, the party having the objection shall notify the Prothonotary in writing of that objection and state the grounds of that objection before the day specified in the subpoena. (9.1) If a party other than the plaintiff seeks by subpoena the production of any hospital or medical file or record concerning the plaintiff or his or her condition, the plaintiff may, before taking objection under paragraph (9), inspect the file or record produced to the Prothonotary and notify the Prothonotary thereafter of any objection the plaintiff has to inspection by any other party, provided that the plaintiff makes that inspection and the grounds of that objection and notifies that objection in writing within seven days after the day specified in the subpoena for production of the file or record to the Prothonotary. (10) Upon receiving notice under paragraph (8), (9) or (9.1), the Prothonotary shall refer the subpoena to a Judge or Master for the hearing and determination of the objection. r. 42.10 -- 262 of 641 -- Order 42 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 232 (11) The Prothonotary shall notify the party who filed the subpoena in writing of the objection and the grounds of that objection and the time and place at which the objection will be heard and that party shall notify the person named and all other parties accordingly. (12) If no objection is notified under paragraph (8), (9) or (9.1) or to the extent that any such objection is disallowed, each party unless a Judge or Master otherwise orders may by appointment with the Prothonotary inspect and take copies of a document produced in compliance with a subpoena under this Rule. (13) The Prothonotary shall not permit any document produced in compliance with a subpoena under this Rule to be removed from his or her custody except upon application in writing signed by the solicitor for a party. (14) A solicitor signing such an application undertakes to the Court by force of this Rule if removing the document from the office of the Prothonotary— (a) to keep the document in his or her personal custody or in the custody of a barrister briefed by the solicitor in the proceeding until the document is returned to the Prothonotary; and (b) to return the document to the Prothonotary at the time appointed by the Prothonotary. (15) The Prothonotary may, in his or her discretion, decline to accede to any application under paragraph (13). (16) Subject to any order of the Court, the Prothonotary— (a) may in his or her discretion return to the person named any document produced by that person in compliance with the subpoena; r. 42.10 -- 263 of 641 -- Order 42 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 233 (b) shall, upon returning the document, inform the person named that the subpoena for production remains in force until the trial or other determination of the proceeding; and (c) may specify a date by which the document is to be produced again to the Prothonotary in compliance with the subpoena. (17) Subject to paragraph (17.1), the Prothonotary shall not return any document under paragraph (16) until after the Prothonotary has given to the party who filed the subpoena 14 days' notice in writing of his or her intention to do so. (17.1) In an urgent case and at the request of— (a) the person named; or (b) in the case of any hospital or medical file or record concerning the plaintiff or his or her condition, the plaintiff— the Prothonotary may return a document under paragraph (16) without first giving notice under paragraph (17), but in such a case, after returning the document, the Prothonotary shall give notice to the party who filed the subpoena that the document has been returned. (18) Subject to paragraphs (16), (17) and (17.1) and any order of the Court, the Prothonotary shall produce or hand to the Associate of the trial Judge for production at the trial of the proceeding each document produced to the Prothonotary in compliance with a subpoena under this Rule. (19) The filing of a subpoena under this Rule to produce a document for evidence shall not preclude the filing of a subpoena otherwise than under this Rule to produce the same document for evidence. r. 42.10 -- 264 of 641 -- Order 42 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 234 42.11 Subpoena for attendance before another court etc. This Order, except Rules 42.06, 42.09 and 42.10, with any necessary modification, shall apply where by or under any Act the Court has authority to compel by subpoena the attendance of a person for the purpose of giving evidence or producing any document or thing for evidence in any court or before any person having by law or by consent of parties authority to hear, receive and examine evidence. __________________ r. 42.11 -- 265 of 641 -- Order 43 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 235 ORDER 43 AFFIDAVITS 43.01 Form of affidavit (1) An affidavit shall be made in the first person. (2) Unless the Court otherwise orders, an affidavit shall state the place of residence of the deponent and the deponent's occupation or, if the deponent has none, his or her description, and that he or she is a party to the proceeding or employed by a party, if such be the case. (3) Notwithstanding paragraph (2), where a deponent makes an affidavit in a professional or other occupational capacity, the affidavit may, instead of stating the deponent's place of residence, state the address of the deponent's place of business, the position he or she holds and the name of his or her firm or employer, if any. (4) An affidavit shall be divided into paragraphs numbered consecutively, each paragraph being as far as possible confined to a distinct portion of the subject. (5) Every affidavit shall be signed by the deponent, except as provided by Rule 43.02(1), and the jurat shall be completed and signed by the person before whom it is sworn. (6) Each page of an affidavit shall be signed by the person before whom it is sworn. (7) The person before whom an affidavit is sworn shall legibly write, type or stamp below his or her signature in the jurat his or her name and address and a statement of the capacity in which the person has authority to take the affidavit. r. 43.01 -- 266 of 641 -- Order 43 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 236 43.02 Affidavit by illiterate or blind person (1) Where it appears to the person before whom an affidavit is sworn that the deponent is illiterate or blind, he or she shall certify in or below the jurat that— (a) the affidavit was read in his or her presence to the deponent; (b) the deponent seemed to him or her perfectly to understand it; and (c) the deponent made his or her signature or mark in the presence of the person before whom the affidavit is sworn. (2) Where an affidavit is made by an illiterate or blind deponent and a certificate in accordance with paragraph (1) does not appear on the affidavit, it may not be used in evidence unless the Court is satisfied that the affidavit was read to the deponent and that the deponent seemed perfectly to understand it. 43.03 Content of affidavit (1) Except where otherwise provided by or under these Rules, an affidavit shall be confined to facts which the deponent is able to state of the deponent's own knowledge. (2) On an interlocutory application an affidavit may contain a statement of fact based on information and belief if the grounds are set out. 43.04 Affidavit by two or more deponents Where an affidavit is made by two or more deponents, the names of the persons making the affidavit shall be inserted in the jurat, except that, if the affidavit is sworn by both or all the deponents at one time before the same person, it shall be sufficient to state that it was sworn by "each of the abovenamed" deponents. r. 43.02 -- 267 of 641 -- Order 43 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 237 43.05 Alterations (1) Notwithstanding any interlineation, erasure or other alteration in the jurat or body, an affidavit— (a) may be filed, unless the Court otherwise orders; but (b) may not be used without the leave of the Court unless the person before whom it is sworn has initialled the alteration. (2) Paragraph (1) shall apply to an account verified by affidavit as if the account were part of the affidavit. 43.06 Annexures and exhibits (1) A document referred to in an affidavit shall not be annexed to the affidavit but may be referred to as an exhibit. (2) An exhibit to an affidavit shall be identified by a separate certificate annexed to it bearing the same heading as the affidavit and signed by the person before whom the affidavit is sworn. (3) The certificate shall be in Form 43A and shall contain in the bottom right hand corner of the page in bold type and in a font size not less than 20 points the distinguishing mark of the exhibit and a brief and specific description of the exhibit. 43.07 Time for swearing Unless the Court otherwise orders, an affidavit may be used in a proceeding notwithstanding that it was sworn before the commencement of the proceeding. 43.08 Irregularity Notwithstanding any irregularity of form an affidavit may with the leave of the Court, be used in evidence. r. 43.05 -- 268 of 641 -- Order 43 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 238 43.09 Filing (1) Unless the Court otherwise orders, an affidavit— (a) which has not been filed; or (b) which has not been served or filed in compliance with an order in respect of its service or filing— shall not be used by the party by or on whose behalf it was made. (2) An affidavit may be filed with the Prothonotary or with the proper officer in court. __________________ r. 43.09 -- 269 of 641 -- Order 44 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 239 ORDER 44 EXPERT EVIDENCE 44.01 Definitions In this Order, unless the context or subject matter otherwise requires— "expert" means a person who has specialised knowledge based on the person's training, study or experience; "opinion" includes more than one opinion; "the code" means the expert witness code of conduct in Form 44A. 44.02 Application (1) This Order applies to a proceeding however commenced. (2) This Order does not apply— (a) to the evidence of a party who would, if called as a witness at the trial, be qualified to give evidence as an expert in respect of any question in the proceeding; or (b) to a person engaged as an expert before 1 November 2003 and Order 44, as in force immediately before 1 August 2003, continues to apply to that person. (3) With respect to the opinion of a medical practitioner, in a proceeding for medical negligence in which the plaintiff claims damages for or in respect of bodily injury, this Order applies to an opinion on the liability of the defendant but does not otherwise apply to a medical report to which Order 33 applies. r. 44.01 -- 270 of 641 -- Order 44 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 240 44.03 Report of expert (1) Unless otherwise ordered, a party who intends at trial to adduce the evidence of a person as an expert shall— (a) as soon as practicable after the engagement of the expert and before the expert makes a report under this Rule, provide the expert with a copy of the code; and (b) not later than 30 days before the day fixed for trial, serve on each other party, a report by the expert in accordance with paragraph (2) and deliver a copy for the use of the Court. (2) The report shall state the opinion of the expert and shall state, specify or provide— (a) the name and address of the expert; (b) an acknowledgement that the expert has read the code and agrees to be bound by it; (c) the qualifications of the expert to prepare the report; (d) the facts, matters and assumptions on which the opinion is based (a letter of instructions may be annexed); (e) (i) the reasons for; (ii) any literature or other materials utilised in support of; (iii) a summary of— the opinion; (f) if applicable, that a particular question, issue or matter falls outside the expert's field of expertise; r. 44.03 -- 271 of 641 -- Order 44 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 241 (g) any examinations, tests or other investigations on which the expert has relied, identifying the person who carried them out and that person's qualifications; (h) a declaration— (i) that the expert has made all the enquiries which the expert believes are desirable and appropriate; and (ii) that no matters of significance which the expert regards as relevant have, to the knowledge of the expert, been withheld from the Court; (i) any qualification of an opinion expressed in the report without which the report is or may be incomplete or inaccurate; (j) whether an opinion expressed in the report is not a concluded opinion because of insufficient research or insufficient data or for any other reason. (3) If the expert provides to a party a supplementary report, including a report indicating that the expert has changed his or her opinion on a material matter expressed in an earlier report— (a) that party shall forthwith serve the supplementary report on all other parties; and (b) in default of such service, the party and any other party having a like interest shall not use the earlier report or the supplementary report at trial without the leave of the Court. (4) Any report provided by the expert pursuant to this Rule— (a) shall be signed by the expert; and r. 44.03 -- 272 of 641 -- Order 44 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 242 (b) shall be accompanied by clear copies of any photographs, plans, calculations, analyses, measurements, survey reports or other extrinsic matter to which the report refers. 44.04 Other party's report as evidence Unless otherwise ordered, a party may put in evidence a report served on that party by another party under this Order. 44.05 No evidence unless disclosed in report Save with the leave of the Court or by consent of the parties affected, a party shall not, except in cross-examination, adduce any evidence from a person as an expert at the trial of a proceeding unless the substance of the evidence is contained within a report or reports which the party has served under this Order. 44.06 Conference between experts (1) The Court may direct expert witnesses— (a) to confer; and (b) to provide the Court with a joint report specifying matters agreed and matters not agreed and the reasons for their not agreeing. (2) The Court may specify the matters on which the experts are to confer. (3) An expert witness may apply to the Court for further directions. (4) The Court may direct the legal representatives of a party— (a) to attend the conference; (b) not to attend the conference; (c) to attend or not to attend at the option of the party whom they represent. r. 44.04 -- 273 of 641 -- Order 44 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 243 (5) Subject to paragraph (1)(b), except as the parties affected agree in writing, no evidence shall be admitted of anything said or done by any person at the conference. (6) An agreement reached during the conference shall not bind a party except in so far as the party agrees in writing. __________________ r. 44.06 -- 274 of 641 -- Order 45 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 244 ORDER 45 ORIGINATING MOTION 45.01 Definitions In this Order— "judgment" includes order; "proceeding" means proceeding commenced by originating motion. 45.02 Evidence by affidavit (1) Except where otherwise provided by any Act or these Rules, and subject to paragraph (2), evidence at the trial of a proceeding shall be given by affidavit. (2) By agreement of the parties, evidence at the trial of the proceeding may be given orally, unless the Court otherwise orders. 45.03 Judgment where no appearance (1) Where a defendant fails to file an appearance within the time limited, the Court may— (a) on application made by the plaintiff without notice to the defendant; and (b) on proof of service of the originating motion and of the failure— give judgment against that defendant for the relief or remedy sought in the originating motion. (2) For the purpose of these Rules, the hearing of the application is the trial of the proceeding. r. 45.01 -- 275 of 641 -- Order 45 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 245 (3) Except for the purpose of proof of service of the originating motion and of the failure of the defendant to appear, the plaintiff shall not, unless the Court otherwise orders, use in evidence on the application any affidavit made by the plaintiff or on the plaintiff's behalf and not served on the defendant with the originating motion. 45.04 Proceedings after appearance (1) Where a defendant has filed an appearance, no judgment shall be given for the relief or remedy sought except on application by the plaintiff in accordance with this Rule. (2) Except as provided in paragraph (3), application shall be made to a Master by summons in Form 45A served on the defendant. (3) In a proceeding commenced by originating motion under Order 53, the plaintiff may apply for judgment on the day specified in the originating motion for application to the Master. (4) On an application under paragraph (2) or (3), the Master may, as appropriate— (a) where he or she has authority to give the judgment sought by the plaintiff, hear and determine the application or refer it to another Master for hearing and determination; (b) by consent of the defendant, give the judgment; (c) refer the application to a Judge for hearing and determination; (d) place the proceeding in the list of cases for trial and give directions for the filing and service of affidavits or otherwise. r. 45.04 -- 276 of 641 -- Order 45 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 246 45.05 Special procedure (1) In this Rule "plaintiff" includes a person who proposes to commence a proceeding by originating motion. (2) The Court may by order— (a) dispense with the requirements of Rules 5.03(1) and 8.02; and (b) authorise the plaintiff to commence a proceeding by originating motion in Form 5C. (3) Without limiting paragraph (2), an order may be made— (a) in an urgent case; (b) to save time and expense for the parties; or (c) where the defendant consents. (4) An order may be made on application by the plaintiff before or after the proceeding is commenced and, except where the originating motion has been served on the defendant, application may be made without notice to the defendant. (5) An application made before the proceeding is commenced shall not constitute a proceeding for the purpose of any requirement of these Rules with respect to originating process. (6) Judgment shall not be given for the plaintiff for the relief or remedy sought in the originating motion or otherwise except on application made to a Master on notice to the defendant in Form 45A. r. 45.05 -- 277 of 641 -- Order 45 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 247 (7) On application to a Master under paragraph (6) the Master may, as appropriate— (a) where the Master has authority to give the judgment sought by the plaintiff, hear and determine the application or refer it to another Master for hearing and determination; (b) by consent of the defendant, give the judgment; (c) refer the application to a Judge for hearing and determination; (d) place the proceeding in the list of cases for trial and give directions for the filing and service of affidavits or otherwise. __________________ r. 45.05 -- 278 of 641 -- Order 46 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 248 ORDER 46 APPLICATIONS 46.01 Application This Order applies to an interlocutory or other application in a proceeding. 46.02 Application by summons (1) An application made on notice to any person shall be by summons, unless the Court otherwise orders. (2) An application by summons is made when the summons is filed in accordance with Rule 46.04. (3) An application not by summons is made when it comes on for hearing. 46.03 Notice of application On the hearing of an application the Court may order that the person making the application give notice of it to any person having a sufficient interest. 46.04 Form and filing of summons (1) A summons shall be in Form 46A. (2) A summons shall be filed— (a) where application is made to a Judge, with the Prothonotary; (b) where application is made to a Master, with the appropriate Master's Associate or the Prothonotary. r. 46.01 -- 279 of 641 -- Order 46 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 249 (3) Upon the filing of a summons, or at any later time on the request of the applicant, a sufficient number of copies of the summons for service and proof of service shall be sealed with the seal of the Court. 46.05 Service (1) The applicant shall serve a sealed copy of a summons and, except where these Rules otherwise provide, a copy of any affidavit in support on every person to whom notice of the application is to be given. (2) Service under paragraph (1) shall be made within a reasonable time before the day for hearing named in the summons, and in no case later than 2.00 p.m. on the previous day or, where the Prothonotary's office was closed on the day before the day for hearing, not later than 2.00 p.m. on the day the office was last open. (3) A plaintiff may serve any summons on a defendant personally before appearance. 46.05.1 Day for hearing (1) A summons which has not been served may, at the request of the party who filed it, be amended on or before the day for hearing named in the summons to name another day. (2) The summons may be amended— (a) if the summons is to be heard by the Court constituted by a Judge, by the Prothonotary or a Judge's Associate; (b) if the summons is to be heard by the Court constituted by a Master, by a Master's Associate or the Prothonotary. r. 46.05 -- 280 of 641 -- Order 46 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 250 (3) A summons shall not be amended under this Rule more than once. (4) This Rule does not limit the power of the Court under Rule 36.01. 46.06 Adjournment (1) The Court may adjourn the hearing of an application on such terms as it thinks fit. (2) The Associate of the Judge or, where an application is to be heard by a Master, the Master's Associate— (a) may by consent adjourn the hearing of an application to a particular date or for a particular time or generally, and reserve the costs of the adjournment; and (b) shall record the adjournment and any reservation of the costs by indorsement on the court file. (3) If the hearing of an application is adjourned under paragraph (2), the Court may thereafter, whether the costs of the adjournment were reserved or not, make an order in relation to the costs of or occasioned by the adjournment as it thinks fit. (4) Rule 63.22 shall apply to costs reserved under paragraph (2) as if the costs were reserved by order of the Court. 46.07 Absence of party to summons (1) Where any person to whom a summons is addressed fails to attend, the Court may hear the application if satisfied that the summons was duly served. (2) Where on an application by summons the applicant fails to attend, the Court may dismiss the application or make such other order as it thinks fit. r. 46.06 -- 281 of 641 -- Order 46 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 251 46.08 Setting aside The Court may set aside or vary an order which affects a person where the application for the order— (a) was made on notice to that person, but the person did not attend the hearing of the application; or (b) was not made on notice to that person. __________________ r. 46.08 -- 282 of 641 -- Order 47 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 252 ORDER 47 PLACE AND MODE OF TRIAL 47.01 Place of trial Unless the Court otherwise orders, the place of trial of a proceeding shall be determined in accordance with Rule 5.08. 47.02 Mode of trial (1) A proceeding commenced by writ and founded on contract (including contract implied by law) or on tort (including a proceeding for damages for breach of statutory duty) shall be tried with a jury if— (a) the plaintiff in the writ or the defendant by notice in writing to the plaintiff and to the Prothonotary within 10 days after the last appearance signifies that the plaintiff or the defendant (as the case requires) desires to have the proceeding so tried; and (b) the proper jury fees are paid. (2) Any other proceeding shall be tried without a jury, unless the Court otherwise orders. (3) Notwithstanding any signification under paragraph (1), the Court may direct trial without a jury if in its opinion the proceeding should not in all the circumstances be tried before a jury. (4) Trial with a jury shall be with a jury of six. r. 47.01 -- 283 of 641 -- Order 47 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 253 47.03 Payment of jury fees (1) If a proceeding is to be tried with a jury, the proper jury fees shall be paid by the plaintiff. (2) If a proceeding is to be tried with a jury because the defendant so signified by notice in writing, the proper jury fees shall be paid by the defendant to the plaintiff within 14 days after a date is fixed for the trial of the proceeding. (3) In case of default under paragraph (1) or (2), the Court may order that the proceeding be tried without a jury. 47.04 Separate trial of question The Court may order that— (a) any question in a proceeding be tried before, at or after the trial of the proceeding, and may state the question or give directions as to the manner in which it shall be stated; (b) different questions be tried at different times or places or by different modes of trial. 47.05 Judgment after determination of preliminary question If the determination of any question in a proceeding and tried separately from the proceeding substantially disposes of the proceeding or renders the trial of the proceeding unnecessary, the Court may dismiss the proceeding or make such other order or give such judgment as it thinks fit. __________________ r. 47.03 -- 284 of 641 -- Order 48 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 254 ORDER 48 FIXING A DATE FOR TRIAL 48.01 Application (1) Subject to this Rule, this Order applies to a proceeding in the Court commenced by writ or originating motion. (2) This Order does not apply to a proceeding in any of the following lists— (a) Admiralty List; (b) Building Cases List; (c) Commercial List; (d) Corporations List; (e) Intellectual Property List; (f) Valuation, Compensation and Planning List. 48.02 Fixing a date The Court may fix a date for the trial of a proceeding— (a) after notice of trial has been filed and served; or (b) subject to the plaintiff's filing and serving notice of trial. 48.03 Notice of trial Notice of trial shall be in Form 48A or, if the Court so orders, Form 48B. r. 48.01 -- 285 of 641 -- Order 48 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 255 48.04 Default by plaintiff (1) If the plaintiff does not within a reasonable time after the commencement of the proceeding file and serve notice of trial or apply to have a date fixed for the trial of the proceeding, the defendant may file and serve notice of trial or may apply to the Court under Rule 24.01 to dismiss the proceeding for want of prosecution. (2) If the Court fixes a date for the trial of the proceeding subject to the plaintiff's filing and serving notice of trial within a certain time and the plaintiff fails to file and serve notice of trial within that time, the defendant within seven days thereafter— (a) may file and serve notice of trial; or (b) may apply to the Court under Rule 24.01 to dismiss the proceeding for want of prosecution. 48.05 Subsequent interlocutory steps (1) After notice of trial— (a) has been filed, the party filing the notice; and (b) has been served, the party so served— shall not seek— (c) amendment to a pleading; (d) particulars or further particulars; (e) answers to interrogatories or further answers; or (f) discovery or inspection of documents or further discovery or inspection— without the leave of the Court. r. 48.04 -- 286 of 641 -- Order 48 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 256 (2) Nothing in paragraph (1) shall— (a) in a proceeding for damages for or arising out of death or bodily injury affect the obligation of the plaintiff to give particulars of the damages claimed or the obligation of the parties under Order 33 with respect to the medical examination of the plaintiff and the service of hospital and medical reports; (b) prevent the service of an offer in writing in accordance with Part 2 of Order 26; or (c) limit the power of the Court at the trial to make an order for amendment or otherwise. 48.06 Vacating date for trial At any time after a date has been fixed for the trial of a proceeding, the Court may vacate the date so fixed and give further directions for the conduct of the proceeding. 48.07 Pre-trial conferences (1) Where a date for the trial of a proceeding has been fixed or the proceeding has otherwise been entered into a list for trial, the Court may direct, or the Prothonotary may give notice, that the parties and their solicitors or counsel attend before a person named in the notice for the purpose of a pre-trial conference. (2) At the time and place designated for the pre-trial conference or at any stage of the pre-trial conference the person conducting the pre-trial conference may, if it appears to that person to be necessary or desirable, refer the proceeding to a Master. r. 48.06 -- 287 of 641 -- Order 48 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 257 (3) Upon a reference under paragraph (2), the Master may make any order or give any direction— (a) to ensure that a party or the party's solicitor or counsel attend before a nominated person for the purpose of the pre-trial conference; (b) to ensure that the proceeding is ready for trial. (4) Except as all the parties who attend the conference agree in writing, no evidence shall be admitted of anything said or done by any person at the conference. (5) The agreement may be made at the conference or later. __________________ r. 48.07 -- 288 of 641 -- Order 49 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 258 ORDER 49 TRIAL 49.01 Order of evidence and addresses (1) The Court may give directions as to the order of evidence and addresses and generally as to the conduct of the trial. (2) Subject to any direction given under paragraph (1)— (a) where the burden of proof on any question lies on the plaintiff, the plaintiff shall begin; (b) where the burden of proof on all the questions lies on the defendant, the defendant shall begin. (3) Subject to any direction given under paragraph (1)— (a) where the only parties are one plaintiff and one defendant, and there is no counterclaim, the order of evidence and addresses shall be as provided by the following paragraphs of this Rule; and (b) in any other case, the order of evidence and addresses shall be as provided by those paragraphs with such modifications as the nature of the case requires. (4) The party who begins may make an address opening the party's case and may then adduce that party's evidence. (5) When, in the course of the case for the party who begins, no document or thing is admitted in evidence on tender by the opposite party, and at the conclusion of that case— r. 49.01 -- 289 of 641 -- Order 49 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 259 (a) the opposite party adduces evidence, the opposite party may first make an opening address and after adducing that party's evidence, the opposite party may make a closing address and thereafter the party who began may make a closing address; (b) the opposite party does not adduce evidence, the party who began may make a closing address and then the opposite party may make an address. (6) When, in the course of the case for the party who begins, any document or thing is admitted in evidence on tender by the opposite party, and at the conclusion of that case— (a) the opposite party adduces evidence, the order of proceedings shall be as provided by paragraph (5)(a); (b) the opposite party does not adduce evidence, the opposite party may make an address and then the party who began may make a closing address. 49.02 Absence of party (1) If, when the trial of a proceeding is called on, any party is absent, the Court may— (a) order that the trial be not had unless the proceeding is again set down for trial, or unless such other steps are taken as the Court directs; (b) proceed with the trial generally or so far as concerns any claim for relief in the proceeding; or (c) adjourn the trial. r. 49.02 -- 290 of 641 -- Order 49 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 260 (2) The Court may set aside or vary any judgment, order or verdict obtained where a party is absent at the trial. (3) An application under paragraph (2) shall be made within 14 days after the trial. 49.03 Adjournment of trial The Court may adjourn a trial on such terms as it thinks fit. 49.04 Death before judgment (1) Where a party to a proceeding dies after the verdict or finding on the questions of fact, the Court may give judgment notwithstanding the death. (2) Paragraph (1) does not affect the power of the Court under Rules 9.08 and 9.09. __________________ r. 49.03 -- 291 of 641 -- Order 50 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 261 ORDER 50 REFERENCES 50.01 Reference to special referee (1) In any proceeding the Court may, subject to any right to a trial with a jury, refer any question to a special referee for the referee to— (a) decide the question; or (b) give the referee's opinion with respect to it. (2) Where an order is made under paragraph (1), the Court— (a) shall state the question referred; (b) shall direct that the special referee make a report in writing to the Court on the question referred to the referee stating, with reasons, the referee's decision or opinion; (c) may direct that the special referee give such further information in the referee's report as it thinks fit. (3) The Court may upon application by a party or by the special referee set aside or vary an order made under this Rule. 50.02 Directions as to procedure Where an order is made under Rule 50.01, the Court may give directions for the conduct of the reference, and in particular may direct that— (a) the special referee have the same authority with respect to discovery of documents and interrogatories as the Court; (b) evidence be taken by the referee and the attendance of witnesses and the production of documents be compelled by subpoena. r. 50.01 -- 292 of 641 -- Order 50 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 262 50.03 Report on reference (1) The special referee may in the referee's report— (a) submit any question arising on the reference for the decision of the Court; or (b) make a statement of facts found by the referee from which the Court may draw such inferences as it thinks fit. (2) On the receipt of the special referee's report, the Court— (a) shall give notice thereof to the parties; and (b) may by order— (i) require the special referee to provide a further report explaining any matter mentioned or not mentioned in the report; (ii) remit the whole or any part of the question originally referred to the special referee for further consideration by that referee or any other special referee; (iii) vary the report. (3) An application by a party for an order under paragraph (2)(b) shall be made on not less than three days' notice to the other party or parties. 50.04 Use of report The Court may as the interests of justice require adopt the report of a special referee or decline to adopt the report in whole or in part, and make such order or give such judgement as it thinks fit. 50.05 Committal Nothing in this Order shall authorise any special referee to make an order of committal. r. 50.03 -- 293 of 641 -- Order 50 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 263 50.06 Remuneration of special referee (1) The Court may determine the remuneration of a special referee, and by what party or parties and in what proportion the remuneration is to be paid either in the first instance or finally. (2) The Court may order any party to give security for the remuneration of a special referee. (3) The Court may order that the proceeding be stayed until an order made under paragraph (2) is complied with. 50.07 Reference to mediator (1) At any stage of a proceeding the Court may, with or without the consent of any party, order that the proceeding or any part of the proceeding be referred to a mediator. (2) Except so far as the Court otherwise orders, an order for reference to mediation shall not operate as a stay of the proceeding. (3) Where a reference is made under paragraph (1) the mediator shall endeavour to assist the parties to reach a settlement of the proceeding or settlement of that part of the proceeding referred to the mediator. (4) The mediator may and shall if so ordered report to the Court whether the mediation is finished. (5) The mediator shall not make any report to the Court other than a report under paragraph (4). (6) Except as all the parties who attend the mediation in writing agree, no evidence shall be admitted of anything said or done by any person at the mediation. (7) The agreement may be made at the mediation or later. r. 50.06 -- 294 of 641 -- Order 50 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 264 (8) The Court may determine the remuneration of the mediator, and by what party or parties and in what proportion the remuneration is to be paid either in the first instance or finally. (9) The Court may order any party to give security for the remuneration of the mediator. (10) This Rule does not apply to the reference of a proceeding or any part of a proceeding to mediation by a Master under Rule 50.07.1. 50.07.1 Mediation by Master (1) Without limiting Rule 50.07(1), at any stage of a proceeding a Master may, with or without the consent of any party— (a) of his or her own motion; or (b) on the reference of a Judge— order that the proceeding or any part of the proceeding be mediated by the Master. (2) If a Master undertakes a mediation, the Master may give any direction with respect to the conduct of the mediation as the Master thinks fit. (3) Except so far as the Master otherwise orders, an order for mediation under this Rule shall not operate as a stay of the proceeding. (4) Except as all the parties who attend the mediation in writing agree, no evidence shall be admitted of anything said or done by any person at the mediation. (5) An agreement referred to in paragraph (4) may be made at the mediation or later. r. 50.07.1 -- 295 of 641 -- Order 50 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 265 50.08 Reference to arbitration (1) At any stage of a proceeding the Court may, with the consent of all parties, order that the proceeding or a question be referred to arbitration. (2) An arbitration ordered under paragraph (1) shall be conducted in accordance with and subject to the provisions of the Commercial Arbitration Act 1984. (3) The Court may subject to the provisions of the Commercial Arbitration Act 1984 by order made under paragraph (1) or at any time— (a) give such directions and make such orders for the conduct of the arbitration as the parties may agree or as they might have agreed had the arbitration been made pursuant to an arbitration agreement; (b) make such orders as to the remuneration of the arbitrator and the giving of security for such remuneration as it thinks fit. __________________ r. 50.08 -- 296 of 641 -- Order 51 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 266 ORDER 51 ASSESSMENT OF DAMAGES OR VALUE 51.01 Mode of assessment Subject to Rule 51.05, damages under any judgment or order for damages to be assessed shall, unless the Court otherwise orders, be assessed by a Master. 51.02 Notice to other party (1) The party against whom the damages are to be assessed may take part in the assessment. (2) The party for whom the damages are to be assessed shall, not less than 10 days before the assessment is due, serve notice of the day, time and place of the assessment on the other party to the assessment. (3) Notice under paragraph (2) may be served at the address for service, but, if there is no address for service, the notice shall be served personally, unless the Court otherwise orders. 51.03 Procedure on assessment The attendance of witnesses and production of documents may be compelled by subpoena in accordance with Order 42, and Order 49 shall, with any necessary modification, apply as if the assessment were a trial of the proceeding. 51.04 Order for damages Where damages are assessed by a Master, the Master shall by order state the amount at which they are assessed. r. 51.01 -- 297 of 641 -- Order 51 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 267 51.05 Default judgment against some defendants Where judgment for damages to be assessed is entered or given in default of appearance or pleading, and the proceeding is continued against other defendants, the damages shall be assessed at the trial, unless the Court otherwise orders. 51.06 Continuing cause of action Where damages are assessed, whether under this Order or otherwise, in respect of any continuing cause of action, they shall be assessed down to the time of assessment. 51.07 Value of goods This Order shall, with any necessary modification, apply to a judgment or order for the value of goods to be assessed, with or without damages to be assessed. __________________ r. 51.05 -- 298 of 641 -- Order 52 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 268 ORDER 52 ACCOUNTS AND INQUIRIES 52.01 Account or inquiry at any stage (1) Except as provided in paragraph (3), the Court may at any stage of a proceeding make an order for— (a) the taking of any account; or (b) the making of any inquiry. (2) Where the Court makes an order for the taking of an account, it may order payment of any amount found to be due on taking the account. (3) The Court shall not order that an account be taken— (a) as against a defendant who has not filed an appearance unless the defendant is in default of appearance; or (b) if it appears that there is some preliminary question to be tried. (4) Every direction for the taking of an account or the making of an inquiry shall be numbered in the judgment or order so that, as far as possible, each distinct account and inquiry is designated by a number. 52.02 Directions for account Where the Court makes an order for the taking of an account, the Court, by the same or later order— (a) may give directions concerning the manner of taking or verifying the account; and r. 52.01 -- 299 of 641 -- Order 52 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 269 (b) without limiting paragraph (a), may direct that in taking the account the relevant books of account shall be evidence of the matters contained in them with liberty to the parties interested to take objections thereto. 52.03 Form and verification of account (1) The items on each side of an account shall be numbered consecutively. (2) Unless the Court otherwise orders, an accounting party shall verify that party's account by affidavit and the account shall be made an exhibit to the affidavit. 52.04 Filing and service of account An accounting party shall, unless the Court otherwise orders— (a) file that party's account and verifying affidavit; and (b) forthwith serve a copy of the account and affidavit on each other party. 52.05 Notice of charge, error in account (1) A party who seeks to charge an accounting party with an amount beyond what the accounting party by the accounting party's account admits receiving shall give to the accounting party notice of the charge, stating, so far as the party is able, the amount which that party seeks to charge, with brief particulars. (2) A party who alleges that any item in the account of an accounting party is erroneous in amount or otherwise shall give to the accounting party notice of the allegation, stating the grounds. r. 52.03 -- 300 of 641 -- Order 52 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 270 52.06 Allowances In taking an account under a judgment or order all just allowances shall be made. 52.07 Delay Where there is delay in the prosecution of any account, inquiry or other matter under a judgment or order, the Court may make orders for staying or expediting the proceeding or for the conduct of the proceeding as it thinks fit. 52.08 Fund distribution before all entitled ascertained Where some of the persons entitled to share in a fund are ascertained, and the ascertainment of the other persons so entitled may be delayed, the Court may by order allow immediate payment of their shares to the persons ascertained without reserving any part of those shares to meet the subsequent costs of ascertaining those other persons. 52.09 Restrictive covenant (1) This Rule applies where on an application under section 84 of the Property Law Act 1958 an order is made under sub-section (3) of that section directing the plaintiff to make inquiries or give notices. (2) Whether the plaintiff has made inquiries and given notices in accordance with the order and what the results of the inquiries are shall be determined by a Master after inquiry. (3) The Master shall by order declare what he or she has determined under paragraph (2) and the application shall not proceed until the order is made. __________________ r. 52.06 -- 301 of 641 -- Order 53 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 271 ORDER 53 SUMMARY PROCEEDING FOR RECOVERY OF LAND 53.01 Application (1) Subject to paragraph (2), this Order applies where the plaintiff claims the recovery of land which is occupied solely by a person or persons who entered into occupation or, having been a licensee or licensees, remained in occupation without the plaintiff's licence or consent or that of any predecessor in title of the plaintiff. (2) This Order does not apply where the land is occupied by a mortgagor or successor in title and the claim is made by the mortgagee or successor in title. 53.02 Originating process (1) The plaintiff may make the claim in a proceeding in accordance with this Order. (2) The proceeding shall be commenced by originating motion. (3) The originating motion shall be in Form 5E. 53.03 Who to be defendant (1) Each person in occupation of the land whose name the plaintiff knows shall be a defendant. (2) If the plaintiff does not know the name of any person in occupation the proceeding may be commenced without naming any person as defendant. r. 53.01 -- 302 of 641 -- Order 53 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 272 53.04 Affidavit in support At the time the proceeding is commenced an affidavit shall be filed stating— (a) the interest of the plaintiff in the land; (b) the circumstances in which the land has been occupied without licence or consent and in which the claim for recovery of the land arises; and (c) that the plaintiff does not know the name of any person occupying the land who is not a defendant. 53.05 Service (1) The originating motion and a copy of the affidavit and of any exhibit referred to therein shall be served— (a) on each defendant, if any; and (b) on any person occupying the land who is not a defendant. (2) Service on a defendant shall be personal. (3) Service on a person occupying the land who is not a defendant shall be effected— (a) by— (i) affixing a copy of the originating motion and a copy of the affidavit to some conspicuous part of the land; and (ii) if practicable, leaving in the letter-box or other receptacle for mail on the land a copy of the originating motion and a copy of the affidavit enclosed in a sealed envelope addressed to "The Occupiers"; or (b) in such other manner as the Court directs. r. 53.04 -- 303 of 641 -- Order 53 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 273 53.06 Occupier made a party The Court may order that a person occupying the land who is not a defendant be made defendant or added as a defendant, as the case requires, and that the person file an appearance. 53.07 Judgment for possession (1) In a proceeding under this Order no judgment for possession shall be given except by a Judge. (2) The judgment shall be in Form 53A. 53.08 Warrant of possession (1) A warrant of possession to enforce a judgment for possession in a proceeding under this Order shall not be issued without the leave of a Judge where three months have elapsed since the judgment took effect. (2) An application for leave under paragraph (1) may be made without notice to any person, unless the Court otherwise orders. (3) A warrant of possession to enforce a judgment for possession in a proceeding under this Order shall be in Form 53B. __________________ r. 53.06 -- 304 of 641 -- Order 54 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 274 ORDER 54 ADMINISTRATION OF ESTATES AND EXECUTION OF TRUSTS 54.01 Definitions In this Order— "administration proceeding" means a proceeding for the administration of an estate or the execution of a trust under the direction of the Court; "estate" means the estate of a deceased person. 54.02 Relief without general administration (1) A proceeding may be brought for any relief which could be granted in an administration proceeding and a claim need not be made for the administration or execution under the direction of the Court of the estate or trust in respect of which the relief is sought. (2) Without limiting paragraph (1), a proceeding may be brought for— (a) the determination of any question which could be determined in an administration proceeding, including any question— (i) arising in the administration of an estate or in the execution of a trust; (ii) as to the composition of any class of persons having a claim against an estate or a beneficial interest in an estate or in property subject to a trust; or r. 54.01 -- 305 of 641 -- Order 54 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 275 (iii) as to the rights or interests of a person claiming to be a creditor of an estate or to be entitled under the will or on the intestacy of a deceased person or to be beneficially entitled under a trust; (b) an order directing an executor, administrator or trustee to— (i) furnish and, if necessary, verify accounts; (ii) pay funds of the estate or trust into court; or (iii) do or abstain from doing any act; (c) an order— (i) approving any sale, purchase, compromise or other transaction by an executor, administrator or trustee; or (ii) directing any act to be done in the administration of an estate or in the execution of a trust which the Court could order to be done if the estate or trust were being administered or executed under the direction of the Court. 54.03 Parties In an administration proceeding or a proceeding within Rule 54.02— (a) all the executors of the will of the deceased or administrators of the estate or trustees of the trust, as the case may be, shall be parties; (b) where the proceeding is brought by executors, administrators or trustees, any of them who does not consent to being joined as a plaintiff shall be made a defendant; r. 54.03 -- 306 of 641 -- Order 54 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 276 (c) notwithstanding anything in Rule 9.03(1), and without limiting the powers of the Court under Order 9, all persons having a beneficial interest in or claim against the estate or having a beneficial interest under the trust, as the case may be, need not be parties, and the plaintiff may make such of those persons parties as the plaintiff thinks fit; (d) where in the taking of an account of debts or liabilities under a judgment or order in the proceeding, a person not a party makes a claim— (i) a party other than the executors or administrators or trustees shall not be entitled to attend before the Court in relation to that claim except by leave of the Court; and (ii) the Court may direct or allow any party to attend before the Court either in addition to or in substitution for the executors, administrators or trustees. 54.04 Notice of proceeding and judgment (1) In an administration proceeding or a proceeding within Rule 54.02, notwithstanding Rule 54.03, the Court may order that any person not a party be given notice of the proceeding and of any judgment in the proceeding. (2) On the application of a person given notice under paragraph (1), the Court may, in accordance with Rule 9.06(b), order that the person be added as a party. r. 54.04 -- 307 of 641 -- Order 54 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 277 54.05 Relief in proceeding by originating motion (1) In an administration proceeding or a proceeding within Rule 54.02 the Court may make any order and grant any relief to which the plaintiff is entitled by reason of any breach of trust, wilful default or other misconduct of the defendant notwithstanding that the proceeding was commenced by originating motion. (2) Paragraph (1) does not limit the power of the Court under Rule 4.07(1). 54.06 Judgment in administration proceeding (1) The Court need not give judgment or make an order for the administration of an estate or the execution of a trust under the direction of the Court unless the judgment or order is necessary for the determination of the questions arising between the parties. (2) Where an administration proceeding is brought by a creditor of the estate or by a person claiming to be entitled under the will or on the intestacy of the deceased or to be beneficially entitled under the trust, the Court may— (a) if it is alleged that no or no sufficient accounts have been furnished by the executors, administrators or trustees, order that the proceeding be stayed for a period specified in the order and that the executors, administrators or trustees shall within that period furnish the plaintiff with proper accounts; r. 54.05 -- 308 of 641 -- Order 54 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 278 (b) if necessary to prevent proceedings by other creditors or by other persons claiming to be entitled as aforesaid, give judgment or make an order for the administration of the estate or the execution of the trust under the direction of the Court and order that no steps be taken under the judgment or order, or under any account or inquiry directed, without the leave of the Court. 54.07 Conduct of sale Where the Court makes an order for the sale of property comprised in an estate, or trust property, the executors or administrators, or the trustees, as the case requires, shall, unless the Court otherwise orders, have the conduct of the sale. __________________ r. 54.07 -- 309 of 641 -- Order 55 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 279 ORDER 55 SALE OF LAND BY ORDER OF COURT 55.01 Definition In this Order "land" includes any interest in or right over land. 55.02 Power to order sale In any proceeding relating to land, where it is necessary or expedient for the purposes of the proceeding, the Court at any stage of the proceeding— (a) may order that the whole or any part of the land be sold; and (b) may further order that any party in receipt of the rents or profits of the land or otherwise in possession of the land deliver possession to such person as the Court directs. 55.03 Notice of application (1) Except for special reason an order for the sale of land under Rule 55.02 shall not be made unless notice in writing has been given to every person interested in the land, whether or not a party. (2) An order for sale— (a) shall state whether notice has been given to every person interested in the land; and (b) if it has not, shall state what special reason exists for making the order notwithstanding. r. 55.01 -- 310 of 641 -- Order 55 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 280 55.04 Manner of sale (1) This Rule applies where the Court makes an order under Rule 55.02 that land be sold. (2) The Court may appoint a party or other person to have the conduct of the sale. (3) The Court may permit the person having the conduct of the sale to sell the land in such manner as that person thinks fit. (4) The Court may direct any party to join in the sale and conveyance or transfer or in any other matter relating to the sale. (5) The Court may give further directions for the purpose of the sale including directions— (a) fixing the manner of sale, whether by contract conditional on approval of the Court, private treaty, public auction or tender or otherwise; (b) fixing a reserve or minimum price; (c) requiring payment of the purchase money into court or to a trustee or other person; (d) for settling the particulars and conditions of sale; (e) for obtaining evidence of value; or (f) fixing the remuneration to be allowed to any auctioneer, estate agent or other person. 55.05 Certifying result of sale (1) Where the Court has directed payment of the purchase money into court or the Court so orders, the result of a sale by order of the Court shall be certified— (a) in the case of a sale by public auction, by the auctioneer who conducted the sale; r. 55.04 -- 311 of 641 -- Order 55 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 281 (b) in any other case, by the person having the conduct of the sale or that person's solicitor— and the Court may require that the certificate be verified by affidavit. (2) The person having the conduct of the sale shall file the certificate and affidavit. (3) Unless the Court otherwise orders, the certificate and affidavit shall be filed within 21 days after the sale. 55.06 Mortgage, exchange or partition This Order shall, with any necessary modification, apply to the mortgage, exchange or partition of any land under an order of the Court. __________________ r. 55.06 -- 312 of 641 -- Order 56 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 282 ORDER 56 JUDICIAL REVIEW 56.01 Judgment or order instead of writ (1) Subject to any Act, the jurisdiction of the Court to grant any relief or remedy in the nature of certiorari, mandamus, prohibition or quo warranto shall be exercised only by way of judgment or order (including interlocutory order) and in a proceeding commenced in accordance with these Rules. (2) The proceeding shall be commenced by originating motion naming as defendant— (a) a person, if any, having an interest to oppose the claim of the plaintiff; and (b) the court, tribunal or person in respect of whose exercise of jurisdiction or failure or refusal to exercise jurisdiction the plaintiff brings the proceeding. (3) A person named as defendant in accordance with paragraph (2)(b) who is sued in the capacity of a judicial or public authority or as the holder of a public office shall be described in the originating motion by the name of that authority or the name of that office. (4) In addition to complying with the requirements of Rule 5.05, the originating motion— (a) shall state the grounds upon which the relief or remedy specified in the originating motion is sought; and r. 56.01 -- 313 of 641 -- Order 56 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 283 (b) where any mistake or omission in any judgment, order or other proceeding in respect of which relief or remedy is sought is a ground, shall specify the mistake or omission. (5) The Court shall not grant any relief or remedy in the nature of certiorari unless— (a) a copy of the warrant, order, conviction, inquisition or record in respect of which the relief is sought, verified by affidavit, is produced; or (b) if a copy is not produced, the non-production is accounted for to the satisfaction of the Court. 56.02 Time for commencement of proceeding (1) A proceeding under this Order shall be commenced within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose. (2) Where the relief or remedy claimed is in respect of any judgment, order, conviction, determination or proceeding, the date when the grounds for the grant of the relief or remedy first arose shall be taken to be the date of the judgment, order, conviction, determination or proceeding. (3) The Court shall not extend the time fixed by paragraph (1) except in special circumstances. __________________ r. 56.02 -- 314 of 641 -- Order 57 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 284 ORDER 57 HABEAS CORPUS 57.01 Definition In this Order "writ" means writ of habeas corpus ad subjiciendum. 57.02 Application for writ (1) A writ shall not issue except by order of the Court. (2) An application for a writ shall be made to a Judge. (3) The person making the application, whether or not that person is the person restrained, shall be plaintiff and the person against whom the issue of the writ is sought shall be defendant in the proceeding. (4) The application shall be made on notice to the defendant. (5) Notice shall be by summons and, subject to Rule 57.05, service of the summons shall be personal. (6) The application shall be supported by an affidavit by the person restrained showing that it is made at his or her instance and stating the nature of the restraint. (7) Where the person restrained is unable for any reason to make the affidavit referred to in paragraph (6), the affidavit may be made by another person and that affidavit shall show that the person restrained is unable to make the affidavit. r. 57.01 -- 315 of 641 -- Order 57 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 285 (8) In an urgent case the Court may dispense with compliance with any of the requirements of paragraphs (4) to (7). (9) Order 46 shall, with any necessary modification, apply to an application under this Rule. 57.03 Order on application (1) On an application under Rule 57.02 the Court may— (a) order that a writ shall issue; or (b) order that the person restrained be released. (2) Where an order is made under paragraph (1)(a), the Court shall give directions as to the Judge before whom, and the date on which, the writ is returnable. (3) A writ shall be in Form 57A. (4) Subject to Rule 57.05, a writ shall be served personally on each defendant. (5) An order that the person restrained be released shall be a sufficient warrant to any governor of a prison, member of the police force or other person for the release of that person from restraint. (6) The Court may make an order under paragraph (1) notwithstanding that the application is not made on notice to the defendant. 57.04 Further application for writ Where an order for a writ is refused, an application for a writ shall not be made again in respect of the same person on the same grounds, whether to the same Judge or to any other Judge, unless fresh evidence is adduced. r. 57.03 -- 316 of 641 -- Order 57 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 286 57.05 Service Where the governor of a prison, a member of the police force or other public official is a defendant, in an urgent case, the summons or writ may be served on that defendant by leaving it for the defendant at the defendant's office or other place of employment with some person apparently employed there and apparently not less than 18 years of age. 57.06 Disobedience (1) A writ may be enforced by one or more of the following means— (a) committal of the defendant; (b) sequestration of the property of the defendant; (c) where the defendant is a corporation, without limiting paragraph (1)(b)— (i) committal of any officer of the corporation; (ii) sequestration of the property of any officer of the corporation. (2) Nothing in paragraph (1) shall affect the power of the Court to punish for contempt. 57.07 Return to the writ (1) The defendant shall make a return to the writ by filing a notice stating the grounds of detention of the person restrained and serving a copy on the plaintiff at or before the time the writ is returnable. (2) By leave of the Court the defendant may amend the notice or file and serve another notice in substitution therefor. r. 57.05 -- 317 of 641 -- Order 57 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 287 57.08 Person detained before Court Where a person detained is brought before the Court pursuant to a writ, the Court shall make such order concerning that person's custody as it thinks fit. 57.09 Other habeas corpus (1) An application for the issue of a writ of habeas corpus other than habeas corpus ad subjiciendum or for an order for the production of a person in confinement to give evidence in any proceeding, civil or criminal, before any court or tribunal shall be made to a Judge by summons. (2) Order 46 shall, with any necessary modification, apply to an application under this Rule. (3) Nothing in paragraph (1) shall limit the power of the Court under any Act to make an order otherwise than on application by summons that an accused person committed to prison be brought before the Court. 57.10 Departing debtor (1) The jurisdiction of the Court to grant relief or remedy in the nature of that formerly given by writ of ne exeat colonia shall be exercised only by way of order and in a proceeding commenced in accordance with these Rules. (2) The proceeding shall be commenced by originating motion in which no person is named as defendant. (3) The Court may make an order granting the relief or remedy if it is just and convenient to do so. __________________ r. 57.08 -- 318 of 641 -- Order 58 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 288 ORDER 58 APPEALS FROM INFERIOR JURISDICTIONS PART 1—APPEALS FROM THE COUNTY COURT 58.01 Procedure (1) Subject to paragraph (3), an appeal from the County Court constituted by a Judge shall be in accordance with Order 64, with any necessary modification, and section 74 of the County Court Act 1958. (2) Subject to this Order and any Act, any other appeal from the County Court, or against a determination of any court or tribunal as if it were a determination of the County Court, shall be heard by a Judge and shall be in accordance with Order 4 of Chapter II, with any necessary modification. (3) An appeal on a question of law under section 52 of the Accident Compensation Act 1985 shall be in accordance with Order 64, with any necessary modification, and that section. PART 2—APPEALS FROM A MASTER OF THE COUNTY COURT 58.02 Appeal from Master by leave (1) Any person affected by any judgment given or order made by a Master of the County Court may, by leave of a Judge, appeal to a Judge. (2) Leave shall be sought in accordance with Rule 58.03. r. 58.01 -- 319 of 641 -- Order 58 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 289 58.03 Application for leave (1) Where the application on which the County Court Master gave the judgment or made the order was not made on notice, application for leave shall be brought on for hearing within five days of the judgment or order and shall be supported by an affidavit complying with paragraph (3). (2) Where the application for the judgment or order was made on notice, application for leave shall be by notice in writing to attend before a Judge on the day and at the time named in the notice, and the notice, together with an affidavit complying with paragraph (3), shall be filed within five days after the judgment or order and served on every person interested not less than two days before the day named. (3) The affidavit shall— (a) set out the facts, matters and circumstances relating to the judgment given or order made, as the case may be, and the grounds upon which it is proposed to appeal; and (b) exhibit a copy of any affidavit filed in the County Court and identify any other evidence to be relied upon on the hearing of the appeal. (4) An order extending the time fixed by paragraph (1) or (2) may be made by a Judge or the County Court Master. r. 58.03 -- 320 of 641 -- Order 58 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 290 58.04 Hearing of appeal (1) If leave to appeal under Rule 58.02 is given, the appeal may be heard forthwith or otherwise as the Judge who gives leave directs. (2) An appeal under Rule 58.02 shall be by a re-hearing de novo of the application to the County Court Master but each party may, subject to any proper objections to admissibility— (a) rely upon any affidavit used before the County Court Master and upon any evidence given orally before him or her; (b) by special leave of the Judge hearing the appeal, rely upon an affidavit or oral evidence not used or given before the County Court Master. 58.05 Stay Except so far as a Judge or the County Court Master otherwise orders, an appeal under Rule 58.02 shall not operate as a stay of execution under the judgment or order. PART 3—APPEALS ON A QUESTION OF LAW 58.06 Application of Part This Part applies to any appeal and to any application for leave to appeal— (a) under section 92 or 109 of the Magistrates' Court Act 1989; (b) under section 117 or 200 of the Children and Young Persons Act 1989; (c) to which by another Act section 92 or 109 of the Magistrates' Court Act 1989 applies. r. 58.04 -- 321 of 641 -- Order 58 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 291 58.07 Commencement of appeal An appeal under this Part is instituted by filing a notice of appeal in the Trial Division. 58.08 Notice of appeal (1) A notice of appeal under this Part shall— (a) be in writing signed by the appellant or the appellant's solicitor; (b) set out or state— (i) the order which is the subject of appeal; (ii) whether the appeal is from the whole or part only of the order and, if so, what part; (iii) the question of law upon which the appeal is brought; (iv) concisely the grounds of appeal; (v) the order sought in place of that from which the appeal is brought; and (c) at its end, name all the persons on whom it is proposed to serve the notice of appeal. (2) As soon as practicable after filing the notice of appeal, the appellant shall— (a) deliver a copy to the registrar or other proper officer of the court that made the order the subject of the appeal; (b) unless the Court otherwise orders, serve a copy of the notice on all persons directly affected by the appeal. (3) The Court may give leave to amend the grounds of appeal or make any other order to ensure the proper determination of the appeal. r. 58.07 -- 322 of 641 -- Order 58 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 292 58.09 Appellant to file affidavit (1) Within seven days after filing notice of appeal, the appellant shall file an affidavit stating the acts, facts, matters and circumstances relating to— (a) the order under appeal; (b) the grounds set out in the notice of appeal; and (c) if leave to appeal is needed, why leave to appeal should be given. (2) There shall be included as exhibits to the affidavit— (a) a copy of the order under appeal; and (b) a copy of any reasons given for the order— or their absence as exhibits shall be accounted for in the affidavit. 58.10 Directions (1) Within seven days after filing notice of appeal, the appellant shall apply on summons to a Master for directions and, if necessary, for leave to appeal. (2) The application is taken to be made when the summons is filed. (3) Not less than 14 days before the day for hearing named in the summons, the appellant shall serve on the respondent to the appeal the summons together with a copy of the affidavit filed under Rule 58.09 and any exhibit. (4) Not less than five days before the day for hearing named in the summons the respondent shall file and serve a copy of any affidavit in answer and shall serve a copy of any exhibit. r. 58.09 -- 323 of 641 -- Order 58 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 293 (5) If at any time the Master is satisfied that the hearing of the summons should be expedited, the Master may of his or her own motion or on application bring the summons on for hearing. (6) Subject to paragraphs (7) and (8), the Master shall give directions with respect to the appeal. (7) If leave to appeal is required— (a) the Master shall determine whether leave to appeal is given; and (b) if leave to appeal is refused, the Master shall dismiss the appeal. (8) The Master may dismiss the appeal if satisfied that— (a) the notice of appeal does not identify sufficiently or at all a question of law on which the appeal may be brought; (b) the appellant does not have an arguable case on appeal or to refuse leave would impose no substantial injustice; or (c) the appeal is frivolous, vexatious or otherwise an abuse of the process of the Court. 58.11 Leave to appeal (1) An appeal instituted more than 30 days after the day on which the order under appeal was made is to be taken to be an application for leave to appeal. (2) An application for leave to appeal shall be heard and determined by the Master under Rule 58.10. r. 58.11 -- 324 of 641 -- Order 58 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 294 58.12 Stay The Court may grant any stay necessary for the proper hearing and determination of the application or the appeal. 58.13 Expedition (1) Where it is satisfied that the delay caused by proceeding in accordance with this Part would or might entail injustice, the Court may make an order under this Part without notice to any party upon such terms as to costs or otherwise and subject to such undertaking, if any, as it thinks fit. (2) The Court may set aside any order made under paragraph (1) on the application of any person affected. (3) Where it is satisfied that the justice of the case requires, the Court may order that, subject to any order otherwise, an application for leave to appeal be heard and determined by the Court which, if leave is granted, is to hear and determine the appeal and may give directions accordingly. 58.14 Report The Court may call for a report from the Court that made the order from which the appeal is brought and, if the contents of that report have first been made available to the parties to the appeal, the Court may act upon the report. PART 4—APPEALS UNDER SECTION 80B OF OR CLAUSE 13 OR 18 OF SCHEDULE 2 TO THE CHILDREN AND YOUNG PERSONS ACT 1989 58.17 Application of Part This Part applies to an appeal to the Court under section 80B of, or clause 13 or 18 of Schedule 2 to, the Children and Young Persons Act 1989. r. 58.12 -- 325 of 641 -- Order 58 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 295 58.18 Institution of appeal (1) An appeal to which this Part applies shall be instituted by filing in the Court a notice of appeal in Form 58A. (2) As soon as practicable after filing the notice of appeal, the appellant shall serve a copy on— (a) the registrar or other proper officer of the court from which the appeal is brought; and (b) unless a Judge otherwise orders, all parties to the proceeding in which the order appealed from was made who are directly affected by the appeal. (3) A Judge may give leave to amend the grounds of appeal or make any other order to ensure the proper determination of the appeal. 58.19 Affidavit in support (1) As soon as practicable after filing the notice of appeal the appellant shall, unless a Judge otherwise orders, file in the Court and serve on each respondent an affidavit in support of the appeal. (2) The affidavit shall refer so far as necessary to the proceeding in which the order appealed from was made and any reasons given for the order and shall exhibit a copy of the order. 58.20 Hearing (1) The appeal shall be heard and determined by a Judge. (2) The appeal shall be heard forthwith or otherwise at such time and in such manner as a Judge directs. r. 58.18 -- 326 of 641 -- Order 58 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 296 58.21 Stay Except so far as a Judge otherwise orders, an appeal under this Part shall not operate as a stay of the order appealed from. PART 5—APPEALS UNDER SECTIONS 116 AND 197 OF THE CHILDREN AND YOUNG PERSONS ACT 1989 58.22 Application This Part applies to an appeal to the Trial Division under section 116 or 197 of the Children and Young Persons Act 1989 from the Children's Court constituted by the President of that Court. 58.23 Definitions In this Part— "appeal" means an appeal to which this Part applies; "appellant" has a corresponding meaning. 58.24 Notice of appeal and undertaking to prosecute A notice of appeal and undertaking to prosecute an appeal shall be in Form 58B. 58.25 Solicitor to notify that he or she acts (1) If a solicitor is engaged to act on behalf of an appellant or a respondent to an appeal, the solicitor shall without delay notify the Prothonotary in writing that he or she so acts and furnish an address for service. (2) If a solicitor ceases to act on behalf of an appellant or a respondent or the address for service is changed, the solicitor shall without delay so notify the Prothonotary in writing. r. 58.21 -- 327 of 641 -- Order 58 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 297 58.26 Prothonotary to fix hearing (1) The Prothonotary shall— (a) fix the date and place for hearing of the appeal; and (b) notify in writing each party and each solicitor who has given notice under Rule 58.25 of the date and place of hearing a reasonable time before the hearing. (2) Notification in writing under paragraph (1)(b) may be— (a) by pre-paid ordinary mail; or (b) where a solicitor for a party has facilities for the reception of documents in a document exchange, by delivering the notification into those facilities. 58.27 Abandonment of appeal (1) A notice of abandonment of an appeal against a sentencing order which imposed a period of detention shall be in Form 58C. (2) A notice of abandonment of any other appeal shall be in Form 58D. (3) When a notice of abandonment of appeal is filed, the Prothonotary shall make the order striking out the appeal. 58.28 Order striking out appeal (1) An order under section 86 of the Magistrates' Court Act 1989 striking out an appeal shall be in Form 58E. (2) The Prothonotary shall cause a copy of the order to be forwarded to the registrar of the Children's Court at the venue of the court from which the appeal was brought. r. 58.26 -- 328 of 641 -- Order 58 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 298 58.29 Recording of decision on appeal under section 197 (1) When an appeal under section 197 of the Children and Young Persons Act 1989 is determined, the Associate to the Judge who heard the appeal shall record the sentence or particulars of the decision, in quadruplicate, in Form 58F, which record shall constitute the final record of the order of the Court on the appeal. (2) If a number of appeals is heard together, it is not necessary to record the sentence or particulars required by paragraph (1) on separate forms for each appeal but it is necessary for the sentence or such particulars in respect of each charge to be recorded in full. (3) The Associate to the Judge shall deliver— (a) three copies of the record of the order of the Court to the Prothonotary who shall— (i) file one copy; (ii) send one copy to the registrar of the Children's Court at the venue of the court from which the appeal was brought; and (iii) if the appellant is required to serve a period of detention, deliver one copy to the person responsible for keeping the appellant; and (b) if the appellant is required to serve a period of detention, one copy of the record of the order of the Court to the prison officer responsible for conveying the appellant to the place of detention. (4) The record shall be sufficient to authorise the keeping of the appellant for the period and in the manner set out in the record. r. 58.29 -- 329 of 641 -- Order 58 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 299 58.30 Application to set aside order striking out appeal for failure to appear An application to set aside an order striking out an appeal because of the failure of the appellant to appear shall be in Form 58G. 58.31 Application for rehearing of appeal under section 116 (1) An application for the rehearing of an appeal under section 116 of the Children and Young Persons Act 1989 which has been heard and determined in the appellant's absence shall be in Form 58H. (2) An application for leave to apply out of time for the rehearing of such an appeal shall be in Form 58J. PART 6—APPEALS UNDER SECTIONS 20 AND 21 OF THE CRIMES (FAMILY VIOLENCE) ACT 1987 58.32 Appeals to the Trial Division from the Children's Court On an appeal to the Trial Division under section 20 or 21 of the Crimes (Family Violence) Act 1987 from the Children's Court constituted by the President of that Court, Part 5 of this Order shall apply with any necessary modification. __________________ r. 58.30 -- 330 of 641 -- Order 59 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 300 ORDER 59 JUDGMENTS AND ORDERS 59.01 General relief The Court may, at any stage of a proceeding, on the application of any party, give such judgment or make such order as the case requires notwithstanding that the judgment or order had not been sought in the originating process or other document of the party in the proceeding. 59.02 Date of effect (1) A judgment given or order made by the Court shall bear the date of and shall take effect on and from the day it is given or made, unless the Court otherwise orders. (2) Any other judgment shall bear the date of and shall take effect on and from the day it is authenticated in accordance with Order 60. 59.03 Time for compliance (1) Subject to paragraph (3), a judgment or order which requires a person to do an act shall provide, unless the Court otherwise orders, that the act be done within 14 days after service of a copy of the judgment or order on the person. (2) Where a judgment or order requires a person to do an act within a fixed time, the Court may, by order, fix another time. (3) Paragraph (1) does not apply to— (a) so much of a judgment as requires a person to pay money otherwise than into court; (b) a judgment for possession of land; or (c) a judgment for the delivery of goods. r. 59.01 -- 331 of 641 -- Order 59 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 301 (4) Where a judgment or order requires a person to do an act but does not fix a time within which the person is required to do the act, the Court may, by order, fix a time. (5) Where the Court fixes a time under paragraph (4), the Court may, by subsequent order, fix another time. 59.04 Statement of reasons for judgment Where the Court gives any judgment or makes any order the reasons for which have been reduced to writing, it shall be sufficient to state the result orally without reasons, but the written reasons shall then and there be published by delivery to the Associate. 59.05 Notice of judgment to non-party (1) This Rule applies where the Court gives judgment or makes an order for— (a) the administration of the estate of a deceased person; (b) the execution of a trust; or (c) the sale of property. (2) Where the judgment or order— (a) affects the rights of any person not a party; or (b) directs the taking of an account or the making of an inquiry— the Court may by the judgment or order, or by subsequent order, direct that notice of the judgment be served on any person interested. (3) The Court may direct that notice under paragraph (2) be served personally or in some other manner, and, where it appears that service is impracticable, may dispense with service. r. 59.04 -- 332 of 641 -- Order 59 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 302 (4) A notice of judgment served under paragraph (2) shall be endorsed in accordance with Form 59A. (5) Where under this Rule notice of a judgment is served on a person, or the Court dispenses with service of notice of judgment on a person— (a) subject to paragraph (6), that person shall be bound by the judgment to the same extent as if the person were a party at the time the judgment or order was given or made, except where the judgment or order has been obtained by fraud or non-disclosure of material facts; (b) that person may, after filing an appearance, attend on the taking of the account or the making of the inquiry under the judgment or order. (6) The Court may set aside or vary the judgment or order on the application of any person referred to in paragraph (2). (7) An application under paragraph (6) shall be made by summons, which shall be filed— (a) if notice of the judgment or order has been served on the applicant, within 28 days after service; (b) if the Court has dispensed with service of notice, within 28 days after the day the order dispensing with service was made. 59.06 Consent judgment or order by filing (1) Unless the Court constituted by a Judge otherwise orders, if all the parties to a proceeding are agreed upon the terms in which a judgment should be given, or an order made, in the proceeding, a judgment or order in those terms may be sought in accordance with this Rule. r. 59.06 -- 333 of 641 -- Order 59 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 303 (2) A party may file with the Prothonotary a draft of the judgment or order sought in the terms agreed and expressed as being by consent, and signed by the solicitor on the record for each party. (3) The Prothonotary shall, if satisfied that the judgment or order sought is one proper to be made under this Rule, draw up a form of the judgment or order in accordance with the draft and seal the form with the seal of the Court. (4) A judgment or order in the terms of the form drawn up by the Prothonotary is authenticated when the Prothonotary seals the form with the seal of the Court. (5) A judgment or order so authenticated shall be taken to be a judgment given or order made by the Court on the day the draft of the judgment or order was filed with the Prothonotary. (6) The judgment or order— (a) shall state that it is given or made under this Rule; and (b) shall show as the date it was given or made the day on which the draft was filed with the Prothonotary. (7) This Rule applies only— (a) where a claim is made for the recovery of a debt, damages or any property, and judgment is sought for any of the following— (i) the payment of a debt, where the amount of the debt is agreed; (ii) the payment of damages, or the value of goods, where the amount of the damages or the value is agreed; (iii) the payment of damages to be assessed, or the value of goods to be assessed; r. 59.06 -- 334 of 641 -- Order 59 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 304 (iv) the possession of land; (v) the delivery of goods; (vi) the delivery of goods or their value to be assessed; (b) to an order sought for any of the following— (i) the dismissal of a proceeding; (ii) the dismissal of an application in a proceeding; (iii) that a party be at liberty to discontinue or withdraw any part of a proceeding, or to discontinue a counterclaim or withdraw any part of it; (iv) the stay of a proceeding, either conditionally or upon terms; (v) to set aside or vary any judgment or order to which Rule 21.07, 24.06 or 46.08 applies; (vi) that a person cease to be a party; (vii) for or with respect to costs including the giving of security for costs; (viii) to stay execution of a judgment or order, either conditionally or upon terms. (8) This Rule shall not apply to any judgment or order in a proceeding— (a) in which any party has no solicitor in the proceeding or is a person under disability; (b) to which any Chapter of the Rules of the Supreme Court other than Chapter I applies. r. 59.06 -- 335 of 641 -- Order 59 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 305 59.07 Consent to judgment or order by parties not in attendance (1) Where parties to a proceeding are agreed upon the terms in which a judgment should be given, or an order made, in the proceeding, the Court may, if satisfied that the parties who are to be bound consent, give judgment or make an order in those terms without requiring the attendance of the parties. (2) As evidence of the consent of a party not in attendance, the Court may accept a document or facsimile copy of a document signed by the solicitor on the record for that party. (3) Any document accepted under paragraph (2) shall be placed on the Court file. (4) Notwithstanding paragraph (1), the Court may require a party to attend upon the giving of a judgment or the making of an order in the proceeding. __________________ r. 59.07 -- 336 of 641 -- Order 60 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 306 ORDER 60 AUTHENTICATION AND FILING OF JUDGMENTS AND ORDERS 60.01 When authentication required (1) Unless the Court otherwise orders, a judgment or an order shall not be enforced under any of these Rules and an appeal which has been instituted from a judgment or an order shall not be heard until the judgment or order has been authenticated in accordance with this Order and filed. (2) Except where the Court otherwise orders— (a) no judgment shall be entered or other step taken; and (b) no judgment shall be given— pursuant to an order or in consequence of the failure of a party to comply with an order unless beforehand the order is authenticated in accordance with this Order and filed. 60.02 Mode of authentication (1) A judgment, other than a judgment under Rule 59.06, is authenticated when a form of the judgment, drawn up and settled in accordance with this Order, is sealed by the Prothonotary with the seal of the Court. (2) An order, other than an order under Rule 59.06, is authenticated when a form of the Order, drawn up and settled in accordance with this Order— (a) is sealed by the Prothonotary with the seal of the Court; or (b) in the case of an order to which Rule 60.04 applies, is signed by a Judge or a Master. r. 60.01 -- 337 of 641 -- Order 60 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 307 (3) A judgment or an order under Rule 59.06 is authenticated as provided in that Rule. 60.03 Drawing up of judgment or order (1) The Prothonotary shall, upon the request of a party, draw up and settle the form of a judgment given or an order. (1.1) The form of a judgment or order under Rule 59.06 shall be drawn up by the Prothonotary as provided in that Rule. (2) The form of any other judgment shall be drawn up by the party requiring it to be authenticated and lodged by that party with the Prothonotary to be settled. (3) Notwithstanding paragraph (1), a party may, by leave of the Judge or Master who gave the judgment or made the order, lodge with the Prothonotary a draft of the judgment or order in a particular form, and where a draft is so lodged the Prothonotary shall settle the judgment or order in accordance with that form. 60.04 Order signed by Judge or Master (1) Notwithstanding anything in this Order, where a Judge or Master makes an order, he or she— (a) may sign the order; or (b) may direct that the order be drawn up by a party and signed by the Judge or Master. (2) Where that Judge or Master is unable for sufficient cause to sign the order, it may be signed by another Judge or Master, as the case requires. r. 60.03 -- 338 of 641 -- Order 60 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 308 60.05 Recitals in judgments and orders (1) A judgment or order shall not include by way of recital any matter not provided for in paragraph (2). (2) A judgment or order shall by way of recital specify— (a) the originating or other process upon which the judgment or order was obtained; (b) whether any party who was entitled to attend on the hearing of the application to which the judgment or order relates did or did not attend, and, if that party did, whether in person or by counsel or solicitor; (c) any finding by the Court of fact essential to ground jurisdiction; (d) the terms of any undertaking given by a party; (e) such other matters as the Court may direct. (3) Where the Court so orders or any party so requires, a judgment or order shall by way of annexure identify the evidence before the Court. 60.06 Drawing up and settling (1) Where the Prothonotary is requested to draw up and settle the form of a judgment or order, the Prothonotary may appoint a time and place for the attendance of any party to settle the draft. (2) Where a draft form of a judgment or order is lodged by a party with the Prothonotary to be settled, the Prothonotary may— (a) settle the draft without an appointment for the attendance of any party; or (b) appoint a time and place for the attendance of any party to settle the draft. r. 60.05 -- 339 of 641 -- Order 60 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 309 (3) Where the Prothonotary makes an appointment to settle the draft of a judgment or order, the Prothonotary shall give notice of the appointment to the party requesting that the form of the judgment or order be drawn up and settled or to the party lodging a draft form of the judgment or order to be settled, as the case may be. (4) That party shall serve notice of the appointment on the other party, unless the Prothonotary otherwise directs. (5) The notice shall be served not less than two days before the appointed day. (6) On the appointment to settle the Prothonotary may proceed in the absence of any party. (7) The Prothonotary shall, on or after the appointment, settle the draft. 60.07 Copy of judgment or order The Prothonotary, on the request of a party, shall seal a reasonable number of copies of a judgment or order. 60.08 Form of judgment or order The forms of judgments and orders in Forms 60A to 60L shall, where appropriate, be used. 60.09 Interpretation In this Order, "party" includes a person having a sufficient interest. __________________ r. 60.07 -- 340 of 641 -- Order 61 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 310 ORDER 61 JUDGMENT DEBT INSTALMENT ORDERS 61.01 Definitions (1) In this Order, unless the context or subject matter otherwise requires— "judgment" includes a judgment or order for the payment of money into court; "the Act" means the Judgment Debt Recovery Act 1984; references to an order that a judgment debt be paid by instalments include references to an order that any part of the judgment debt be so paid. (2) A Master shall be the proper officer of the Court for the purpose of the Act. 61.02 Application under section 6 or 8 (1) An application to a Master under section 6 of the Act for— (a) an order that a judgment debt be paid by instalments shall be in Form 61A; (b) an order in substitution for an order made under section 5 of the Act shall be in Form 61B. (2) An application to the Court under section 8 of the Act for the variation or cancellation of an order that a judgment debt be paid by instalments shall be in Form 61C. (3) Where an application is made under section 6 or section 8 of the Act by a judgment debtor, the judgment debtor shall— (a) where the judgment debtor is— r. 61.01 -- 341 of 641 -- Order 61 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 311 (i) a natural person, file an affidavit of his or her financial situation which gives the information required by Form 72C; (ii) a corporation, file an affidavit of its financial situation; and (b) serve a copy of the affidavit on the judgment creditor at the time of service of the application. (3.1) Where an application is made under section 6 of the Act by a judgment creditor, the judgment creditor shall— (a) file an affidavit stating the facts on which the application is based; and (b) serve a copy of the affidavit on the judgment debtor. (4) A copy of the affidavit in support of an application made under section 8 of the Act by a judgment creditor shall be served on the judgment debtor at the time of service of a copy of the application. (5) An order under section 6 or section 8 of the Act shall be in Form 61D. (6) A notice by a Master under section 6(4) of the Act shall be in Form 61E. (7) A notice of objection by a judgment creditor or judgment debtor under section 6(5) of the Act— (a) shall be in Form 61F; and (b) shall be filed within 14 days after the judgment creditor or judgment debtor receives notice from a Master under section 6(4) of the Act. (8) Where a notice of objection under section 6(5) of the Act is filed, a Master shall set the matter down for hearing before a Judge. r. 61.02 -- 342 of 641 -- Order 61 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 312 (9) A notice by a Master under section 6(6) of the Act shall be in Form 61G. (10) A notice by the Court under section 6(7) of the Act shall be in Form 61H. 61.03 Instalment agreement under section 7 (1) An instalment agreement entered into between a judgment creditor and a judgment debtor under section 7(1) of the Act— (a) shall be in Form 61J; and (b) shall be filed with the Associate to a Master. (2) Each party shall execute the agreement in the presence of a witness who shall by his or her signature attest that execution. (3) An affidavit or affidavits verifying compliance with paragraph (2) shall be filed with the Associate to a Master. (4) An order under section 7(3) of the Act for the payment of a judgment debt by instalments shall be in Form 61K. (5) A notice by a Master under section 7(4) of the Act shall be in Form 61L. 61.04 Summons for oral examination of judgment debtor (1) A summons under section 14(1) or 17(1) of the Act requiring a judgment debtor to attend before the Court to be orally examined shall be in Form 61M. (2) Where the judgment debtor is a corporation the summons may require an officer of the corporation to attend to be orally examined. (3) An application to a Master for the issue of a summons under section 17(1) of the Act shall be supported by affidavit evidence of— (a) the making of the instalment order; and r. 61.03 -- 343 of 641 -- Order 61 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 313 (b) default in payment of any instalment under that order. (4) A warrant under section 14(2) or section 17(2) of the Act for the apprehension of a judgment debtor shall be in Form 61N. (5) An application to the Court or a Master for the issue of a warrant for the apprehension of a judgment debtor shall be supported by affidavit evidence of— (a) the making of an application for the making or variation or cancellation of an instalment order; (b) the service of notice of any application of the kind referred to in paragraph (a), where service is necessary; (c) the service of the summons requiring the judgment debtor to attend before the Court and, where necessary, of the judgment or a copy; (d) the failure of the judgment debtor to attend as required by that summons; and (e) the usual or last known place of residence or business of the judgment debtor or, where the judgment debtor is a corporation, its last known registered office. (6) A notice under section 14(6) or 17(5) of the Act shall be in Form 61P. r. 61.04 -- 344 of 641 -- Order 61 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 314 61.05 Notice of instalment order confirmed, varied or cancelled A notice under section 18(2) of the Act shall be in Form 61Q. 61.06 Order for imprisonment An order for imprisonment made under section 19(1) of the Act shall specify the instalments in the payment of which default has been made. 61.07 Certificate of payment (1) An application to a Master for a certificate of payment under section 19(3) of the Act shall be supported by affidavit evidence of— (a) the making of an order for imprisonment; and (b) the payment of the instalments specified in that order. (2) A certificate of payment issued under section 19(3) of the Act shall be in Form 61R. 61.08 Notices Where under the Act the Court or the proper officer of the Court is required to cause the judgment debtor or judgment creditor to be notified of any matter, the notification may be effected by the Court or the proper officer of the Court causing notice in writing of the matter to be— (a) served personally on the judgment debtor or judgment creditor; r. 61.05 -- 345 of 641 -- Order 61 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 315 (b) left at the usual or last known place of residence or of business of the judgment debtor or judgment creditor with a person apparently over the age of 16 years and apparently residing there or, in the case of a place of business, apparently in charge of or employed at that place; or (c) sent by pre-paid post addressed to the judgment debtor or the judgment creditor at the address for service or the usual or last known place of residence or of business of the judgment debtor or judgment creditor, as the case requires. __________________ r. 61.08 -- 346 of 641 -- Order 62 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 316 ORDER 62 SECURITY FOR COSTS 62.01 Definitions In this Order, unless the context or subject matter otherwise requires— "defendant" includes any person against whom a claim is made in a proceeding; "plaintiff" includes any person who makes a claim in a proceeding. 62.02 When security for costs may be ordered (1) Where— (a) the plaintiff is ordinarily resident out of Victoria; (b) the plaintiff is a corporation or (not being a plaintiff who sues in a representative capacity) sues, not for the plaintiff's own benefit, but for the benefit of some other person, and there is reason to believe that the plaintiff has insufficient assets in Victoria to pay the costs of the defendant if ordered to do so; (c) a proceeding by the plaintiff in another court for the same claim is pending; (d) subject to paragraph (2), the address of the plaintiff is not stated or is not stated correctly in the plaintiff's originating process; (e) the plaintiff has changed his, her or its address after the commencement of the proceeding in order to avoid the consequences of the proceeding; r. 62.01 -- 347 of 641 -- Order 62 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 317 (f) under any Act the Court may require security for costs— the Court may, on the application of a defendant, order that the plaintiff give security for the costs of the defendant of the proceeding and that the proceeding as against that defendant be stayed until the security is given. (2) The Court shall not require a plaintiff to give security by reason only of paragraph (1)(d) if in failing to state the plaintiff's address or to state the plaintiff's correct address the plaintiff acted innocently and without intention to deceive. 62.03 Manner of giving security Where an order is made requiring the plaintiff to give security for costs, security shall be given in the manner and at the time the Court directs. 62.04 Failure to give security Where a plaintiff fails to give the security required by an order, the Court may dismiss the plaintiff's claim. 62.05 Variation or setting aside The Court may set aside or vary any order requiring a plaintiff to give security for costs. __________________ r. 62.03 -- 348 of 641 -- Order 63 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 318 ORDER 63 COSTS PART 1—PRELIMINARY 63.01 Definitions and application (1) In this Order, unless the context or subject matter otherwise requires— "bill" means bill of costs, account, or statement of charges; "costs" includes disbursements; "order" includes judgment; "party" includes— (a) a person not a party to a proceeding by or to whom costs in respect of the proceeding are payable by or under any Act or these Rules or any order of the Court; (b) in the case of a proceeding in another court or before a tribunal or an arbitration, a person whether or not a party to that proceeding or arbitration by or to whom costs in respect of the proceeding or arbitration are payable where by or under any Act or these Rules or any order of the Court the costs are to be taxed in the Court; "taxed costs" means costs taxed in accordance with this Order; "trustee" includes an executor of a will and an administrator of the estate of a deceased person. r. 63.01 -- 349 of 641 -- Order 63 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 319 (2) In this Order, unless the context or subject matter otherwise requires— (a) references to the Taxing Master include references to another officer of the Court conducting a taxation of costs under this Order; (b) references to a fund, being a fund out of which costs are to be paid, or being a fund held by a trustee, include references to any property held for the benefit of any person or class of persons (including the assets of a company in liquidation), or held on trust for any purpose; (c) references to a fund held by a trustee include references to any property to which the person is entitled as trustee, whether alone or together with any other person and whether the property is for the time being in the possession of the trustee or not. (3) This Order applies— (a) to costs payable or to be taxed under these Rules or any order of the Court; and (b) to costs to be taxed in the Court under any Act. 63.02 General powers of Court The power and discretion of the Court as to costs under section 24 of the Act shall be exercised subject to and in accordance with this Order. 63.03 Time for costs order and payment (1) The Court may in any proceeding exercise its power and discretion as to costs at any stage of the proceeding or after the conclusion of the proceeding. r. 63.02 -- 350 of 641 -- Order 63 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 320 (2) Costs which a party is required to pay under any of these Rules or an order of the Court shall, unless the Court otherwise orders, be paid forthwith. (3) Where the Court makes an interlocutory order for costs, the Court may then or thereafter order that if the party liable to pay the costs fails to do so— (a) if that party is the plaintiff, the proceeding shall be stayed or dismissed; (b) if that party is a defendant, the defendant's defence shall be struck out. (4) In paragraph (3)— "defendant" includes any person against whom a claim is made in a proceeding; "plaintiff" includes any person who makes a claim in a proceeding. 63.04 Costs of question or part of proceeding (1) The Court may make an order for costs in relation to a particular question in or a particular part of a proceeding. (2) Where the Court makes an order under paragraph (1), the Court shall by order fix the proportion of the total costs of the proceeding which is attributable to the particular question in or the particular part of the proceeding. 63.05 By whom costs to be taxed Unless the Court otherwise orders, costs taxed in accordance with this Order shall be taxed— (a) by the Taxing Master or a Master; or (b) where the Taxing Master so directs, by the Prothonotary or a Deputy Prothonotary, as the case requires. r. 63.04 -- 351 of 641 -- Order 63 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 321 63.06 Officers of Court to assist each other The Masters, the Taxing Master, the Prothonotary and the Deputy Prothonotaries shall assist each other in the taxation of costs under these Rules, and, subject to Rule 63.05, any of them may tax or assist in the taxation of a bill which has been referred by another of them for taxation. 63.07 Taxed or other costs provision (1) Subject to this Order, where by or under these Rules or any order of the Court costs are to be paid to a party, that party shall be entitled to taxed costs. (2) Where the Court orders that costs be paid to a party, the Court may then or thereafter order that as to the whole or any part of the costs specified in the order, instead of taxed costs, that party shall be entitled to— (a) a portion specified in the order of taxed costs; (b) taxed costs from or up to a stage of the proceeding specified in the order; (c) a gross sum specified in the order instead of taxed costs; (d) a sum in respect of costs to be determined in such manner as the Court directs. 63.08 Default judgment (1) Where judgment is entered for costs under Rule 21.03(2), unless the Court otherwise orders, the costs shall not be taxed but shall be fixed by the Prothonotary in accordance with the scale in Appendix A. r. 63.06 -- 352 of 641 -- Order 63 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 322 (2) Where costs are fixed by the Prothonotary under paragraph (1), the party by whom or the party to whom the costs are payable may appeal to the Taxing Master in respect of the amount so fixed on the ground that the Prothonotary did not fix the proper amount. (3) Rule 77.05 shall, with any necessary modification, apply to an appeal under paragraph (2). 63.09 Costs in other court or tribunal Where proceedings in another court or before a tribunal are remitted or transferred to or removed into the Court or an appeal to the Court is brought from another court or a tribunal, and the Court makes an order as to the costs of proceedings in that court or before that tribunal, the Court may— (a) specify the amount of the costs to be allowed; (b) order that the costs be taxed in the Court in accordance with this Order; or (c) order that the amount of the costs be determined in the court or tribunal in such manner it directs. 63.10 No order for taxation required Where— (a) the Court gives judgment, or makes an order, for costs; (b) a proceeding is dismissed with costs; (c) an application in a proceeding is refused with costs; (d) a party is otherwise liable under these Rules to pay the costs of another party; (e) a party may tax costs under any of these Rules; r. 63.09 -- 353 of 641 -- Order 63 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 323 (f) parties have agreed in writing that costs payable by one party to another may be taxed, and the agreement is filed— the costs may be taxed without an order for taxation. 63.11 Enforcement of order of taxing officer (1) Where costs are taxed otherwise than under a judgment or order for costs, an order of the Taxing Master for payment of any amount found to be due may be enforced in the same manner as a judgment for the payment of money. (2) Paragraph (1) applies to an interim order for payment of any item in a bill of costs made under Rule 63.56. 63.12 Costs in account Where the Court orders that an account be taken and the account consists in part of costs, the Court may, then or thereafter, direct that those costs be fixed, or be taxed in accordance with this Order. PART 2—ENTITLEMENT TO COSTS 63.13 Order for payment Subject to these Rules, a party to a proceeding shall not be entitled to recover any costs of the proceeding from any other party except by order of the Court. 63.14 Extension or abridgement of time Where a party applies for an extension or abridgement of any time fixed by these Rules or by any order fixing, extending or abridging time, that party shall, unless the Court otherwise orders, pay the costs of and occasioned by the application. r. 63.11 -- 354 of 641 -- Order 63 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 324 63.15 Discontinuance or withdrawal Unless the Court otherwise orders, a party who discontinues or withdraws part of a proceeding, counterclaim or claim by third party notice shall pay the costs of the party to whom the discontinuance or withdrawal relates to the time of the discontinuance or withdrawal. 63.16 Offer of compromise Where an offer of compromise is served and the offer has not been accepted at the time of verdict or judgment, liability for costs shall be determined in accordance with Rule 26.08. 63.16.1 Failure to make discovery or answer interrogatories A party on whom a notice is served in accordance with Rule 29.12.1 or 30.09.1 shall pay the costs of the notice unless the Court otherwise orders. 63.17 Amendment (1) A party who amends a pleading without the leave of the Court shall, unless the Court otherwise orders, pay the costs of and occasioned by the amendment. (2) A party who amends a pleading or other document by leave shall, unless the Court otherwise orders, pay the costs of and occasioned by the amendment. 63.18 Non-admission of fact or document Where a party serves a notice— (a) under Rule 35.03(2) disputing a fact, and afterwards that fact is proved in the proceeding; r. 63.15 -- 355 of 641 -- Order 63 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 325 (b) under Rule 35.05(2) disputing the authenticity of a document, and afterwards the authenticity of that document is proved in the proceeding— that party shall pay the costs of proof, unless the Court otherwise orders. 63.19 Interlocutory injunction Where the Court grants an interlocutory injunction and afterwards grants a further interlocutory injunction continuing the first injunction with or without modification, an order as to the costs of the further injunction shall, unless the Court otherwise orders, include the costs of the first injunction. 63.20 Interlocutory application Each party shall bear that party's own costs of an interlocutory or other application in a proceeding, whether made on or without notice, unless the Court otherwise orders. 63.21 Inquiry as to ownership of property The costs of an inquiry to ascertain the person entitled to any legacy, money, share or other property shall be paid out of the property, unless the Court otherwise orders. 63.22 Costs reserved (1) Where by order of the Court the costs of any interlocutory or other application or of any step in a proceeding are reserved, and the Court does not thereafter direct by and to whom those costs are to be paid, then, unless the Court otherwise orders, the Taxing Master may by order so direct. (2) Paragraph (1) shall not apply where after the order that costs be reserved is made the Court determines that no further order be made with respect to those costs. r. 63.19 -- 356 of 641 -- Order 63 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 326 63.22.1 Evidence transcript costs If any evidence in a proceeding is recorded and transcribed, and the Court does not direct by and to whom the costs of the recording and transcribing are to be paid, then, unless the Court otherwise orders, the Taxing Master may by order so direct. 63.23 Costs liability of lawyer (1) Where a solicitor for a party, whether personally or through a servant or agent, has caused costs to be incurred improperly or without reasonable cause or to be wasted by a failure to act with reasonable competence and expedition, the Court may make an order that— (a) all or any of the costs between the solicitor and the client be disallowed or that the solicitor repay to the client the whole or part of any money paid on account of costs; (b) the solicitor pay to the solicitor's client all or any of the costs which the client has been ordered to pay to any party; (c) the solicitor pay all or any of the costs payable by any party other than the client. (2) Without limiting paragraph (1), a solicitor fails to act with reasonable competence and expedition for the purpose of that paragraph where any application in or trial of a proceeding cannot conveniently be heard or proceed, or fails or is adjourned without any useful progress being made, by reason of the failure of the solicitor to— (a) attend in person or by a proper representative; (b) file any document which ought to have been filed; r. 63.22.1 -- 357 of 641 -- Order 63 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 327 (c) lodge or deliver any document for the use of the Court which ought to have been lodged or delivered; (d) be prepared with any proper evidence or account; or (e) otherwise proceed. (3) The Court shall not make an order under paragraph (1) without giving the solicitor a reasonable opportunity to be heard. (4) The Court may, before making an order under paragraph (1), refer the matter to the Taxing Master or a Master for inquiry and report. * * * * * (6) The Court may order that notice of any proceeding or order against a solicitor under this Rule be given to the client in such manner as the Court directs. (7) This Rule shall, with any necessary modification, apply to a barrister as it applies to a solicitor. 63.24 Money claim in wrong court (1) Subject to paragraph (1.1), where in a proceeding for debt or damages (other than a proceeding in which the jurisdiction of the County Court is unlimited) the plaintiff recovers by judgment or otherwise an amount (exclusive of costs) not exceeding one-half of the amount to which the jurisdiction of the County Court is limited, the plaintiff shall, unless the Court otherwise orders, be entitled only to the costs to which the plaintiff would have been entitled if the plaintiff had brought the proceeding in the County Court less an amount equal to the additional costs properly incurred by the defendant by reason of the proceeding having been brought in the Supreme Court instead of the County Court, but shall not be r. 63.24 -- 358 of 641 -- Order 63 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 328 required to pay to the defendant any amount by which the additional costs exceed the costs payable to the plaintiff. (1.1) Where in a proceeding for libel or slander the plaintiff recovers by judgment or otherwise an amount (exclusive of costs) not exceeding $50 000, the plaintiff shall, unless the Court otherwise orders, be entitled only to the costs to which the plaintiff would have been entitled if the plaintiff had brought the proceeding in the County Court less an amount equal to the additional costs properly incurred by the defendant by reason of the proceeding having been brought in the Supreme Court instead of the County Court, but shall not be required to pay the defendant any amount by which the additional costs exceed the costs payable to the plaintiff. * * * * * (3) Paragraph (1) does not apply where a claim of the defendant against the plaintiff for the recovery of a debt or damages is set off against the claim of the plaintiff under Rule 13.14 and the amount for which the plaintiff would be entitled to judgment exceeds one-half of the amount to which the jurisdiction of the County Court is limited. (4) Paragraphs (1) and (1.1) do not apply to a proceeding commenced in another court and transferred to the Court under the Courts (Case Transfer) Act 1991. 63.25 Other claim in wrong court Rule 63.24 shall apply, with any necessary modification— (a) where the plaintiff obtains by judgment or by the acceptance in accordance with Rule 26.03(4) of an offer of compromise r. 63.25 -- 359 of 641 -- Order 63 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 329 relief other than for the recovery of a debt or damages; and (b) any amount in dispute in the proceeding or the value of any property to which the relief relates does not exceed one-half of the amount or value to which the jurisdiction of the County Court is limited. 63.26 Trustee or mortgagee Unless the Court otherwise orders, a party who sues or is sued as trustee or mortgagee shall, be entitled to the costs of the proceeding out of the fund held by the trustee or out of the mortgaged property in so far as the costs are not paid by any other person. PART 3—COSTS OF PARTY IN A PROCEEDING 63.27 Application This Part applies to costs in a proceeding which by or under any Act or these Rules or any order of the Court are to be paid to a party to the proceeding either by another party or out of a fund. 63.28 Bases of taxation Subject to this Part, costs in a proceeding which are to be taxed shall be taxed on— (a) a party and party basis; (b) a solicitor and client basis; (c) an indemnity basis; or (d) such other basis as the Court may direct. r. 63.26 -- 360 of 641 -- Order 63 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 330 63.29 Party and party basis On a taxation on a party and party basis all costs necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being taxed shall be allowed. 63.30 Solicitor and client basis On a taxation on a solicitor and client basis all costs reasonably incurred and of reasonable amount shall be allowed. 63.30.1 Indemnity basis (1) Subject to paragraph (2), on a taxation on an indemnity basis all costs shall be allowed except in so far as they are of an unreasonable amount or have been unreasonably incurred. (2) Any doubt which the Taxing Master may have as to whether the costs were unreasonably incurred or were unreasonable in amount shall be resolved in favour of the party to whom the costs are payable. 63.31 General basis Except as provided by these Rules or any order of the Court costs shall be taxed on a party and party basis. 63.32 Where solicitor and client basis applicable (1) The Court may order that costs be taxed on a solicitor and client basis. (2) Without limiting paragraph (1), the Court may order that costs be taxed on a solicitor and client basis where the Court makes an order for— (a) the payment to a party of costs out of a fund; (b) the payment of costs to a party who sues or is sued as trustee. r. 63.29 -- 361 of 641 -- Order 63 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 331 63.33 Party as trustee Where a party who sues or is sued as trustee is entitled to be paid costs out of any fund which the party holds in that capacity, the costs shall, unless the Court otherwise orders, be taxed on a solicitor and client basis. 63.34 Charges of solicitor (1) Subject to paragraph (3), the solicitor for the party to whom costs are payable shall be entitled to charge and be allowed the fees set forth in Appendix A. (2) Witnesses' expenses and interpreters' allowances shall be fixed in accordance with the scale in Appendix B. (3) The Court may, on special grounds arising out of the nature and importance or the difficulty or urgency of the case, allow an increase not exceeding 30 per cent of the solicitor's charges allowed on the taxation of costs with respect to— (a) the proceeding generally; or (b) to any application, step or other matter in the proceeding. (4) Where the Court so directs, the Taxing Master shall have the same authority as the Court under paragraph (3) to allow an increase in the fees set forth in Appendix A. PART 4—TAXING MASTER 63.35 Powers of Taxing Master On a taxation of costs under this Order the Taxing Master, in addition to any powers conferred by any Act, shall have and may exercise all the power and authority which under any Act or these r. 63.33 -- 362 of 641 -- Order 63 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 332 Rules a Master has on the hearing of an application in a proceeding. 63.36 Costs of taxation (1) Costs to be taxed under these Rules shall include the costs of the taxation. (2) Costs to be taxed under a judgment or order shall, unless the judgment or order otherwise provides, include the costs of the taxation. (3) After service of a summons under Rule 63.38 for the taxation of costs, the party entitled to costs and the party liable for them may serve on one another an offer of compromise in respect of the amount of the costs to be taxed, and Order 26 shall, with any necessary modification, apply as if in Rule 26.03(3) and (4) "seven days" were substituted for "14 days" and as if the order of the Taxing Master on the taxation were a verdict or judgment at trial. (4) Subject to this Rule and to any order of the Court, the Taxing Master may make orders for the costs of a taxation. (5) Paragraphs (1) to (4) apply subject to any Act and to Rule 63.85. PART 5—PROCEDURE ON PARTY AND PARTY TAXATION 63.37 Application (1) This Part applies to— (a) the costs of any proceeding in the Court, including— (i) the costs of an appeal to the Court of Appeal; r. 63.36 -- 363 of 641 -- Order 63 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 333 (ii) in the case of an appeal to the Court from another court or from a tribunal, the costs of proceedings in that court or before that tribunal; (iii) in the case of a proceeding in another court or before a tribunal which is remitted or transferred to or removed into the Court, the costs of the whole proceeding, both before and after the remission, transfer or removal, which by or under these Rules or an order of the Court are to be paid to any party by another party or out of a fund; (b) the costs of an arbitration which by or under any Act are to be taxed in the Court. (2) Subject to Part 6, this Part applies to the taxation of costs payable to a solicitor by the solicitor's client. 63.38 Summons for taxation (1) An application to the Taxing Master for costs to be taxed shall be made by summons filed with the Taxing Master's Associate or the Prothonotary. (2) Where the taxation is made pursuant to an order or judgment, a copy of the order or judgment shall be filed with the summons. (3) The summons shall be in Form 63A. (4) Unless the Taxing Master otherwise directs, the summons shall be served not less than 14 days before the day for hearing named in the summons. (5) Except as provided in paragraphs (1) to (4), Order 46 shall, with any necessary modification, apply to the application. r. 63.38 -- 364 of 641 -- Order 63 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 334 63.39 Filing of bill (1) A party who applies for costs to be taxed shall file with the summons a bill in respect of the costs. (2) The bill of costs shall be prepared in accordance with Rule 63.42. (3) The Taxing Master may direct the party to lodge before the day for hearing named in the summons any documents in the party's possession, custody or power that will be required for the purpose of evidence on the taxation. 63.40 Service of bill The Taxing Master shall not tax costs unless the party entitled to costs serves a copy of the bill of costs on the party liable for the costs before or at the time of service of the summons under Rule 63.38. 63.41 Defendant not appearing Service of a summons and copy bill of costs on a defendant who has not filed an appearance shall not be necessary. 63.42 Content of bill of costs (1) In a bill of costs for taxation under this Order charges and disbursements shall be set out in separate columns, and the amounts in each column shall be totalled at the foot of each page and the total carried forward to the top of the next page. (2) The bill shall contain— (a) items numbered in chronological order describing briefly the work done by the solicitor for the party entitled to costs, and stating beside each item the amount claimed for the work and the amount of any disbursement made; r. 63.39 -- 365 of 641 -- Order 63 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 335 (b) at the conclusion of the chronological description of the work done, a description, having regard to the matters referred to in Rule 63.48, of work done justifying an allowance under Appendix A of the amount claimed beside that item. (3) For the purpose of paragraph (2)(a) work done in Victoria by a servant or agent of the solicitor shall be taken to have been done by the solicitor. (4) Where work for which costs are claimed was done by a clerk of the solicitor and that fact is relevant to the amount of costs allowable for the work, the name and position of the clerk shall be stated in the bill. 63.43 Disbursement or fee not paid (1) A disbursement may be included in a bill notwithstanding that it has not been paid if the bill states that fact. (2) On the taxation, the disbursement may be allowed if— (a) it is paid before taxation; or (b) an undertaking to the Court, satisfactory to the Taxing Master, is given that it will be paid within a time specified in the undertaking. 63.44 Charge of lawyer out of Victoria Where a bill includes a charge for work done by a lawyer practising in a place out of Victoria— (a) the charge shall be shown as a disbursement; and (b) so far as practicable, the charge shall, if allowed, be allowed in an amount appropriate to the place where the lawyer practises. r. 63.43 -- 366 of 641 -- Order 63 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 336 63.45 Amendment of bill The Court or the Taxing Master may at any stage— (a) give leave to a party to amend or withdraw a bill; (b) order that a party file another bill. 63.46 Agreement as to part of bill Where the parties agree in writing that part of the costs to be taxed may be allowed at a specified amount and the agreement is subscribed to the bill or filed— (a) Rule 63.42 shall not apply to what is agreed unless the Taxing Master otherwise directs; (b) Rules 63.44 and 63.45 shall apply to the agreement as they apply to a bill. 63.47 Objection to bill (1) A party on whom a summons under Rule 63.38 and a bill is served may by notice object to any item in the bill. (2) The notice shall— (a) state by a list each item in the bill to which the party objects; and (b) shall also state specifically and concisely the grounds of objection to each item. (3) The notice shall be filed with the Taxing Master and served on the party filing the bill and on any other party to whom the summons for the taxation is addressed not less than seven days before the day for hearing named in the summons. r. 63.45 -- 367 of 641 -- Order 63 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 337 63.48 Discretionary costs (1) Except where these Rules or any order of the Court otherwise provides, the fees and allowances which are discretionary that are referred to in Appendix A shall be allowed at the discretion of the Taxing Master. (2) In exercising the discretion under paragraph (1) the Taxing Master shall have regard to— (a) the complexity of the item or of the proceeding in which it arose and the difficulty or novelty of the questions involved; (b) the nature and importance of the proceeding; (c) the skill, specialised knowledge and responsibility involved; (d) the number and importance of the documents prepared or perused, without regard to length; (e) the place where and the circumstances in which the business involved was transacted; (f) the labour involved and the time spent by the solicitor or counsel; (g) the amount or value of any money or property involved; (h) any other fees and allowances payable to the solicitor or counsel in respect of other items in the same proceeding; (i) any other relevant circumstances. 63.49 Taxation where no objection Where no objection to a bill is made in accordance with Rule 63.47, the Taxing Master may allow or disallow the amount of the costs in the bill in whole or in part. r. 63.48 -- 368 of 641 -- Order 63 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 338 63.50 Attendance of parties (1) The Taxing Master may give directions with respect to— (a) the parties to whom a summons under Rule 63.38 shall be addressed; (b) the parties who should attend or be represented on any taxation. (2) The Taxing Master may disallow the costs of attendance on a taxation of any party whose attendance is unnecessary. (3) Notwithstanding paragraphs (1) and (2), any party interested may attend a taxation before the Taxing Master. 63.51 Reference to Judge The Taxing Master may refer to a Judge for directions any question arising on a taxation. 63.52 Notice to person interested in fund (1) Where costs are payable out of a fund, the Taxing Master may— (a) adjourn the taxation to a specified day; and (b) order that the party to whom the costs are payable serve on any person interested in the fund, without charge to that person, a copy of the whole or any part of the bill and a notice in accordance with paragraph (2). (2) A notice under paragraph (1)(b) shall state— (a) that the costs are payable out of the fund, identifying it, and that the bill is being taxed; (b) the day to which the taxation is adjourned; and (c) such other information as the Taxing Master may direct. r. 63.50 -- 369 of 641 -- Order 63 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 339 (3) Unless the Taxing Master otherwise orders, service under paragraph (1)(b) shall be personal. 63.53 Application by person liable to pay (1) Where a party who is entitled to be paid costs and to have the costs taxed under this Part does not apply to have the costs taxed within 30 days after service on that party of a request in writing to do so by a party liable for the costs, the Taxing Master— (a) may order the party entitled to file and serve a summons under Rule 63.38; and (b) may fix a time for compliance. (2) Where a party in respect of whom an order is made under paragraph (1) fails to comply with the order, the Taxing Master may— (a) disallow the costs of the party or allow a nominal or other sum for costs; (b) order that party to pay the costs of any other party. 63.54 Solicitor at fault (1) This Rule applies where— (a) a party fails to apply to have costs taxed within a time fixed under Rule 63.53(1) and the failure is occasioned by the neglect or delay of the party's solicitor; or (b) in any proceedings before the Taxing Master the solicitor for any party— (i) is guilty of neglect or delay; or (ii) causes any other party unnecessary expense. r. 63.53 -- 370 of 641 -- Order 63 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 340 (2) The Taxing Master may— (a) order the solicitor to pay costs to any party in respect of the proceedings before the Taxing Master; (b) refuse to allow the fees to which the solicitor would otherwise be entitled for drawing any bill or for any attendance before the Taxing Master. 63.55 Cross costs (1) Where a party entitled to be paid costs is also liable to pay costs, the Taxing Master may— (a) tax the costs which that party is liable to pay and set off the amount allowed against the amount he is entitled to be paid and by order state the amount of the balance and the parties by whom and to whom the balance is payable; or (b) decline to make an order as to the costs which the party is entitled to be paid until that party has paid or tendered the amount he is liable to pay. (2) Costs may be set off under paragraph (1)(a) notwithstanding that a solicitor for a party has a lien for costs in the proceeding. 63.56 Order on taxation (1) Where the Taxing Master taxes a bill or otherwise fixes or assesses an amount for costs, the result shall be stated in the form of an order. (2) The Taxing Master may, after the conclusion of the taxation of any bill, make a final order with respect to the amount at which he or she allows the costs or of his or her disallowance of the costs. r. 63.55 -- 371 of 641 -- Order 63 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 341 (3) In the course of the taxation the Taxing Master may make separate and interim orders in respect of any item in a bill. (4) An order under this Rule shall be authenticated and filed in accordance with Order 60. (5) The Taxing Master may at any time correct— (a) a clerical mistake in an order made under this Rule; or (b) an error arising in an order from any accidental slip or omission. (6) In paragraphs (4) and (5) "order" means final or interim order, as the case requires. 63.56.1 Review by Taxing Master (1) Where any party interested objects to an order of the Taxing Master allowing or disallowing, wholly or in part, any item in a bill, or allowing some amount in respect of any item, the Taxing Master may, on the application of that party, review the order. (2) An application under paragraph (1) shall be made by notice. (3) The notice— (a) shall state by a list each item in the bill in respect of which the party objects to the order of the Taxing Master; and (b) shall also state specifically and concisely the grounds of objection to that order and the order sought in its place. (4) The notice shall be filed, a copy lodged with the Taxing Master and a copy served on each party interested within 14 days after the order of the Taxing Master. r. 63.56.1 -- 372 of 641 -- Order 63 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 342 (5) Upon the application the Taxing Master— (a) shall reconsider and review the taxation upon the objections stated in the notice; and (b) shall make an order confirming the taxation or make such further or other order as may be necessary. (6) For the purposes of the review the Taxing Master may receive further evidence in respect of any objection. (7) The Taxing Master may, and if required by any party within seven days after the order is made under paragraph (5) shall, give written reasons for the decision in respect of any item in the bill to which objection was taken in the notice. 63.57 Review by Judge (1) An order of the Taxing Master under Rule 63.56.1 may be reviewed by a Judge. (2) Where any party interested objects to an order of the Taxing Master under Rule 63.56.1, a Judge may on the application of that party review the order if the Taxing Master has given reasons under paragraph (7) of that Rule. (3) An application under paragraph (2) shall be made by notice. (4) The notice— (a) shall state by a list each item in the bill in respect of which the party objects to the order of the Taxing Master on the review; and (b) shall also state specifically and concisely the grounds of objection to that order and the order sought in its place. r. 63.57 -- 373 of 641 -- Order 63 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 343 (5) The notice shall be filed, a copy lodged with the Taxing Master and a copy served on each party interested within 14 days after the making of the order of the Taxing Master or the giving of reasons, whichever is the later. (6) On the review, unless the Judge otherwise orders— (a) further evidence shall not be received; (b) the party giving notice shall not raise any ground of objection not stated in the notice. (7) On the review, the Judge may— (a) exercise all the powers and discretions of the Taxing Master with respect to the subject matter of the review; (b) confirm, set aside or vary the order of the Taxing Master; (c) remit any item in the bill to the Taxing Master; (d) make such other order as the case requires. (8) Except so far as a Judge or the Taxing Master otherwise orders, a review under this Rule shall not operate as a stay of execution or of proceedings under the order of the Taxing Master to which the review relates. PART 6—COSTS OF A SOLICITOR 63.58 Application This Part applies— (a) where costs are payable to a solicitor by the solicitor's client, whether or not in respect of a proceeding in the Court, and by or under any Act or these Rules or any order of the Court or any agreement between the solicitor r. 63.58 -- 374 of 641 -- Order 63 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 344 and the client the costs are required or permitted to be taxed in the Court; (b) where any person not the client of a solicitor is liable to pay or, having been so liable, has paid costs which are or were chargeable by the solicitor to the client, whether or not in respect of a proceeding in the Court, and by or under any Act or these Rules or any order of the Court or any agreement between that person and the client the costs are required or permitted to be taxed in the Court. 63.59 Basis of taxation of costs payable by client (1) Costs payable to a solicitor by the solicitor's client to which the Part applies shall, subject to any Act or any order of the Court or any agreement between the solicitor and the client, be taxed on a solicitor and client basis. (2) The solicitor and client basis of taxation shall be as provided by Rule 63.61. 63.60 Basis of taxation of costs payable otherwise than by client Costs payable to a solicitor by a person other than the client to which this Part applies shall, subject to any Act or any order of the Court or any agreement between that person and the client, be taxed on a party and party basis in accordance with Rule 63.29. r. 63.59 -- 375 of 641 -- Order 63 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 345 63.61 Solicitor and client basis (1) On a taxation of the costs payable to a solicitor by the solicitor's client all costs reasonably incurred and of reasonable amount shall be allowed. (2) Costs not reasonably incurred or not of reasonable amount may nevertheless be allowed if— (a) the costs were incurred with the authority of or the amount was authorised by the client; and (b) before the costs were incurred the solicitor expressly warned the client that the costs might not be allowed on a taxation of costs on a party and party basis. (3) An authority for the purpose of this Rule may be express or implied. (4) Where the client is a person under disability, references to the client in paragraph (2) include references to the litigation guardian of the client. 63.62 Contentious business (1) This Rule applies to the taxation of the costs payable to a solicitor by the solicitor's client for work done in a contentious matter where at the time the work was completed no proceeding had been commenced by or against the client in respect of the matter in any court or before any tribunal. (2) Costs for work in the matter shall be allowed in accordance with the scale of costs of the court or tribunal in or before which, in the opinion of the Taxing Master, it would be appropriate to commence a proceeding in respect of the matter or, if that court or tribunal has no scale of costs, in accordance with Appendix A. r. 63.61 -- 376 of 641 -- Order 63 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 346 63.63 Procedure on taxation (1) Subject to the following Rules and to any Act or order of the Court— (a) costs under this Part shall be taxed as provided by Part 5; and (b) Part 5 shall, with any necessary modification, apply to the taxation accordingly. (2) References in paragraph (1) to the application of Part 5 of this Order to the taxation of costs under this Part include references to a review of an order of the Taxing Master on the taxation under Rule 63.57. 63.64 Appointment to tax (1) This Rule applies where by any Act a bill in respect of costs to which this Part applies may be taxed by the Taxing Master on an appointment obtained as of course and without an order of the Court on application by the client or other person liable to pay the costs. (2) Application to the Taxing Master to tax the bill shall be made by summons in accordance with Rule 63.38. 63.65 Reference for taxation (1) This Rule applies where the Court by order, whether or not made by or under any Act, refers a bill of costs to the Taxing Master for taxation or directs that a bill of costs be taxed. (2) The taxation shall be brought before the Taxing Master on application by summons in accordance with Rule 63.38. (3) Unless the Court otherwise orders, the summons shall be filed within 14 days after the day the order is made. r. 63.63 -- 377 of 641 -- Order 63 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 347 63.66 Inclusion in bill of disbursement not made Where the solicitor acts as agent for a lawyer practising in a place out of Victoria, the professional fees of that lawyer shall not constitute a disbursement of the solicitor for the purpose of Rule 63.43 so as to require payment of those fees before the commencement of the taxation. 63.67 Failure to serve bill or tax (1) Where a solicitor who is entitled to be paid costs fails or refuses to serve a bill for the costs on the client, the Taxing Master may— (a) disallow the costs of the solicitor or allow a nominal or other sum for costs; (b) order the solicitor to pay any costs of the client occasioned by the failure or refusal. (2) Where a person who is entitled to have a bill of costs taxed fails or refuses to do so, and any person interested in the taxation is prejudiced thereby, the Taxing Master may— (a) disallow any costs which might otherwise be payable to the person entitled to have the bill taxed or allow a nominal or other sum for costs; (b) order that person to pay any costs of the person interested occasioned by the failure or refusal. (3) For the purpose of the Rule— (a) a solicitor shall be taken to have failed or refused to serve a bill of costs if within 60 days after service on the solicitor of a request in writing by the client that the solicitor serve a bill the solicitor does not do so; r. 63.66 -- 378 of 641 -- Order 63 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 348 (b) a person shall be taken to have failed or refused to have a bill of costs taxed if within 60 days after service on the person of a request in writing by any person interested that the bill be taxed that person does not apply in accordance with Rule 63.38 for the taxation of the bill. PART 7—ALLOWANCES ON TAXATION GENERALLY 63.68 Application and interpretation This Part applies to any taxation of costs in the Court. 63.69 Necessary or proper costs All costs shall be allowed as are necessary or proper for the attainment of justice or for enforcing or defending the rights of any party. 63.70 Unnecessary or careless work (1) The Court by order or the Taxing Master on a taxation may disallow the costs of any work which is not necessary or is done without due care. (2) Where a document is of unnecessary length, for the purpose of paragraph (1) work which is not necessary shall include work for that part of the document which is not necessary. (3) A party whose costs for work is disallowed under paragraph (1) shall, unless the Court or the Taxing Master otherwise orders, pay costs for any work by another party occasioned by the work for which the costs were disallowed. r. 63.68 -- 379 of 641 -- Order 63 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 349 63.71 Gross sum for costs (1) Where costs are incurred improperly or without reasonable cause or are wasted by undue delay or negligence or by any other misconduct or default or where from any other cause the amount of costs is excessive, only costs which were reasonable and proper shall be allowed, and the Taxing Master may assess those costs at a gross sum. (2) The Taxing Master may apportion costs assessed under paragraph (1) among different parties. 63.72 Increased allowance The Taxing Master may increase the amount or value of any allowance or expense in Appendix A or Appendix B as he or she thinks fit. 63.73 Copy documents The fees allowed in Appendix A for drawing any document shall include not more than three copies of the document made for the use of the party, the party's solicitor or the agent of the solicitor, or for counsel to settle. 63.74 Folio For the purpose of calculating the allowance for a document according to the length of the document measured by folio, a folio shall comprise 100 words, and any number however set out shall count as one word. 63.75 Service of several documents Two or more documents in the same proceeding which can be served together shall be so served, and a fee for the service of one only shall be allowed. r. 63.71 -- 380 of 641 -- Order 63 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 350 63.76 Defendants with same solicitor Where two or more defendants are represented by the same solicitor, and the solicitor does work for one or some of them separately which could have been done for some or all of them together, on taxation of the solicitor's bill of costs, whether between party and party or between solicitor and client, the Taxing Master may disallow costs for the unnecessary work. 63.77 Procuring evidence (1) Reasonable charges and expenses properly incurred in procuring evidence, and the attendance of witnesses, shall be allowed. (2) For the purpose of paragraph (1) the attendance of a witness includes attendance at a conference with counsel before trial, and, in the case of an expert witness, includes qualifying to give evidence as an expert. 63.78 Negotiations Costs reasonably and properly incurred with respect to negotiations for compromise shall be allowed whether or not the negotiations were successful. 63.79 Conference A fee for a conference shall not be allowed in addition to the fee of a solicitor or counsel for drawing and settling, or perusing, or advising on any document, unless for special reason the conference was necessary or proper. 63.80 Retainer of counsel A retaining fee to counsel shall not be allowed on taxation as between party and party. r. 63.76 -- 381 of 641 -- Order 63 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 351 63.81 Advice and other work of counsel (1) Costs reasonably and properly incurred with respect to— (a) the advice of counsel on the pleadings, evidence or other matter in a proceeding; (b) counsel drawing or settling any pleading or other document in a proceeding which is proper to be drawn or settled by counsel; (c) counsel engaging in any preparation, view, conference or consultation— shall be allowed. (2) Where affidavits or interrogatories which are proper to be drawn or settled by counsel are or could have been drawn or settled at the same time, only one fee shall be allowed. 63.82 Hearing and trial fees (1) The fees payable to counsel to appear at a hearing or trial shall be at the discretion of the Taxing Master who may fix such fees— (a) on the basis of daily fees; (b) on the basis of a brief fee and refreshers; (c) as a lump sum fee covering the whole of the hearing or trial; or (d) on such other basis as the Taxing Master considers appropriate. (2) Where such fees are fixed on the basis of daily fees— (a) the daily fee for the second or any subsequent day of the hearing or trial shall, unless the Taxing Master determines otherwise by reason of the special circumstances of the case, include all time spent by counsel in preparation and r. 63.81 -- 382 of 641 -- Order 63 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 352 conferences on that day of the hearing or trial as well as the actual time spent by counsel in Court on the hearing or trial on that day; and (b) the Taxing Master may allow differing amounts in respect of various days of the hearing or trial. (3) Where such fees are fixed on the basis of a brief fee and refreshers and where a hearing or trial occupies either on the first day only or partly on the first day and partly on a subsequent day or days more than six working hours (including any luncheon adjournment) without being concluded— (a) the Taxing Master may allow a refresher fee for every five working hours (including any luncheon adjournment) subsequent to the expiration of the first six hours; and (b) the final refresher may be allowed for any period less than five hours that the hearing or trial may occupy. 63.83 Premature brief Costs with respect to the preparation and delivery of a brief to counsel for a hearing or trial which did not take place shall not be allowed if the costs were incurred prematurely. 63.84 Barrister and solicitor (1) This Rule applies where a barrister and solicitor acts in both capacities or appears as a barrister, instructed by a partner or employee. (2) The person so acting or appearing or his or her partner shall not be allowed a fee for any instructions for a brief or for drawing or engrossing a brief, but the Taxing Master may allow one of them a fee for preparing for trial. r. 63.83 -- 383 of 641 -- Order 63 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 353 63.85 Bill reduced by a sixth (1) This Rule applies to the taxation of a bill of costs payable out of a fund. (2) If the amount of the professional charges and disbursements in the bill is reduced by a sixth part, unless the Taxing Master otherwise orders, no costs shall be allowed to the solicitor filing the bill for taxation for preparing the bill and for attending the taxation. __________________ r. 63.85 -- 384 of 641 -- Order 64 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 354 ORDER 64 APPEAL TO COURT OF APPEAL 64.01 Definitions In this Order, unless the context or subject matter otherwise requires— "appeal" includes— (a) an application for a new trial; (b) an application to set aside a decision; (c) a cross-appeal— and, subject to the provisions of the County Court Act 1958, includes an appeal from the County Court; "decision" includes a judgment, order, verdict or finding; "respondent" means a person served with a notice of appeal. 64.02 Appeal by notice An appeal to the Court of Appeal shall be brought by notice in accordance with this Order. 64.03 Time for notice of appeal (1) Subject to paragraph (2) a notice of appeal shall, unless the Court of Appeal or a Judge otherwise orders, be served— (a) within 14 days after the day the decision of the court of first instance was given; or (b) if leave to appeal is necessary, within 14 days of leave being granted. r. 64.01 -- 385 of 641 -- Order 64 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 355 (2) A notice of appeal from a decision refusing an application made without notice to any person shall, unless the Court of Appeal or a Judge otherwise orders, be filed— (a) within 14 days after the decision; or (b) if leave to appeal is necessary, within 14 days of leave being granted. (3) An application for leave to appeal shall, unless the Court of Appeal or a Judge otherwise orders, be made within 14 days after the day the decision of the court of first instance was given. (4) If leave to appeal is necessary and notice of appeal is served before leave has been granted, any person on whom the notice of appeal has been served may apply to the Court of Appeal for an order dismissing the appeal as incompetent. 64.04 Service of notice of appeal (1) Except as provided by paragraph (2), a notice of appeal shall be served on all parties affected by the appeal. (2) A notice of appeal under Rule 64.03(2) shall not be served. (3) Notwithstanding paragraphs (1) and (2), the Court of Appeal may direct that notice of appeal be served on any party to the proceeding or on a person not a party. (4) A notice of appeal may be served on a party personally or at the party's address for service under these Rules, including Rule 1.19. r. 64.04 -- 386 of 641 -- Order 64 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 356 (5) Where notice of appeal is served on a person not a party— (a) that person shall not take any step in the appeal without first filing and serving a notice of address for service in Form 64A; (b) the Court of Appeal may give such judgment or make such order on the appeal as might have been given or made if the person served with the notice of appeal had been originally a party. 64.05 Contents of notice of appeal (1) A notice of appeal— (a) shall state whether the whole or part only and which part of the decision of the court of first instance is complained of; and (b) shall also state specifically and concisely the grounds of complaint and the judgment or order sought in place of that from which the appeal is brought. (2) A notice of appeal shall name each party or person upon whom it is proposed to serve the notice of appeal. 64.06 Amendment of notice of appeal (1) A notice of appeal may be amended at any time by leave of the Court of Appeal. (2) A notice of appeal may by leave of the Registrar be amended at any time before the contents of the appeal book in relation to the appeal have been settled under Rule 64.09, and the Registrar may direct that the appellant serve a copy of the notice of appeal as amended on the respondent. r. 64.05 -- 387 of 641 -- Order 64 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 357 64.07 Filing of notice of appeal Where notice of appeal is served, the appellant shall within seven days after service file a copy of the notice accompanied by a list signed by or on behalf of the appellant of the persons upon whom the notice has been served and the dates of such service. 64.08 Appeal Book (1) Within seven days after the expiration of the time fixed by or under Rule 64.03 for the service or filing of notice of appeal, the appellant shall deliver to the Registrar and to all other persons upon whom the notice of appeal has been served a note of proposed contents of the appeal book. (2) The time fixed by paragraph (1) may be extended by direction of the Registrar. (3) Subject to Rule 64.09, as soon as practicable after the delivery to the Registrar of the note of the proposed contents the Registrar shall give directions to the appellant for the preparation and delivery of the appeal book. 64.09 Contents of appeal book (1) The Registrar shall settle the contents of the appeal book in consultation with the parties and for that purpose may add to or vary the contents. (2) For the purpose of settling the contents of the appeal book, the Registrar may— (a) consult with the Judge from whose decision the appeal is brought; and (b) give directions and, if he or she considers it necessary or desirable, require the attendance of the parties. r. 64.07 -- 388 of 641 -- Order 64 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 358 (3) On an appeal by leave, the Registrar may direct that the application papers filed under Rule 65.04 comprise a part of the appeal book. (4) Where the Registrar gives a direction under paragraph (3)— (a) the appellant shall file such further copies of the application papers as the Registrar directs for the use of the members of the Court of Appeal; (b) unless the Registrar otherwise directs, the appellant is not required under Rule 64.11(2) to deliver any further copies of the application papers. (5) Unless the Court of Appeal otherwise orders, the costs of settling the contents of the appeal book shall be costs in the appeal. 64.10 Notes for guidance The Registrar shall prepare and publish from time to time, subject to the approval of the President, notes for the guidance of appellants in the preparation of appeal books. 64.11 Delivery of appeal book (1) The appellant shall prepare the appeal book in accordance with the directions of the Registrar and, subject to such directions, the notes published under Rule 64.10. (2) Within the time fixed by the Registrar for the filing of the appeal book (or such further time as the Registrar allows) the appellant shall without charge deliver to each respondent and to the Registrar so many copies of the appeal book as the Registrar determines. r. 64.10 -- 389 of 641 -- Order 64 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 359 (3) If the appeal book does not conform to the directions of the Registrar, the Registrar may require the appellant to amend it to make it conform. (4) Where the Registrar requires the appellant to amend the appeal book, the appellant shall within the time fixed or the further time allowed by the Registrar deliver copies of the amended appeal book (or of the amendments, if the Registrar so directs) to each respondent and to the Registrar in accordance with paragraph (2). (5) The Registrar may direct the appellant to deliver to a respondent or to the Registrar further copies of the appeal book without charge. 64.12 Costs of appeal book (1) The expense of printing the appeal book shall in the first instance be borne by the appellant unless the Registrar otherwise directs. (2) The costs of the appeal book shall ultimately be costs in the appeal unless the Court of Appeal otherwise orders. 64.13 Entry of appeal Within four days after the delivery of the appeal books to the Registrar under Rule 64.11 the Registrar shall enter the appeal in the list of appeals for hearing and notify the Prothonotary accordingly. 64.14 Discontinuance without leave (1) An appellant may at any time discontinue an appeal— (a) wholly; or r. 64.12 -- 390 of 641 -- Order 64 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 360 (b) with respect to— (i) any part of the decision complained of or any ground of appeal; (ii) any respondent, where there are two or more respondents. (2) Subject to paragraph (4), an appeal is discontinued when the appellant files a notice stating that the appeal is discontinued or, where the appeal is not wholly discontinued, stating the extent of the discontinuance, and on the same day serves a copy on each party to the appeal. (3) In relation to a respondent in respect of whom an appeal is wholly discontinued, the appellant shall, unless the Court of Appeal otherwise orders, pay the costs of the respondent to the time of the discontinuance. (4) Notwithstanding the discontinuance of an appeal under paragraph (2), the Court of Appeal may order that the appeal be not discontinued or may make such order as to costs or otherwise as it thinks fit. 64.15 Discontinuance by leave (1) An appeal may at any time be discontinued either wholly or in part and with respect to any one or more respondents by leave of the Court of Appeal. (2) When granting leave the Court of Appeal may impose such terms or make such order as to costs or otherwise as it thinks fit. (3) Unless the Court of Appeal otherwise orders, an appeal which is discontinued by leave under this Rule is discontinued upon the making of and in accordance with the order granting leave without the filing of any further notice. r. 64.15 -- 391 of 641 -- Order 64 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 361 64.16 Appeal taken to be abandoned (1) If the appellant does not— (a) within the time fixed by or under Rule 64.08 deliver to the Registrar a note of the proposed contents of the appeal book; or (b) deliver to the Registrar within such time as is fixed or allowed by the Registrar such number of copies of the appeal book as the Registrar has determined— the appeal shall be taken to be abandoned. (2) Notwithstanding paragraph (1)— (a) the Court of Appeal may at any time order that an appeal not be taken to be abandoned; (b) the Registrar may, within 21 days after the day on which an appeal is taken to be abandoned, order by consent that the appeal not be taken to be abandoned. (3) In respect of an appeal which is taken to be abandoned, the appellant shall, unless the Court of Appeal otherwise orders, pay the costs of the respondent to the time of the abandonment. 64.17 Cross-appeal (1) Subject to paragraph (5), a respondent who desires to appeal from the decision from which the appellant has appealed shall do so by notice of cross-appeal. (2) The respondent shall, within 14 days after the service upon the respondent of the notice of appeal serve a copy of the notice of cross-appeal on the appellant and any other party directly affected by the cross-appeal. r. 64.16 -- 392 of 641 -- Order 64 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 362 (3) Paragraphs (3), (4) and (5) of Rule 64.04, Rule 64.05 and paragraph (1) of Rule 64.06 apply to a notice of cross-appeal as if it were a notice of appeal. (4) A cross-appeal may be discontinued and Rules 64.14 and 64.15 apply with any necessary modification. (5) If a respondent does not seek to have the judgment or order actually given or made discharged or varied but proposes to contend that it should be affirmed on a ground, whether of fact or law, which was not decided or was erroneously decided or was not raised for decision below, it shall not be necessary to give notice of cross- appeal, but not less than 14 days before the day fixed for the hearing of the appeal the respondent shall file and serve a notice of contention, stating the ground to be relied upon. 64.18 Filing notice of cross-appeal Within seven days after service of the notice of cross-appeal the respondent shall file a copy of the notice accompanied by a list signed by or on behalf of the respondent of the persons upon whom the notice has been served and the dates of such service. 64.19 Effect of cross-appeal notice (1) In settling the contents of an appeal book under Rule 64.09 the Registrar shall have regard to any notice of cross-appeal. (2) Where notice of cross-appeal is given and appeal books are not delivered in accordance with Rule 64.11, the respondent may apply to the Court of Appeal for directions relating to the appeal and cross-appeal. r. 64.18 -- 393 of 641 -- Order 64 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 363 (3) Where an appeal is discontinued or is taken to be abandoned, a respondent who has given notice of cross-appeal may proceed with the cross-appeal and the Court of Appeal may give directions for its conduct. 64.20 Time (1) The Court of Appeal may extend or abridge any time fixed by or under this Order. (2) The Registrar may extend or abridge any time fixed by the Registrar under this Order. 64.21 Directions Notwithstanding any direction given by the Registrar, the Court of Appeal may at any time of its own motion or on application give directions in relation to an appeal, application or other proceeding before it. 64.22 Powers of the Court of Appeal (1) On an appeal the Court of Appeal shall have all the powers and duties as to amendment and otherwise of the Court of first instance. (2) The Court of Appeal shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been given or made, and to make such further or other order as the case may require. (3) The Court of Appeal shall have power to receive further evidence upon questions of fact, either by oral examination in court, by affidavit, or by deposition taken before an examiner. (4) Where any question arises as to any matter occurring in the Court of first instance, the Court of Appeal may have regard to verified notes or other evidence and to such other materials as it thinks fit. r. 64.20 -- 394 of 641 -- Order 64 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 364 (5) Without limiting paragraph (4), the Court of Appeal may call for a report from the Court of first instance, and if the contents of that report have first been made available to the parties to the appeal, may, so far as it thinks fit, act upon the report. (6) On an appeal the powers of the Court of Appeal shall not be limited by reason of any order made on an interlocutory application from which there has been no appeal. (7) The powers of the Court of Appeal under this Rule may be exercised notwithstanding— (a) that no notice of appeal or notice of cross- appeal has been given in respect of any particular part of the decision of the Court of first instance or by any particular party to the proceeding in that Court; or (b) that any ground for allowing the appeal or for affirming or varying the decision of that Court is not specified in such a notice. 64.23 New trial (1) If upon the hearing of an appeal it appears to the Court of Appeal that there ought to be a new trial, the Court of Appeal may order that the judgment or the verdict and judgment be set aside, and that there be a new trial. (2) A new trial shall not be granted on the ground of misdirection or of the improper admission or rejection of evidence, or because the verdict of the jury was not taken upon a question which the Judge at the trial was not asked to leave to it, unless in the opinion of the Court of Appeal some substantial wrong or miscarriage has been thereby occasioned in the trial. r. 64.23 -- 395 of 641 -- Order 64 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 365 (3) If it appears that such substantial wrong or miscarriage affects part only of the matter in controversy or some or one only of the parties, the Court of Appeal may give final judgment as to part thereof or as to some or one only of the parties, and direct a new trial as to the other part only or as to the other party or parties. (4) Paragraphs (2) and (3) apply whether or not the proceeding was tried with a jury. (5) A new trial may be ordered on any question, whatever be the grounds for the new trial, without interfering with the decision upon any other question. (6) A new trial shall not be granted by reason of the ruling of a Judge— (a) that the stamp upon any document is sufficient; or (b) that the document does not require a stamp. (7) The Court of Appeal may in the order granting a new trial give all necessary directions for the further conduct of the proceeding. 64.24 Costs (1) The Court of Appeal may make such order for the whole or any part of the costs of an appeal as it thinks fit. (2) The Court of Appeal may in special circumstances make an order that security be given for the costs of an appeal. (3) An order under paragraph (2) may require the giving of security by payment into court to the Senior Master or in such other form as is satisfactory to the Prothonotary, without further specification. r. 64.24 -- 396 of 641 -- Order 64 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 366 64.25 Stay of execution Except so far as the Court of Appeal or a Judge otherwise orders— (a) an appeal shall not operate as a stay of execution or of proceedings under the decision appealed from; (b) no intermediate act or step shall be invalidated. 64.26 Jurisdiction and powers exercisable by a single Judge of Appeal (1) The jurisdiction and powers of the Court of Appeal may be exercised by a single Judge of Appeal in the following applications or proceedings— (a) for leave to a solicitor under Rule 20.03(4) to file a notice of ceasing to act under Rule 20.03(1); (b) for a direction under Rule 64.04(3) that notice of appeal or cross-appeal be served on any party to the proceeding or on a person not a party; (c) for leave under Rule 64.06(1) to amend a notice of appeal or cross-appeal; (d) for an order under Rule 64.14(3) as to the payment of costs upon discontinuance; (e) for an order under Rule 64.14(4) that an appeal or cross-appeal be not discontinued or as to costs or otherwise; (f) for leave to discontinue under Rule 64.15; (g) for an order under Rule 64.16(2) that an appeal not be taken to be abandoned; r. 64.25 -- 397 of 641 -- Order 64 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 367 (h) for an order under Rule 64.16(3) as to the payment of costs where an appeal is taken to be abandoned; * * * * * (k) for directions under Rule 64.19(2) when appeal books are not delivered in accordance with Rule 64.11; (l) for directions under Rule 64.19(3) for the conduct of a cross-appeal where an appeal is discontinued or is taken to be abandoned; (m) for an order under Rule 64.20(1) for an extension or abridgment of time; (n) for directions under Rule 64.21; (o) for any order by consent of all parties to an appeal, application, or other proceeding in the Court of Appeal. (2) A single Judge of Appeal may make any order or give any direction incidental or ancillary to the exercise by the Judge of the jurisdiction and powers of the Court of Appeal. 64.27 Jurisdiction and powers exercisable by two Judges of Appeal (1) Two Judges of Appeal may constitute, and may exercise all the jurisdiction and powers of, the Court of Appeal in the following classes of applications or appeals to or proceedings in the Court of Appeal— (a) applications to which Order 65 applies; (b) applications or proceedings described in Rule 64.26(1); r. 64.27 -- 398 of 641 -- Order 64 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 368 (c) any appeal where all the parties have before the hearing filed a consent to the hearing and determination of the appeal by two Judges of Appeal; (d) appeals from judgments or orders in interlocutory applications. (2) Two Judges of Appeal may make any order or give any direction incidental or ancillary to the exercise by them of the jurisdiction and powers of the Court of Appeal. 64.28 Exercise of powers by Master In the absence of the Registrar or at his or her request, any Master may exercise any power or authority conferred on the Registrar by or under this Order or Order 65. __________________ r. 64.28 -- 399 of 641 -- Order 65 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 369 ORDER 65 APPLICATIONS TO COURT OF APPEAL 65.01 Definition In this Order, unless the context or subject matter otherwise requires, "application" means any application other than an application by way of appeal or an application for a new trial or to set aside a judgment, order, verdict or finding. 65.02 Application by summons (1) An application to the Court of Appeal, whether on notice or not, shall be made by summons supported by affidavit. (2) The application is taken to be made when the summons is filed. (3) If an application is made on notice, notice of the application shall be given to all persons interested in accordance with Rule 65.04. 65.03 Expedition (1) Where it is satisfied that the delay caused by proceeding in accordance with Rule 65.02 would or might entail injustice, the Court of Appeal may make an order without notice to any party upon such terms as to costs or otherwise and subject to such undertaking, if any, as it thinks fit. (2) The Court of Appeal may set aside any order made under paragraph (1) on the application of any party affected. r. 65.01 -- 400 of 641 -- Order 65 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 370 65.04 Filing and service (1) The applicant shall file the affidavit in support of an application within three days after the filing of the summons. (2) Within three days after the filing of the summons, the applicant shall, if an application is made on notice, serve a sealed copy of the summons and a copy of the affidavit in support and of any exhibit on each person to whom notice of the application is to be given. (3) Within four days after the service of the summons and affidavit in support, the respondent shall file, and serve a copy of, any affidavit in answer and shall serve a copy of any exhibit. 65.05 Delivery of documents to Registrar At or about the time of service under Rule 65.04— (a) the applicant shall deliver to the Registrar for the use of the members of the Court of Appeal two copies of the summons and of the affidavit in support and, unless the Registrar otherwise directs, of the exhibits thereto; and (b) each respondent shall deliver to the Registrar for the use of the members of the Court of Appeal two copies of any affidavit in answer and, unless the Registrar otherwise directs, of the exhibits thereto. 65.06 Further copies At any time the Registrar may require the applicant or the respondent to deliver additional copies of any of the documents referred to in Rule 65.05. r. 65.04 -- 401 of 641 -- Order 65 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 371 65.07 Documents for inclusion On any application relating to an appeal or a proposed appeal, the applicant shall include as exhibits to an affidavit— (a) a copy of the judgment or order from which the appeal is or is proposed to be brought; (b) a copy of any reasons given for that judgment or order; and (c) a copy of the notice of appeal or proposed notice of appeal— or shall account in an affidavit for their absence as exhibits. 65.08 Preparation of documents In the preparation of documents for the purpose of an application, regard shall be had to any notes published by the Registrar for the guidance of applicants. 65.09 Time (1) The Court of Appeal may extend or abridge any time fixed by or under this Order. (2) The jurisdiction and powers of the Court of Appeal under this Rule may be exercised by a single Judge of Appeal. (3) The Registrar may with the consent of the applicant and each respondent who has been served with the summons alter the day for hearing named in the summons. r. 65.07 -- 402 of 641 -- Order 65 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 372 65.10 Procedure on application (1) Subject to this Rule, Order 46 shall with any necessary modification apply to an application to the Court of Appeal under this Order. (2) An application may be determined by the Court of Appeal without the attendance of, and without hearing, the applicant or any respondent provided that not less than three days before the day appointed for the hearing of the application the Registrar, at the direction of the Court, has notified all parties that attendance by them or on their behalf is not required. (3) If an application is determined under paragraph (2), the Court of Appeal may upon application under this paragraph by any party to the summons set aside or vary the order made under paragraph (2). (4) If an application under paragraph (3) is dismissed and costs are ordered against the party making that application, such costs may be ordered on an indemnity basis. __________________ r. 65.10 -- 403 of 641 -- Order 66 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 373 ORDER 66 ENFORCEMENT OF JUDGMENTS AND ORDERS 66.01 Definitions In this Order, unless the context or subject matter otherwise requires— "judgment" includes order; "judgment for the payment of money into court" includes a judgment for the payment of money to a Master or to the Prothonotary; "person bound" means a person against whom a judgment is entered or given or an order is made. 66.02 Payment of money (1) A judgment for the payment of money not within paragraph (2) may be enforced by one or more of the following means— (a) warrant of seizure and sale; (b) attachment of debts under Order 71; (c) attachment of earnings under Order 72; (d) charging order under Order 73; (e) appointment of a receiver under Order 74; and (f) where Rule 66.05 applies, and subject to Rule 66.10— (i) committal; and (ii) sequestration. r. 66.01 -- 404 of 641 -- Order 66 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 374 (2) A judgment for the payment of money into court may be enforced by one or more of the following means— (a) appointment of a receiver; and (b) where Rule 66.05 applies, and subject to Rule 66.10— (i) committal; and (ii) sequestration. (3) Paragraphs (1) and (2) do not affect any other means of enforcement of a judgment for the payment of money. (4) The Court may authorise or direct a Master or the Prothonotary or a party to enforce a judgment for the payment of money into court by one or more of the means referred to in paragraph (1). 66.03 Possession of land A judgment for possession of land may be enforced by one or more of the following means— (a) warrant of possession; and (b) where Rule 66.05 applies, and subject to Rule 66.10— (i) committal; and (ii) sequestration. 66.04 Delivery of goods (1) A judgment for the delivery of goods and a judgment for the delivery of goods or the payment of their assessed value may be enforced by one or more of the following means— (a) warrant of delivery; and r. 66.03 -- 405 of 641 -- Order 66 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 375 (b) where Rule 66.05 applies, and subject to Rule 66.10— (i) committal; and (ii) sequestration. (2) The warrant of delivery shall, as the judgment requires, be for— (a) the delivery of the goods; or (b) the delivery of the goods or recovery of their assessed value. (3) A warrant of delivery may include provision for enforcing the payment of money required to be paid by the judgment and money recoverable under section 107(1) of the Service and Execution of Process Act 1992 of the Commonwealth. (4) A judgment for the payment of the assessed value of goods may be enforced by the same means as any other judgment for the payment of money except a judgment for the payment of money into court. 66.05 Doing or abstaining from doing any act (1) This Rule applies where— (a) a judgment requires a person to do an act and the act is to be done within a time fixed in the judgment or by subsequent order, and the person refuses or neglects to do the act within that time; (b) a judgment requires a person to abstain from doing an act, and the person disobeys the judgment. (2) Where this Rule applies, a judgment may, subject to Rule 66.10, be enforced by one or more of the following means— (a) committal of the person bound; r. 66.05 -- 406 of 641 -- Order 66 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 376 (b) sequestration of the property of the person bound; and (c) where the person bound is a corporation, without limiting paragraph (2)(b)— (i) committal of any officer of the corporation; and (ii) sequestration of the property of any officer of the corporation. (3) Paragraph (2) has effect subject to the Imprisonment of Fraudulent Debtors Act 1958. 66.06 Attendance of natural person (1) This Rule applies where the Court by subpoena or otherwise makes an order in any proceeding for the attendance of a natural person— (a) for the purpose of giving evidence; (b) for the production of any document or thing; (c) to answer a charge of contempt; or (d) for any other purpose— and after service of the order the person defaults in attendance in accordance with the order. (2) In the circumstances referred to in paragraph (1) the Court may— (a) make an order for the issue of a warrant to the Sheriff or such other person as the Court may appoint for the arrest of the person in default and for his or her production before the Court or before an examiner or other person for the purpose of the proceeding and for his or her detention in custody in the meantime; and (b) order the person in default to pay any costs and expenses occasioned by the default. r. 66.06 -- 407 of 641 -- Order 66 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 377 66.07 Attendance of corporation (1) This Rule applies where— (a) the Court by subpoena or otherwise makes an order in any proceeding for the production by a corporation of any document or thing; and (b) after service of the order the corporation defaults in producing the document or thing in accordance with the order. (2) In the circumstances referred to in paragraph (1) the Court may— (a) make an order for the issue of a warrant to the Sheriff or such other person as the Court may appoint for the arrest of any officer of the corporation and for his or her production before the Court or before an examiner or other person for the purpose of the proceeding and for his or her detention in custody in the meantime; and (b) order the corporation to pay any costs and expenses occasioned by the default. 66.08 Attendance before another court etc. Rules 66.06 and 66.07 shall, with any necessary modification, apply where by or under any Act the Court has authority to compel by subpoena the attendance of a person for the purpose of giving evidence or producing any document or thing for evidence in any court or before any person having by law or by consent of parties authority to hear, receive and examine evidence. 66.09 Contempt Nothing in Rules 66.06 and 66.07 shall affect the power of the Court to punish for contempt. r. 66.07 -- 408 of 641 -- Order 66 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 378 66.10 Service before committal or sequestration (1) A judgment shall not be enforced by committal or sequestration unless— (a) a copy of the judgment is served personally on the person bound; and (b) if the judgment requires the person bound to do an act within a fixed time, the copy of the judgment is so served a reasonable time before that time expires. (2) Where the person bound is a corporation, the judgment shall not be enforced by committal of an officer of the corporation or by sequestration of the property of an officer of the corporation unless, in addition to service under paragraph (1) on the corporation— (a) a copy of the judgment is served personally on the officer; and (b) if the judgment requires the corporation to do an act within a fixed time, the copy of the judgment is so served a reasonable time before that time expires. (3) A copy of a judgment served under this Rule shall be indorsed with a notice, naming the person served, that the person served is liable to imprisonment or to sequestration of property if— (a) where the judgment requires the person bound to do an act within a fixed time, the person bound refuses or neglects to do the act within that time; or (b) where the judgment requires the person bound to abstain from doing an act, the person disobeys the judgment. r. 66.10 -- 409 of 641 -- Order 66 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 379 (4) Where a judgment requires the person bound to do an act and an order is made under Rule 59.03 fixing a time within which the act is to be done, a copy of the judgment, indorsed as required by paragraph (3)(a), and a copy of the order shall be served on that person a reasonable time before the expiry of that time. (5) A judgment requiring a person to do an act within a fixed time or a judgment requiring a person to abstain from doing an act may be enforced under Rule 66.05 notwithstanding that service has not been effected under this Rule if the person against whom the judgment is to be enforced has notice of the judgment— (a) by being present when the judgment was given; or (b) by being notified of the terms of the judgment whether by telephone, telegram or otherwise. (6) The Court may dispense with service under this Rule. 66.11 Substituted performance (1) Where a judgment requires the person bound to do an act and the person bound does not do the act, the Court may— (a) direct that the act be done by a person appointed by the Court; and (b) order the person bound to pay any costs and expenses occasioned by the default. r. 66.11 -- 410 of 641 -- Order 66 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 380 (2) Paragraph (1) does not affect— (a) the power of the Court under section 22 of the Act or section 60 of the Trustee Act 1958; (b) the power of the Court to punish for contempt. 66.12 Enforcement by or against non-party (1) A person not being a party who obtains a judgment or in whose favour a judgment is made may enforce the judgment by the same means as if that person were a party. (2) Where obedience to a judgment may be enforced against a person not a party, the judgment may be enforced against the person by the same means as if the person were a party. (3) Where obedience to a judgment may be enforced against a corporation not a party, an officer of the corporation shall be liable to the same processes of enforcement as if the corporation were a party. 66.13 Non-performance of condition A person entitled to a judgment subject to the fulfilment of a condition who fails to fulfil the condition shall be taken to have abandoned the benefit of the judgment, and, unless the Court otherwise orders, any other person interested may take any steps which are warranted by the judgment or which might have been taken if the judgment or order had not been given or made. 66.14 Matters occurring after judgment The Court may stay execution of a judgment, or make such order as the nature of the case requires, on the ground of matters occurring after judgment. r. 66.12 -- 411 of 641 -- Order 66 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 381 66.15 Order in aid of enforcement (1) The Court may make such order as it thinks fit in aid of the enforcement of a warrant of execution and for that purpose may make an order that any person, whether or not a party— (a) attend before the Court to be examined; (b) do or abstain from doing any act. (2) An application for an order under paragraph (1) may be made by the Sheriff or other person to whom a warrant of execution is directed. 66.16 Stay of execution The Court may stay execution of a judgment. __________________ r. 66.15 -- 412 of 641 -- Order 67 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 382 ORDER 67 DISCOVERY IN AID OF ENFORCEMENT 67.01 Definitions In this Order, unless the context or subject matter otherwise requires— "judgment" includes order; "the material questions" are— (i) whether any and, if so, what debts are owing to the person bound; (ii) whether the person bound has any and, if so, what other property or means of satisfying the judgment; and (iii) any questions concerning or in aid of the enforcement or satisfaction of the judgment specified in the order for examination or production. 67.02 Order for examination or production (1) The Court may, on application by a person entitled to enforce a judgment, order a person bound by the judgment to— (a) attend before the Court and be orally examined on the material questions; and (b) produce any document or thing in the possession, custody or power of the person bound relating to the material questions. (2) Where the Court makes an order under paragraph (1), it may order that the person attend to be examined before or produce the document or thing to a Master. r. 67.01 -- 413 of 641 -- Order 67 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 383 67.03 Corporation Where the person bound is a corporation, the Court may make an order that— (a) an officer or a former officer of the corporation attend before the Court and be orally examined on the material questions; and (b) an officer of the corporation produce any document or thing in the possession, custody or power of the corporation relating to the material questions. 67.04 Procedure (1) An application for an order under Rule 67.02 or 67.03 may be made without notice to the person bound by the judgment. (2) An order under Rule 67.02 or 67.03 shall be served personally on the person bound and on any other person ordered to attend or to produce any document or thing. 67.05 Conduct money Rule 42.05 applies in relation to the service of an order under Rule 67.02 or 67.03 as it does in relation to the service of a subpoena. 67.06 Record of examination The Judge or Master before whom an examination is conducted under Rule 67.02 or 67.03 shall take down, or cause to be taken down, in writing the statement made by the person examined at the examination. __________________ r. 67.03 -- 414 of 641 -- Order 68 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 384 ORDER 68 WARRANTS OF EXECUTION GENERALLY 68.01 Definitions In this Order, unless the context or subject matter otherwise requires— "judgment" includes order; "Sheriff" includes a person to whom a warrant of execution is directed; "warrant of execution" means a warrant of seizure and sale, a warrant of possession and a warrant of delivery. 68.02 Leave to issue warrant (1) Notwithstanding Order 66, a warrant of execution to enforce a judgment shall not be issued without the leave of the Court in the following cases— (a) where six years have elapsed since the judgment took effect; (b) where any change has taken place, whether by assignment or death or otherwise, in the identity of the persons entitled or liable to execution under the judgment; (c) where the judgment is against the assets of a deceased person coming to the hands of the deceased's executor or administrator after the date of the judgment, and it is sought to issue execution against assets of that description; (d) where under the judgment a person is entitled to enforce it subject to the fulfilment of a condition; r. 68.01 -- 415 of 641 -- Order 68 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 385 (e) where the warrant is against property in the hands of a receiver appointed by the Court or of a sequestrator; (f) where the judgment is for a sum in a currency not Australian dollars. (2) Paragraph (1) does not affect any provision of or under any Act requiring the leave of the Court before a judgment may be enforced. (3) An application for leave under paragraph (1) may be made without notice to any person, unless the Court otherwise orders. (4) The application shall be supported by evidence on affidavit showing— (a) where the judgment is for the payment of money, the amount, including any interest, due on the date of the application; (b) where paragraph (1)(a) applies, the reasons for the delay; (c) where paragraph (1)(b) applies, the change which has taken place; (d) where paragraph (1)(b), (1)(c) or (1)(d) applies, that a demand to satisfy the judgment has been made on the person liable to satisfy it and that he has not satisfied it; (e) that the applicant is entitled to proceed to execution on the judgment; and (f) that the person against whom execution is sought is liable to execution on the judgment. r. 68.02 -- 416 of 641 -- Order 68 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 386 68.03 Separate execution for costs A person entitled to enforce a judgment entered or given with costs may have execution to enforce the judgment and, when the costs become payable, have execution separately to enforce payment of the costs. 68.04 Issue of warrant of execution (1) A warrant of execution is issued when the warrant is sealed with the seal of the Court. (2) A warrant of execution shall bear the date of its issue. (3) A warrant of execution shall not be issued unless the person requesting it to be issued— (a) produces to the Prothonotary a form of the warrant; (b) files a copy; (c) where the warrant is to enforce a judgment for the payment of money, files an affidavit, sworn within 14 days before the request, stating— (i) the date of the judgment; (ii) the amount for which judgment was entered or given; (iii) the amount, including any interest accrued and any costs, due and payable in respect of the judgment at the date of swearing of the affidavit with particulars showing how that amount is calculated or made up; and r. 68.03 -- 417 of 641 -- Order 68 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 387 (iv) the daily amount of interest, if any, which, subject to any future payment under the judgment, will accrue after the date of swearing of the affidavit in respect of the judgment amount and costs. (4) In the case of a warrant of execution to enforce a judgment for the payment of money, the person to whom the warrant is directed shall, when executing the warrant, serve a copy of the affidavit required under paragraph (3)(c) and of any affidavit filed under Rule 10.03 of Chapter II on the person against whom the warrant is executed or leave it at the place where the warrant is executed. 68.05 Duration (1) A warrant of execution shall be valid for the purpose of execution for one year after the day it is issued. (2) Notwithstanding paragraph (1), the Court may from time to time by order extend the period of the validity of the warrant for the purpose of execution for not more than one year at any one time from the day on which it would otherwise expire. (3) An order under paragraph (2) shall not be made after the day of expiry of the warrant. (4) An application for an order under paragraph (2) may be made without notice to any person. (5) A copy of an order under paragraph (2) shall be delivered to the Sheriff by the party obtaining the order. r. 68.05 -- 418 of 641 -- Order 68 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 388 (6) The priority of a warrant of execution in respect of which an order under paragraph (2) has been made shall be determined by reference to the date on which the warrant was originally delivered to the Sheriff. 68.06 Costs of prior execution The amount for which a warrant of execution may be issued shall, unless the Court otherwise orders, include— (a) the costs, fees and expenses incurred in respect of any prior warrant of execution on the same judgment, whether the prior warrant was or was not productive; and (b) money recoverable under section 107(1) of the Service and Execution of Process Act 1992 of the Commonwealth. 68.07 Provision for enforcing payment of money Order 69 shall, with any necessary modification, apply to a warrant of execution which includes a provision for enforcing the payment of money required to be paid by the judgment which is to be enforced by the warrant. 68.08 Form of warrant of execution A warrant of execution shall be in Form 53B, 68A, 68B or 68C, whichever is appropriate. __________________ r. 68.06 -- 419 of 641 -- Order 69 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 389 ORDER 69 WARRANT OF SEIZURE AND SALE 69.01 Definitions In this Order, unless the context or subject matter otherwise requires— "creditor" means a person for whom a warrant is issued; "debtor" means a person against whose property a warrant is to be executed; "judgment" includes order; "Sheriff" includes a person to whom a warrant is directed; "warrant" means a warrant of seizure and sale. 69.02 New enforcement process The process of enforcement under this Order shall be used instead of the process of enforcement by writ of fieri facias. 69.03 Two or more warrants Unless the Court otherwise orders, a warrant shall not be issued while another warrant issued in respect of the same judgment is in force except for the purpose of Rule 68.03. 69.04 Order of sale (1) Subject to paragraphs (2) and (3), where it appears to the Sheriff that property subject to levy under a warrant is more than sufficient to satisfy the amount to be levied, he shall take or sell so much of the property as appears to the Sheriff to be sufficient. r. 69.01 -- 420 of 641 -- Order 69 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 390 (2) Subject to paragraph (3), the Sheriff shall take or sell property— (a) in such order as seems to the Sheriff best for the prompt execution of the warrant without undue expense; (b) subject to paragraph (2)(a), in such order as the debtor directs; and (c) subject to paragraph (2)(a) and (b), in such order as seems to the Sheriff best for minimising hardship to the debtor and other persons. (3) Land shall not be put up for sale under the warrant until all other property liable to sale under the warrant has been sold unless the debtor so requests. (4) The Court may order that property subject to levy under the warrant be taken or sold otherwise than in accordance with the preceding paragraphs. 69.05 Time, place and mode of sale (1) The Sheriff shall put up for sale all property liable to sale under a warrant— (a) as early as may be having regard to the interests of the parties; and (b) at the place which seems to the Sheriff best for a beneficial sale of the property. (2) In the case of property, other than land, which is liable to sale under a warrant, the Sheriff may as the Sheriff thinks fit sell the property either by private contract or public auction. (3) Rule 69.06 shall not apply to a sale by private contract made in accordance with paragraph (2). r. 69.05 -- 421 of 641 -- Order 69 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 391 69.06 Advertisement of sale (1) Before putting property up for sale under a warrant the Sheriff shall advertise the sale by giving notice of the time and place of sale and of particulars of the property in the manner which seems to the Sheriff best to give publicity to the sale. (2) The Sheriff shall not advertise the sale of any land until the creditor has satisfied the Sheriff by such means as the Sheriff may reasonably require that— (a) in the case of land under the operation of the Transfer of Land Act 1958, a copy of the warrant has been served on the Registrar of Titles and that a memorandum of that service has been recorded in the Register kept under that Act; (b) in the case of other land, a copy of the warrant has been left with the Registrar- General. (3) An advertisement relating to the intended sale of land by the Sheriff shall be in Form 69A and include— (a) a concise description of the land, including its location, stated in terms calculated to enable interested persons to identify it; (b) a statement in general terms of the improvements, if any, believed by the Sheriff to be on the land; (c) a statement of the last known address of the debtor; and r. 69.06 -- 422 of 641 -- Order 69 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 392 (d) in the case of land under the operation of the Transfer of Land Act 1958, a statement of the interest, if any, of the debtor according to the Register kept under that Act and of the recordings in that Register which affect or may affect the land as at the date of service upon the Registrar of Titles of the warrant. (4) The creditor shall serve personally on the debtor a copy of the advertisement not less than 14 days before the date of the intended sale. (5) The Court may dispense with service under paragraph (4). (6) Not less than three days or such lesser period as the Sheriff may allow before the date advertised for the sale the creditor shall— (a) file an affidavit of service of a copy of the advertisement or, where the Court makes an order for substituted service of the advertisement, an affidavit showing due compliance with the order; (b) deliver to the Sheriff— (i) where a copy of the advertisement is served on the debtor, a copy of the affidavit of service; (ii) where the Court makes an order dispensing with service of a copy of the advertisement, a copy of the order; (iii) where the Court makes an order for substituted service of the advertisement, a copy of the order and of the affidavit showing due compliance. r. 69.06 -- 423 of 641 -- Order 69 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 393 69.07 Notional possession of goods Notwithstanding that the Sheriff leaves land on which goods have been seized under a warrant, the Sheriff shall be taken to remain in possession of the goods if the Sheriff leaves in a prominent position on or about the land on which the goods were seized or upon the goods seized a notice of the seizure listing the items seized. __________________ r. 69.07 -- 424 of 641 -- Order 70 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 394 ORDER 70 WARRANT OF POSSESSION 70.01 Payment of money A warrant of possession to enforce a judgment for the possession of land may include provision for enforcing the payment of money required to be paid by the judgment and money recoverable under the Service and Execution of Process Act 1992 of the Commonwealth. 70.02 Removal of goods on warrant of possession On the execution of a warrant of possession the Sheriff need not remove any of the goods found on the land. __________________ r. 70.01 -- 425 of 641 -- Order 71 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 395 ORDER 71 ATTACHMENT OF DEBTS 71.01 Definitions and application (1) In this Order, unless the context or subject matter otherwise requires— "co-operative" means a body registered or deemed to be registered under the Co- operatives Act 1996 as a co-operative; "garnishee" means a person from whom a judgment creditor claims— (a) that a debt is due or accruing to the judgment debtor on the day an order for the filing and service of a garnishee summons is made; or (b) that a debt will or is likely to become due or accrue to the judgment debtor between the day an order for the filing and service of a garnishee summons is made and the day for hearing named in the summons; "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 otherwise than into court. (2) This Order shall not apply to debts being earnings within the meaning of Order 72 due or accruing to the judgment debtor. r. 71.01 -- 426 of 641 -- Order 71 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 396 71.02 What debts attachable A debt may be attached under this Order if the debt— (a) is due or accruing to the judgment debtor from the garnishee on the day an order for the filing and service of a garnishee summons is made; or (b) becomes due or accrues to the judgment debtor from the garnishee between the day an order for the filing and service of a garnishee summons is made and the day for hearing named in the summons. 71.03 Bank account (1) An amount standing to the credit of a judgment debtor in an account in a bank or a co-operative shall, for the purpose of this Order, be a debt due or accruing to the judgment debtor, notwithstanding that any of the following conditions applicable to the account has not been satisfied— (a) that a demand or notice is required before money is withdrawn; (b) that a personal application must be made before money is withdrawn; (c) that a deposit book must be produced before money is withdrawn; (d) that a receipt for money deposited in the account must be produced before money is withdrawn. Note: "bank" is defined in Rule 1.13(1). r. 71.02 -- 427 of 641 -- Order 71 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 397 (2) Paragraph (1) shall apply, with any necessary modification, to an amount which is placed to the credit of a judgment debtor in an account in a bank or a co-operative between the day an order for the filing and service of a garnishee summons is made and the day for hearing named in the summons. 71.04 Filing and service of garnishee summons (1) Subject to any Act, the Court may, on the application of a judgment creditor, order that a garnishee summons be filed and served on the garnishee. (2) A judgment creditor may apply for an order under paragraph (1) without notice to any person. (3) In making an order under paragraph (1), the Court shall fix an amount to be specified in the garnishee summons for the purpose of Rule 71.06 having regard to— (a) the amount due under the judgment on the date of the order and any money then recoverable under section 107(1) of the Service and Execution of Process Act 1992 of the Commonwealth; and (b) the amount of interest accrued and accruing on the judgment debt; and (c) the costs of the garnishee proceedings. (4) Where an order is made under paragraph (1) in respect of a debt not yet due or accruing to the judgment debtor from the garnishee, the day for hearing named in the summons shall be not more than 30 days after the date of the order. r. 71.04 -- 428 of 641 -- Order 71 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 398 71.05 Evidence on application for garnishee summons (1) An order shall not be made under Rule 71.04 unless it is shown by affidavit— (a) that the judgment is unsatisfied, either wholly or to a stated extent; and (b) that— (i) a debt is due or accruing to the judgment debtor from the garnishee; (ii) a debt will or is likely to become due or accrue to the judgment debtor from the garnishee— as the case requires. (2) Where an application is made for an order under Rule 71.04 in respect of a debt within paragraph (1)(b)(ii) of this Rule, the affidavit shall— (a) give particulars identifying the transaction between the judgment debtor and the garnishee under which the debt will or is likely to become due or accrue; and (b) state the date or likely date it will become due or accrue. (3) An affidavit under this Rule may contain statements of fact based on information and belief if the grounds are set out. 71.06 Garnishee summons (1) A garnishee summons shall identify each debt in respect of which it is filed and as the case requires— (a) state— (i) where the debt is due or accruing to the judgment debtor from the garnishee, that upon service of the summons the debt shall be attached and bound in the r. 71.05 -- 429 of 641 -- Order 71 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 399 hands of the garnishee to the extent of the amount specified in the summons; (ii) where the debt is not yet due or accruing to the judgment debtor from the garnishee, that in the event that the debt becomes due or accrues before the day for hearing named in the summons the debt shall be attached and bound in the hands of the garnishee to the extent of the amount specified in the summons when it becomes due or accrues; and (b) state that on the day for hearing named in the summons the judgment creditor will apply for an order that the garnishee pay to the judgment creditor the debt attached to the extent of the amount specified in the summons. (2) A garnishee summons shall be in Form 71A. 71.07 Service of summons (1) Subject to paragraph (2), the judgment creditor shall, not less than seven days before the day for hearing named in the garnishee summons, serve the summons and a copy of each affidavit used on the application for an order under Rule 71.04 on the garnishee personally and on the judgment debtor. (2) A garnishee summons shall not be served on a garnishee out of Victoria. 71.08 What debts attached, when and to what extent (1) A debt due or accruing to the judgment debtor from the garnishee in respect of which an order for the filing and service of a garnishee summons is made shall, upon service of the summons on the garnishee, be attached and bound in the hands of the garnishee to the extent of the amount specified in the summons. r. 71.07 -- 430 of 641 -- Order 71 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 400 (2) A debt not yet due or accruing to the judgment debtor from the garnishee in respect of which an order for the filing and service of a garnishee summons is made shall, in the event that the debt becomes due or accrues before the day for hearing named in the summons, be attached and bound in the hands of the garnishee to the extent of the amount specified in the summons when it becomes due or accrues. (3) Notwithstanding paragraphs (1) and (2), where, after service of a garnishee summons on the garnishee, the garnishee acts with reasonable diligence for the purpose of giving effect to the attachment but nevertheless pays to the judgment debtor the whole or any part of the debt attached or otherwise deals with the debt attached so as to satisfy, as between the garnishee and the judgment debtor, the whole or any part of the debt attached, the Court may order that for the purpose of the garnishee application the debt attached be reduced to the extent of the payment or satisfaction. 71.09 Payment to judgment creditor (1) Subject to Rules 71.10 and 71.11, the Court, on the hearing of a garnishee summons, may order the garnishee to pay to the judgment creditor— (a) the debt attached to the extent specified in the garnishee summons; or (b) so much of the debt attached to the extent so specified as is required to satisfy the judgment in respect of which the summons is filed and served together with interest, any money recoverable under section 107(1) of the Service and Execution of Process Act 1992 of the Commonwealth and such costs of the application as may be specified in the order. r. 71.09 -- 431 of 641 -- Order 71 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 401 (2) Where on the hearing of a garnishee summons the garnishee does not dispute the debt, or where the garnishee does not attend on the hearing, the Court may make an order under paragraph (1) upon the evidence in support of the application under Rule 71.04 for an order that the garnishee summons be filed and served on the garnishee. (3) An order under paragraph (1) may be enforced in the same manner as any other order for the payment of money. (4) An order under paragraph (1) shall be in Form 71B or 71C as the case requires. 71.10 Dispute of liability by garnishee If on the hearing of the garnishee summons the garnishee disputes liability to pay the debt attached, the Court may— (a) determine the question of liability; or (b) give directions for the trial of the question. 71.11 Claim by other person Where it appears to the Court that any person other than the judgment debtor may be entitled to the debt attached or to a charge or lien upon it, the Court may order that notice of the application be given to that person and then determine the entitlement or give directions for its determination. 71.12 Discharge of garnishee Any payment made by a garnishee in compliance with, and any execution levied against a garnishee under, an order made under Rule 71.09 shall be a valid discharge of the garnishee's liability to the judgment debtor to the extent of the amount paid or levied notwithstanding that subsequently— (a) the garnishee proceedings are set aside; or r. 71.10 -- 432 of 641 -- Order 71 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 402 (b) the judgment from which they arose is reversed or varied. 71.13 Money in court (1) Where money is standing to the credit of the judgment debtor in court, the Court, on the application of the judgment creditor made by summons, may order that the money or so much thereof as is sufficient to satisfy the judgment sought to be enforced together with interest accrued on the judgment debt and the costs of the application be paid to the judgment creditor. (2) The summons and a copy of any affidavit in support shall be served on the judgment debtor not less than seven days before the day for hearing named in the summons. (3) Paragraph (1) is subject to Rule 15.09. 71.14 Costs Unless the Court otherwise orders, the costs of the judgment creditor of a garnishee application under this Order shall, be retained by the judgment creditor out of the money recovered by the judgment creditor from the garnishee in priority to the debt under the judgment in respect of which the application arose and interest accrued thereon and any money recoverable under section 107(1) of the Service and Execution of Process Act 1992 of the Commonwealth. __________________ r. 71.14 -- 433 of 641 -- Order 72 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 403 ORDER 72 ATTACHMENT OF EARNINGS 72.01 Definitions In this Order, unless the context or subject matter otherwise requires— "attachment of earnings order" means an order under Rule 72.03 or such an order as varied from time to time; "earnings" in relation to a judgment debtor means any amounts payable to the judgment debtor— (a) by way of wages or salary, including any fees, bonus, commission, overtime pay or other emoluments payable in addition to wages or salary; or (b) by way of pension, including— (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 employment— but does not include any pension payable to the judgment debtor under the Social Security Act 1991 of the Commonwealth, or the Veterans' Entitlements Act 1986 of the Commonwealth; r. 72.01 -- 434 of 641 -- Order 72 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 404 "employer" in relation to a judgment debtor means a person (including the Crown in right of the State of Victoria, a Minister of the Crown in right of the State of Victoria, and any statutory authority representing the Crown in right of the State of Victoria) by whom, as a principal and not as a servant or agent, earnings are payable or are likely to become payable to the judgment debtor; "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 otherwise than into court; "net earnings" in relation to a pay-day means the amount of the earnings becoming payable by a particular employer on that pay-day after the deduction from those earnings of any sum deducted from those earnings under Division 2 of Part VI of the Income Tax Assessment Act 1936 of the Commonwealth; "normal deduction" in relation to an attachment of earnings order and in relation to a pay-day means an amount representing a payment at the normal deduction rate specified in the order in respect of the period between that pay-day and either— (a) the last preceding pay-day; or (b) where there is no last preceding pay- day, the date on which the employer became, or last became, the judgment debtor's employer; r. 72.01 -- 435 of 641 -- Order 72 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 405 "pay-day" means an occasion on which earnings to which the attachment of earnings order relates become payable; "protected earnings" in relation to an attachment of earnings order and in relation to a pay-day means the amount representing a payment at the protected earnings rate specified in the order in respect of the period between that pay-day and either— (a) the last preceding pay-day; or (b) where there is no last preceding pay- day, the date on which the employer became, or last became, the judgment debtor's employer. 72.02 Application for attachment of earnings order (1) A judgment creditor may apply by summons to the Court for an attachment of earnings order. (2) The summons shall be supported by an affidavit, which may contain statements of fact based on information and belief if the grounds are set out. (3) The summons shall be in Form 72A and the affidavit shall be in Form 72B. (4) The summons, a copy of the affidavit and a notice in Form 72C as to the property and assets of the judgment debtor and the debts, liabilities and other financial obligations of the judgment debtor shall be served on the judgment debtor not less than 14 days before the day for hearing named in the summons. (5) The Court shall not make an attachment of earnings order to secure the payment of money payable under a judgment where a warrant has been issued in that case committing the judgment debtor to prison under the Imprisonment of Fraudulent Debtors Act 1958 and has not been r. 72.02 -- 436 of 641 -- Order 72 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 406 executed, but in such case the Court may discharge the warrant with a view to making an attachment of earnings order instead. 72.03 Making of order Where the Court is satisfied that the judgment debtor is a person to whom earnings are payable or are likely to become payable and— (a) that at the time when the application was made there was due and unpaid in respect of the judgment which the judgment creditor is entitled to enforce an amount of not less than $20; or (b) that the judgment debtor has persistently failed to comply with an order with respect to the judgment— the Court may order a person who appears to the Court to be the judgment debtor's employer in respect of those earnings or part of those earnings to make out of those earnings or that part of those earnings payments in accordance with Rule 72.07. 72.04 Attendance of or information about judgment debtor (1) In relation to an attachment of earnings order or any application for such an order the Court may order that— (a) the judgment debtor attend before the Court at a time specified in the order to be examined concerning the judgment debtor's means and ability to comply with the judgment; (b) the judgment debtor state to the Court or furnish to the Court within the time fixed by the Court a statement signed by the judgment debtor setting forth— r. 72.03 -- 437 of 641 -- Order 72 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 407 (i) the name and address of his or her employer or, if he or she has more employers than one, of each of his or her employers; (ii) particulars as to the judgment debtor's earnings; (iii) such other particulars as the Court thinks necessary to enable the enforcement of the order; or (c) any person who appears to the Court to be indebted to the judgment debtor or to be the employer of the judgment debtor give to the Court a statement signed by that person or on that person's behalf containing such particulars as are specified in the direction of that person's indebtedness to the judgment debtor that became payable by that person during a specified period. (2) A document purporting to be a statement referred to in paragraph (1) shall be received in evidence in any proceedings for the enforcement of the order. (3) Where on an application for an attachment of earnings order the Court is satisfied— (a) that the judgment debtor has been served with a copy of the summons; (b) that the judgment debtor has had a reasonable opportunity of attending the hearing; (c) that the judgment debtor is employed by an ascertained employer; and (d) as to the earnings of the judgment debtor— the Court may make an attachment of earnings order in the absence of the judgment debtor. r. 72.04 -- 438 of 641 -- Order 72 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 408 (4) For the purpose of this Rule the Court may act upon evidence by or on behalf of the judgment debtor's employer or by the judgment debtor's spouse or any statement or information furnished under paragraph (1). (5) Where the Court considers an application in the absence of the judgment debtor or his or her spouse and the Court has before it sufficient evidence in the opinion of the Court upon which to specify a protected earnings rate and a normal deduction rate, the Court shall so specify those rates, but where the Court does not have sufficient evidence, the Court may without specifying such rates make an order requiring the payment by the judgment debtor's employer to the judgment creditor of such amount as the Court thinks reasonable having regard to the circumstances of the judgment debtor so far as they are known to the Court. (6) Nothing in paragraph (1)(a) shall affect any other mode of enforcing the attendance of the judgment debtor before the Court. (7) An application for an order under paragraph (1)— (a) shall be made by summons in Form 72D; and (b) shall be supported by an affidavit in Form 72E. (8) An order under paragraph (1) shall be in Form 72F or 72G, whichever is appropriate. 72.05 Contents of order (1) An attachment of earnings order shall specify either generally or in relation to any particular pay-day or pay-days the normal deduction rate, that is to say, the rate at which the Court considers it to be reasonable that the earnings of the judgment debtor should be applied in satisfying r. 72.05 -- 439 of 641 -- Order 72 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 409 the judgment to which the order relates but not exceeding a rate that appears to the Court to be necessary for the purpose of— (a) securing payment of the amount due and unpaid under the judgment; and (b) securing payment within a reasonable time of any costs ordered by the Court to be paid by the judgment debtor. (2) An attachment of earnings order may specify a higher normal deduction rate to apply for a specified number of pay-days after the order comes into force and a lower normal deduction rate to apply to subsequent pay-days. (3) An attachment of earnings order shall also specify the protected earnings rate, that is to say, the rate below which, having regard to the resources and needs of the judgment debtor and of any other person for whom he or she must or reasonably may provide, the Court considers it to be reasonable that the earnings to which the order relates should not be reduced by a payment under the order. (4) Unless the Court— (a) has received from the judgment debtor a completed form pursuant to the notice in Form 72C given under Rule 72.02(4) as to the property and assets of the judgment debtor and the debts, liabilities and other financial obligations of the judgment debtor; or (b) has examined the judgment debtor as to those matters— the Court shall not under paragraph (3) specify as the protected earnings rate a rate that is less than 80 per cent of the net earnings of the judgment debtor. r. 72.05 -- 440 of 641 -- Order 72 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 410 (5) An attachment of earnings order shall— (a) provide that the payments under the order are to be made to the person specified in the order; (b) contain such particulars as the Court thinks necessary for enabling the person to whom the order is directed to identify the judgment debtor. (6) An attachment of earnings order shall be in Form 72H. 72.06 Service of order (1) An attachment of earnings order shall be served on the judgment debtor and on the person to whom the order is directed. (2) There shall also be served on the person to whom an attachment of earnings order is directed— (a) a notice informing the person of the effect of the order and of that person's obligations under this Order; and (b) two forms of notice that the judgment debtor is not in that person's employ. (3) A notice under paragraph (2)(a) shall be in Form 72J and a notice under paragraph (2)(b) shall be in Form 72K. (4) The order shall not come into force until the expiration of seven days after the day on which the order is served on the person to whom the order is directed. 72.07 Employer to make payments (1) An employer to whom an attachment of earnings order is directed shall, in respect of each pay-day whilst the order is in force, if the net earnings of the judgment debtor exceed the sum of— r. 72.06 -- 441 of 641 -- Order 72 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 411 (a) the protected earnings of the judgment debtor; and (b) so much of any amount by which the net earnings that became payable on any previous pay-day were less than the protected earnings in relation to that pay-day as has not been made good on any other previous pay-day— pay, so far as that excess permits, to the person specified in the order the normal deduction in relation to that pay-day and so much of the normal deduction in relation to any previous pay-day as was not paid on that pay-day and has not been paid on any other previous pay-day. (2) A payment made by an employer under paragraph (1) shall be a valid discharge to the employer as against the judgment debtor to the extent of the amount paid. (3) An employer making payments in accordance with an attachment of earnings order— (a) is entitled to deduct from the earnings of the judgment debtor in addition to any other amount an allowance of $3 in respect of each payment towards the clerical and administrative costs of making payments under the order; and (b) shall give to the judgment debtor notice of the amount deducted. 72.08 Attachment of earnings in place of other orders Where an application is made to the Court to enforce a judgment for the payment of money otherwise than into Court, the Court may, instead of making any other order, make an attachment of earnings order. r. 72.08 -- 442 of 641 -- Order 72 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 412 72.09 Execution after attachment of earnings Unless the Court otherwise orders, where an attachment of earnings order is in force— (a) no warrant of execution shall issue; and (b) no order shall be made for the enforcement of the judgment to which the attachment of earnings order relates. 72.10 Discharge or variation of order (1) Where an attachment of earnings order is in force the Court may, on the application of the judgment creditor or the judgment debtor, discharge, suspend or vary the order. (2) An order suspending or varying an attachment of earnings order shall be served on the respondent to the application and the person to whom the attachment of earnings order is directed. (3) An order suspending or varying an attachment of earnings order shall not come into force until the expiration of seven days after the day on which the order is served on the person to whom it is directed. 72.11 Cessation of attachment of earnings order (1) An attachment of earnings order shall cease to have effect— (a) upon being discharged under Rule 72.10; or (b) unless the Court otherwise orders, upon the making of any other order for the recovery of the moneys owing under the judgment in relation to which the attachment of earnings order was made. (2) Where an attachment of earnings order ceases to have effect, the Prothonotary shall forthwith give notice accordingly to the person to whom the order was directed. r. 72.09 -- 443 of 641 -- Order 72 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 413 (3) A notice under paragraph (2) shall be in Form 72L. (4) Where an attachment of earnings order ceases to have effect, the person to whom the order is directed shall not incur any liability in consequence of that person treating the order as still in force at any time before the expiration of seven days after the day on which the notice required by paragraph (2) or a copy of the order discharging the attachment of earnings order, as the case may be, is served on that person. 72.12 Two or more orders in force Where earnings become payable to a judgment debtor and there are in force two or more attachment of earnings orders, whether made under these Rules or otherwise, in relation to those earnings, the person to whom the orders are directed— (a) shall comply with those orders according to the respective dates on which they took effect and shall disregard any order until the earlier order has been complied with; and (b) shall comply with any order as if the earnings to which the order relates were the residue of the earnings of the judgment debtor after the making of any payment under an earlier order. 72.13 When varied order taken to be made For the purpose of Rule 72.12 an attachment of earnings order which has been varied under Rule 72.10 shall be taken to have been made as so varied on the day upon which the attachment of earnings order was made. r. 72.12 -- 444 of 641 -- Order 72 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 414 72.14 Notice to judgment debtor of payments (1) A person who makes a payment in compliance with an attachment of earnings order shall give to the judgment debtor a notice specifying the particulars of that payment. (2) Where a person served with an attachment of earnings order directed to that person is not the employer of the judgment debtor at the time of service of the order, that person shall, forthwith after service of the order, give notice in writing accordingly to the Prothonotary. (3) Where a person served with an attachment of earnings order directed to that person is the employer of the judgment debtor at the time of service of the order but ceases to be the judgment debtor's employer at any time thereafter, that person shall, forthwith after ceasing to be the judgment debtor's employer, give notice in writing accordingly to the Prothonotary. 72.15 Determination of earnings (1) The Court shall, on the application of the person to whom an attachment of earnings order is directed, determine whether payments to the judgment debtor of a particular class or description specified in the application are earnings for the purpose of that order. (2) A person to whom an attachment of earnings order is directed who makes an application under paragraph (1) shall not incur any liability for failing to comply with the order with respect to any payments of the class or description specified in the application that are made by that person to the judgment debtor while the application, or any appeal from an order made on the application, is pending. r. 72.14 -- 445 of 641 -- Order 72 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 415 (3) Paragraph (2) shall not apply in respect of any payment made after an application is withdrawn or an appeal from an order made on the application is abandoned. 72.16 Service An order or document that is required or permitted to be served on a person under this Order may be served on that person— (a) personally; (b) by delivering a copy at the usual or last known place of residence or business of that person to some person who apparently resides or is employed there and is apparently over the age of 16 years; or (c) by sending a copy to the person at the person's usual or last known place of residence or business by registered post. __________________ r. 72.16 -- 446 of 641 -- Order 73 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 416 ORDER 73 CHARGING ORDERS AND STOP ORDERS AND NOTICES 73.01 Definitions In this Order, unless the context or subject matter otherwise requires— "charging order" means an order made under Rule 73.02; "corporation" includes a body registered or deemed to be registered under the Co- operatives Act 1996 as a co-operative; "funds" or "funds in court" means— (a) any money, any stock issued by or any funds of or annuity granted by any government; or (b) any stock of any corporation standing or to be placed to the credit of an account in the books of the Court; "judgment" means a judgment or order for the payment of an ascertained sum of money otherwise than into court; "judgment creditor" means a person entitled to enforce a judgment; "judgment debt" means the sum due under a judgment and includes the amount of any interest; "judgment debtor" means a person against whom a judgment may be enforced; r. 73.01 -- 447 of 641 -- Order 73 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 417 "securities" means— (a) (i) any stock issued by or any funds of or annuity granted by the Commonwealth of Australia or by any State or Territory of the Commonwealth; and (ii) any stock of any corporation registered or formed under any general Act of the Commonwealth of Australia or under any general Act of any State or Territory of the Commonwealth; and (b) any dividend or interest payable on such stock; "stock" includes shares, and any debenture, debenture stock, bond, note or other security. 73.02 Order charging securities For the purpose of securing the payment of a judgment debt the Court may by order impose a charge on the beneficial interest of the judgment debtor in any securities. 73.03 Filing and service of charging summons (1) On the application of a judgment creditor, the Court may order that a charging summons be filed and served. (2) A judgment creditor may apply for an order under paragraph (1) without notice to any person. 73.04 Evidence on application for charging summons (1) An application for an order under Rule 73.03(1) shall be supported by an affidavit— (a) stating that the judgment is unsatisfied, either wholly or to a stated extent; r. 73.02 -- 448 of 641 -- Order 73 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 418 (b) identifying the securities in respect of which the order is sought and stating in whose name they stand; and (c) stating that the judgment debtor has a beneficial interest in the securities and describing that interest. (2) An affidavit under this Rule may contain statements of fact based on information and belief if the grounds are set out. 73.05 Charging summons (1) A charging summons shall identify the securities in respect of which it is filed and state that— (a) upon service of the summons on the government or corporation to which it is addressed, the government or corporation, as the case may be, shall not except by order of the Court— (i) cause or permit any transfer of any of the securities to be made; or (ii) pay to any person any dividend or interest thereon; (b) upon service of the summons on the judgment debtor, unless the Court otherwise orders, no disposition by the judgment debtor of the judgment debtor's interest in any of the securities made before the application for the charging order is heard by the Court shall be valid as against the judgment creditor. (2) A charging summons shall be in Form 73A. r. 73.05 -- 449 of 641 -- Order 73 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 419 73.06 Service of summons The judgment creditor shall, not less than seven days before the day for hearing named in the charging summons, serve on the judgment debtor and personally on the government or corporation the summons and a copy of each affidavit used on the application for an order under Rule 73.03(1). 73.07 Effect of service of summons (1) Where without the authority of the Court a government or corporation upon which a charging summons has been served— (a) causes or permits any of the securities to which the summons relates to be transferred; or (b) pays to any person any dividend or interest thereon— the government or corporation, as the case may be, shall be liable to pay to the judgment creditor an amount equal to the value to the judgment debtor of the securities transferred or of the dividend or interest paid, as the case may be, or so much thereof as is sufficient to satisfy the judgment. (2) No disposition by the judgment debtor of the judgment debtor's interest in any of the securities to which a charging summons relates made after the service of it on the judgment debtor and before the application for the charging order is heard shall be valid as against the judgment creditor, unless the Court otherwise orders. 73.08 Order on summons hearing (1) On the hearing of a charging summons, the Court may make a charging order with respect to securities to which the summons relates. r. 73.06 -- 450 of 641 -- Order 73 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 420 (2) If the judgment debtor does not attend on the hearing of the charging summons or, if attending, does not dispute the evidence in support of the application under Rule 73.03(1), the Court may make a charging order upon that evidence. 73.09 Effect and enforcement of charge A charge imposed by a charging order shall have the same effect and give the judgment creditor the same remedies for enforcing it as if it were a valid charge effectively made by the judgment debtor. 73.10 Variation or discharge of order The Court may by order at any time— (a) vary the effect under Rule 73.07 of service of a charging summons; (b) vary or discharge a charging order. 73.11 Order charging funds in court (1) For the purpose of securing the payment of a judgment debt, the Court may by order impose a charge on the beneficial interest of the judgment debtor in any funds in court. (2) Rules 73.03 to 73.08 and Rule 73.10 shall apply, with any necessary modification, to an application for an order under paragraph (1). (3) The judgment creditor shall, forthwith upon the making of an order that a summons for an order under paragraph (1) be filed and served, lodge a copy of the summons and of each affidavit used on the application for the order with the Prothonotary, Master or other officer of the Court by whom the funds in court are held. (4) Paragraph (1) is subject to Rule 15.09. r. 73.09 -- 451 of 641 -- Order 73 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 421 73.12 Stop order for funds in court (1) The Court may make an order that funds in court, or any part thereof, or the income thereon, shall not be transferred, sold, delivered out, paid or otherwise dealt with unless notice is first given to the person applying for the order. (2) An order may be made under paragraph (1) on the application of— (a) any person who has a mortgage or charge on the interest of any person in the funds in court; (b) any person to whom that interest has been assigned; or (c) any person who is a judgment creditor of the person entitled to that interest. (3) The application shall be made— (a) by summons in the proceeding in which the funds are in court; or (b) if there is no proceeding, by originating motion. (4) The summons or originating motion and a copy of any affidavit in support shall be served on every person who has an interest in the funds in court which may be affected by the order sought. (5) On an application under this Rule, the Court may make such order as it thinks fit for the costs and expenses of the applicant and of any party to the application or other person against whom an order is sought. r. 73.12 -- 452 of 641 -- Order 73 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 422 73.13 Stop notice on corporation stock not in court (1) In this Rule and the following Rules of this Order "corporation" means any corporation registered or formed under any general Act of the Commonwealth of Australia or under any general Act of any State or Territory of the Commonwealth. (2) Any person (in this and the following Rules called "the claimant") claiming a beneficial interest in any stock of a corporation, other than stock in court, who desires to be notified of any proposed transfer of that stock or payment of any dividend or interest thereon may give notice of that desire to the corporation by— (a) filing— (i) an affidavit in Form 73B identifying the stock in question and describing the person's interest therein and identifying any document under which it arises; and (ii) a notice in Form 73C, signed by the deponent and addressed to the corporation; and (b) serving a sealed copy of the affidavit and of the notice on the corporation. (3) The affidavit shall be indorsed with a note stating the address to which any notice under Rule 73.14 is to be sent and, subject to paragraph (4), that address shall for the purpose of that Rule be the address for service of the claimant. (4) The claimant may change the claimant's address for service for the purpose of Rule 73.14 by filing and serving on the corporation notice of the change. r. 73.13 -- 453 of 641 -- Order 73 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 423 73.14 Effect of stop notice Where an affidavit and a notice are served on a corporation under Rule 73.13, and during the time the notice is in force, the corporation is requested to register a transfer of the stock to which the notice relates or the payment of any dividend or interest on the stock falls due, the corporation— (a) shall serve on the claimant at the claimant's address for service a notice informing the claimant of the request; and (b) except with the authority of the Court, shall not register the transfer or, as the case requires, pay the dividend or interest before the expiration of 10 days after the day that notice is served. 73.15 Withdrawal or discharge of stop notice (1) A claimant may by notice served on the corporation withdraw a notice served on it under Rule 73.13. (2) The Court may by order discharge any such notice. 73.16 Prohibition of transfer of or payment on stock (1) The Court, on the application of any person claiming a beneficial interest in any stock of a corporation, other than stock in court, may by order prohibit or restrict the corporation from registering any transfer of the whole or any part of the stock or from paying any dividend or interest thereon. (2) The Court may vary or discharge an order made under paragraph (1). __________________ r. 73.14 -- 454 of 641 -- Order 74 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 424 ORDER 74 ENFORCEMENT BY APPOINTMENT OF RECEIVER 74.01 Procedure An application for the appointment of a receiver by way of equitable execution may be made in accordance with Order 39 and that Order shall apply to such a receiver as it applies to a receiver appointed for any other purpose. 74.02 Appointment of receiver by way of equitable execution Before determining an application for the appointment of a receiver by way of equitable execution the Court— (a) shall have regard to— (i) the amount claimed by the judgment creditor; (ii) the amount likely to be obtained by the receiver; and (iii) the probable costs of the receiver's appointment; and (b) may direct an inquiry on these or any other matters. __________________ r. 74.01 -- 455 of 641 -- Order 75 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 425 ORDER 75 CONTEMPT PART 1—INTERPRETATION 75.01 Definition In this Order, unless the context or subject matter otherwise requires, "respondent" means a person guilty or alleged to be guilty of contempt of court. PART 2—SUMMARY PROCEEDINGS FOR CONTEMPT 75.02 Contempt in face of the Court Where it is alleged or appears to the Court that a person is guilty of contempt of court committed in the face of the Court, the Court may— (a) by oral order direct that the respondent be arrested and brought before the Court; or (b) issue a warrant for his or her arrest in Form 75A. 75.03 Procedure on hearing of charge Where the respondent is brought before the Court, whether under oral order or warrant for arrest, the Court shall— (a) cause the respondent to be informed of the contempt with which the respondent is charged; and (b) adopt thereafter such procedure as in the circumstances the Court thinks fit. r. 75.01 -- 456 of 641 -- Order 75 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 426 75.04 Custody pending disposal of charge The Court may order that until the charge is disposed of the respondent be kept in custody or be released or released on terms, including a condition that the respondent give security for attendance in person to answer the charge. PART 3—OTHER PROCEDURE FOR CONTEMPT 75.05 Application (1) This Part applies to— (a) contempt of court committed in the face of the Court; (b) any other contempt of the Court; (c) contempt of an inferior court. (2) In the case of contempt of court committed in the face of the Court, the procedure under this Part is alternative to that under Part 2. 75.06 Procedure (1) Application for punishment for the contempt shall be by summons or originating motion in accordance with this Rule. (2) Where the contempt is committed by a party in relation to a proceeding in the Court, the application shall be made by summons in the proceeding. (3) Where paragraph (2) does not apply, the application shall be made by originating motion which— (a) shall be entitled "The Queen v." the respondent, "on the application of" the applicant; and (b) shall require the respondent to attend before a Judge. r. 75.04 -- 457 of 641 -- Order 75 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 427 (4) The summons or originating motion shall specify the contempt with which the respondent is charged. (5) The summons or originating motion and a copy of every affidavit shall be served personally on the respondent, unless the Court otherwise orders. 75.07 Application by Prothonotary (1) The Court may, by order, direct the Prothonotary to apply by summons or originating motion for punishment of the contempt. (2) Where the Prothonotary applies as so directed, the Court may order that costs be paid by the Prothonotary to the respondent or by the respondent to the Prothonotary as it thinks fit. 75.08 Arrest of respondent Where a summons or originating motion for punishment of a contempt has been filed, and it appears to the Court that the respondent has absconded or is likely to abscond or has left or is likely to leave Victoria, the Court may issue a warrant for his or her arrest and detention in custody until he or she is brought before the Court to answer the charge, unless he or she gives security, as the Court directs, for his or her attendance in person to answer the charge and to submit to the judgment of the Court. 75.08.1 Arrest pending contempt hearing (1) If it appears to the Court that a party or other person bound by an order of the Court is guilty of contempt of court, and that the delay caused by proceeding in accordance with Rule 75.06 may cause serious or irreparable mischief, the Court may issue a warrant for the arrest of the person in Form 75AA. r. 75.07 -- 458 of 641 -- Order 75 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 428 (2) The Court may thereafter adopt such procedure as it thinks fit and in particular may direct that— (a) proceedings be conducted in accordance with Rule 75.06 with such variation as the case requires; (b) the person arrested be kept in custody or be released or released on terms, including a condition that he or she give security for his or her attendance in person to answer a charge of contempt. 75.09 Warrant for arrest (1) A warrant for the arrest of a respondent shall be addressed to the Sheriff and may be issued— (a) where the arrest is ordered by a Judge, under his or her hand; (b) where the arrest is ordered by the Court of Appeal, under the hand of the presiding Judge. (2) The warrant shall be in Form 75B. PART 4—COMMITTAL AND COSTS 75.10 Application This Part applies where the Court finds that a respondent is guilty of contempt of court. 75.11 Punishment for contempt (1) Where the respondent is a natural person, the Court may punish for contempt by committal to prison or fine or both. (2) Where the respondent is a corporation, the Court may punish for contempt by sequestration or fine or both. r. 75.09 -- 459 of 641 -- Order 75 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 429 (3) When the Court imposes a fine, it may commit, or further commit, the respondent to prison until the fine is paid. (4) The Court may make an order for punishment on terms, including a suspension of punishment. 75.12 Discharge Where a respondent is committed to prison for a term, the Court may order his or her discharge before the expiry of the term. 75.13 Warrant for committal A warrant for the committal of a person found guilty of contempt of court shall be in Form 75C. 75.14 Costs The costs of an application for punishment for contempt shall be in the discretion of the Court, whether an order for committal is made or not. __________________ r. 75.12 -- 460 of 641 -- Order 76 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 430 ORDER 76 SEQUESTRATION 76.01 Definitions In this Order, unless the context or subject matter otherwise requires— "judgment" includes order; "person bound" means a person against whom a judgment is entered or given or an order is made. 76.02 Enforcement by sequestration The process of enforcement under this Order shall be used instead of the process of enforcement by writ of sequestration. 76.03 Order for sequestration (1) An order for sequestration shall appoint not less than four persons as sequestrators and provide that the sequestrators, or any two or more of them, be authorised and directed to— (a) enter upon and take possession of the real and personal estate of the person bound; and (b) collect, receive and get into their hands the rents and profits of the real and personal estate of the person bound; and (c) keep them under sequestration in their hands until the person bound complies with the judgment to be enforced by sequestration or until further order. r. 76.01 -- 461 of 641 -- Order 76 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 431 (2) Where the person bound is a corporation and an order is made for the sequestration of the property of an officer of the corporation (whether or not an order for sequestration is also made against the corporation), the order— (a) shall give the same authority and direction to the sequestrators with respect to the real and personal estate of the officer as in the case of an order against a corporation; and (b) shall provide that the sequestrators shall keep that estate under sequestration in their hands until the corporation complies with the judgment to be enforced by sequestration or until further order. (3) The Court may discharge an order for sequestration. 76.04 Application (1) An application for an order for sequestration shall be by summons, and the summons and a copy of each affidavit in support shall be served personally on the person bound. (2) Where the person bound is a corporation and sequestration of the property of an officer of the corporation is sought, a copy of the summons and of each affidavit in support shall also be served personally on the officer. (3) The Court may dispense with service under paragraphs (1) and (2). __________________ r. 76.04 -- 462 of 641 -- Order 77 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 432 ORDER 77 AUTHORITY OF MASTERS 77.01 Authority Subject to this Order, a Master, in addition to exercising the powers and authorities conferred by any other provision of these Rules or any Act, may— (a) in any proceeding to which these Rules apply, give any judgment or make any order, including any judgment or order in the exercise of the inherent jurisdiction of the Court; (b) hear and determine any application and exercise any powers and authorities under the following statutory provisions— Administration and Probate Act 1958, section 65, and Part IV, where an order is sought under that Part by consent; Administrative Law Act 1978, sections 3, 4, 5, 6; Associations Incorporation Act 1981, sections 34 and 37(2); Evidence Act 1958, Divisions 1, 1A, 1B and 1C of Part I, section 42E; Guardianship and Administration Act 1986, section 66; Instruments Act 1958, section 5; Legal Profession Act 2004, section 3.4.33; Property Law Act 1958, section 84(3) and, where the application is not opposed, the other provisions of section 84; r. 77.01 -- 463 of 641 -- Order 77 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 433 Service and Execution of Process Act 1992 of the Commonwealth, sections 17(1), 18(3), 19(1), 25(1), 30(1), 33, 35(3), 39(1), 43, 44(1), 45(3), 57(1), 61, 67(1), 71, 72(1), 87(4), 105(4), 106(1); Supreme Court Act 1986, sections 18, 22, 24, 32, 51A, 58, 59, 60, 76, 77 and 78 and, where otherwise the Master would exercise jurisdiction under these Rules to give or the plaintiff would be entitled under these Rules to enter judgment for the possession of land, section 85; Transport Accident Act 1986, section 71; Trustee Act 1958, sections 48(1) and 63A(1)(a) and (3) in respect of trusts entered into in consequence of an order of the Court made in respect of moneys held or to be held on behalf of a person under a disability; (c) hear and determine— (i) an application under any Act for payment or transfer to any person of any money or securities in Court, including any interest; (ii) an application for or relating to the sale of property by auction or private contract, and for payment into court and investment of the purchase money. 77.02 Limitation upon authority (1) Subject to paragraphs (2) and (4) and Rules 12.12, 22.06(1)(d), 32.08(3) and 77.01(b) and (c)— (a) the trial of a proceeding shall not be held before a Master; and (b) a Master shall not give any judgment or make any order at the trial of a proceeding. r. 77.02 -- 464 of 641 -- Order 77 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 434 (2) Except as provided by paragraph (3)(a), (c), (d) or (e), a Master may at the trial of a proceeding give judgment or make an order by consent of all parties. (3) A Master shall not have authority to hear or determine— (a) any application which by these Rules or any Act is required to be heard only by a Judge; (b) subject to paragraph (4), any application for an injunction or other order under section 37 of the Act; (c) any proceeding relating to the liberty of the subject; (d) any criminal proceeding other than an appeal or an application for leave to appeal under Part 3 of Order 58; (e) any application under section 21 of the Act. (4) Notwithstanding paragraph (3)(b), a Master may hear and determine an application for— (a) the appointment of a receiver by way of equitable execution; (b) an injunction ancillary or incidental to equitable execution; (c) an application made under Rule 21.04(1) for judgment for an injunction. (5) Except where the trial was conducted by a Master, an order under Rule 49.02(2) shall only be made by a Judge. r. 77.02 -- 465 of 641 -- Order 77 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 435 77.03 Master to hear application (1) Subject to paragraph (2), application in a proceeding for any judgment or order which may, in accordance with this Order, be given or made by a Master shall be made to a Master, not a Judge. (2) A judgment or order to which paragraph (1) applies may be given or made by a Judge on— (a) a reference by a Master to a Judge under Rule 77.04; (b) an application made by special leave of a Judge; (c) an appeal from a Master under Rule 77.05; (d) the trial of the proceeding. 77.04 Reference by Master to Judge (1) Where on an application to a Master in accordance with Rule 77.01 it appears to the Master that the application is proper for the determination of a Judge, the Master may refer the application to a Judge. (2) The Judge to whom the application is referred may— (a) hear and determine the application; or (b) refer it back to the Master with directions. (3) A Master may refer to a Judge for directions any question arising on an application to the Master. r. 77.03 -- 466 of 641 -- Order 77 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 436 77.05 Appeal (1) Subject to paragraph (2), any person affected by any judgment given or order made by a Master under any Chapter of the Rules of the Supreme Court may appeal to a Judge. (2) No judgment or order of a Master given or made by consent or order of a Master as to costs only shall be the subject of appeal under paragraph (1) except by leave of a Judge or the Master. (3) Where the application on which the Master gave the judgment or made the order was not made on notice, the appeal shall be brought on for hearing within five days of the judgment or order. (4) Where the application was made on notice, the appeal shall be by notice in writing to attend before a Judge on the day and at the time named in the notice, and the notice shall be filed within five days of the judgment or order. (5) The notice shall be served on every person interested not less than two days before the day named in the notice. (6) An order extending the time fixed by paragraph (3) or (4) may be made by a Judge or the Master. (7) The appeal shall be by re-hearing de novo of the application to the Master but each party may, subject to any proper objections to admissibility— (a) rely upon any affidavit used before the Master and upon any evidence given orally before the Master; (b) by special leave of the Judge, rely upon an affidavit or oral evidence not used or given before the Master. r. 77.05 -- 467 of 641 -- Order 77 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 437 (8) Except so far as a Judge or the Master otherwise orders, an appeal shall not operate as a stay of execution or of proceedings under the judgment or order. 77.06 Master acting for Listing Master Any Master may exercise any power or authority conferred on the Listing Master by these Rules. 77.07 Master acting for another Where circumstances so require, a Master may hear and determine an application instead of the Master by whom it would otherwise be heard and determined. 77.08 Listing Master and Prothonotary (1) The Listing Master and, except where federal jurisdiction is being exercised, the Prothonotary, in addition to performing the duties and exercising the powers and authorities imposed or conferred upon them by the Chief Justice or the Rules of the Supreme Court, may in any proceeding— (a) make an order for the payment or taxation and payment of costs, including any reserved costs; and (b) by consent of the parties— (i) give judgment for the recovery of any debt or damages together with interest or damages in the nature of interest; (ii) strike out or dismiss any proceeding; (iii) make an order for the payment out of court of money paid into court (other than money paid into court for the benefit of a person under disability); (iv) make an order for the stay of execution. r. 77.06 -- 468 of 641 -- Order 77 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 438 (2) Any person affected by any order made by the Listing Master or Prothonotary under paragraph (1)(a) may appeal to a Judge, and Rule 77.05 shall, with any necessary modification, apply as if the appeal were an appeal from a Master to a Judge. __________________ r. 77.08 -- 469 of 641 -- Order 78 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 439 ORDER 78 PROCEEDINGS UNDER JUDGMENT 78.01 Definition In this Order "judgment" includes order. 78.02 Directions in judgment (1) Where by a judgment of the Court further proceedings are necessary, the Court, when giving the judgment or at any later time, may give directions for the conduct of those proceedings. (2) Without limiting paragraph (1), the Court may give directions with respect to— (a) the taking of any account or the making of any inquiry; (b) the evidence to be adduced on the account or inquiry; (c) the preparation of any draft instrument directed by the judgment to be settled, and the making of any objections to the draft; (d) the parties required to attend the proceedings; (e) the representation by the same solicitors of parties who constitute a class and by different solicitors of parties who ought to be separately represented; (f) the time for taking each step in the proceedings, and the day or days for the further attendance of the parties; (g) the publication of advertisements for creditors or other claimants and the time for creditors and claimants to respond. r. 78.01 -- 470 of 641 -- Order 78 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 440 (3) The Court may revoke or vary any directions given under this Rule. 78.03 Claims (1) In this Rule "administration proceeding" means a proceeding for the administration of the estate of a deceased person or the execution of a trust under the direction of the Court. (2) Where the judgment in an administration proceeding directs the taking of an account of debts or other liabilities of a deceased person, the Court may— (a) direct a party— (i) to examine the claims of persons claiming to be creditors of the estate and determine, so far as the party is able, to which of the claims the estate is liable; and (ii) determine, so far as the party is able, what are the other debts or liabilities of the deceased; and (b) direct a party to file an affidavit stating the party's conclusions and reasons. (3) Where the judgment in an administration proceeding directs an inquiry for unascertained persons entitled, the Court may— (a) direct a party— (i) to examine the claims of persons claiming to be entitled and determine, so far as the party is able, which of them are valid; and (ii) determine, so far as the party is able, what other persons are entitled; and (b) direct a party to file an affidavit stating the party's conclusions and reasons. r. 78.03 -- 471 of 641 -- Order 78 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 441 (4) Where the party directed by the Court under paragraph (2) or (3) to examine claims is not the personal representative or trustee concerned, then, unless the Court otherwise orders, that personal representative or trustee shall join with the party so directed in making the affidavit. (5) A copy of the affidavit under paragraph (2)(b) or (3)(b) shall be served on every other party not less than seven days before the time appointed by the Court for adjudicating on claims. (6) For the purpose of adjudicating on claims the Court may— (a) direct any claim to be investigated in such manner it thinks fit; (b) require any claimant to attend and prove the claimant's claim or to furnish further particulars or evidence of it; or (c) allow any claim with or without proof. (7) The Court may give directions for service on persons claiming to be creditors of notice of the result of the adjudication. (8) This Rule, with any necessary modification, shall apply where the judgment in any proceeding other than an administration proceeding directs that an account of debts or other liabilities be taken or that an inquiry be made. 78.04 Interest on debts (1) Where a judgment directs an account of the debts of a deceased person, unless the estate of the deceased is insolvent or the Court otherwise orders, interest shall be allowed— (a) on any debt which carries interest, at the rate it carries; r. 78.04 -- 472 of 641 -- Order 78 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 442 (b) on any other debt, from the date of the judgment at the rates payable on judgment debts from that date. (2) A creditor whose debt does not carry interest and who establishes the debt in proceedings under the judgment shall, unless the Court otherwise orders, be entitled to interest on the debt in accordance with paragraph (1)(b) out of any assets which remain after satisfying the costs of the proceeding, the debts established and the interest on such debts as by law carry interest. (3) For the purpose of this Rule— (a) the debts of a deceased person include funeral, testamentary and administration expenses; and (b) in relation to expenses incurred after the judgment, for the reference in paragraph (1)(b) to the date of the judgment substitute a reference to the date on which the expenses became payable. 78.05 Interest on legacies Where a judgment directs an account of legacies, then, subject to any direction in the will or codicil or any order of the Court, interest shall be allowed on each legacy at the rate of eight per cent per annum from the end of one year after the testator's death. 78.06 Account or inquiry by Master Unless the Court otherwise orders, a Master shall take any account or make any inquiry with respect to further proceedings under a judgment. r. 78.05 -- 473 of 641 -- Order 78 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 443 78.07 Master's order (1) The result of proceedings before a Master under a judgment shall be stated in the form of an order. (2) An order under this Rule shall have immediate binding effect on the parties to the proceeding and a copy shall be served on such parties as the Master directs. (3) Subject to any direction of the Master under paragraph (4) or otherwise, an order under this Rule shall have effect as a final order disposing of the proceeding in which it is made. (4) The Master may give directions as to the further consideration of the proceeding. 78.08 Appeal from Master Rule 77.05 shall apply to an order under Rule 78.07. __________________ r. 78.07 -- 474 of 641 -- Order 79 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 444 ORDER 79 FUNDS IN COURT PART 1—INTERPRETATION 79.01 Definitions In this Order— "common fund" means a common fund established by or under the Act; "order" includes judgment. PART 2—GENERAL 79.02 Application of money (1) This Rule applies where money is paid into court under an order of the Court. (2) Subject to paragraph (3), money paid into court and any interest allocated or received in respect thereof shall not be paid out except by order of the Court. (3) Except where money is paid into court for the benefit of a person under disability, money paid into court and any interest allocated or received in respect thereof may be paid out by the Senior Master upon and in accordance with a written authority signed by each party to the proceeding or the party's solicitor, each signature of a party to be verified by the indorsed certificate of a solicitor. r. 79.01 -- 475 of 641 -- Order 79 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 445 79.03 Money in court for person under disability (1) Where an order is made that money in court be held by the Senior Master for the benefit of a person under disability, the party who obtains the order shall as soon as practicable procure its authentication in accordance with these Rules. (2) As soon as practicable after authentication the Prothonotary shall forward to the Senior Master's clerk— (a) a copy of the order; and (b) if appropriate, a cheque for the amount in court to which the order relates. 79.04 Payment into court for person under disability (1) Where an order is made that money be paid into court for the benefit of a person under disability, the party who obtains the order shall as soon as practicable procure its authentication in accordance with these Rules. (2) As soon as practicable after authentication— (a) the party obtaining the order shall serve a copy on the party ordered to pay into court; (b) the Prothonotary shall forward a copy to the Senior Master's clerk. (3) The party ordered to pay into court shall pay the money to the Senior Master and within seven days of the payment serve on the party who obtained the order notice in writing of the payment. 79.05 Certificate of receipt Where money is received by the Senior Master under an order of the Court, the Senior Master shall as soon as practicable send to the party obtaining the order a certificate of receipt. r. 79.03 -- 476 of 641 -- Order 79 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 446 79.06 Delay (1) Where an order is made that a party pay money into court for the benefit of a person under disability, and it appears to the Senior Master after due inquiry that loss has been occasioned to the person under disability— (a) through undue delay by the party or the party's solicitor in making the payment; (b) where the order was made on the approval of a compromise of a claim by the person under disability, through undue delay by the solicitor for or the litigation guardian of the person under disability in— (i) obtaining the approval of the compromise; (ii) procuring the authentication of the order; or (iii) serving a copy of the order on the other party— the Senior Master may order that the person responsible for the loss pay into court for the benefit of the person under disability a sum by way of interest on the money received or to be received for investment. (2) The sum ordered to be paid under paragraph (1) shall not exceed that derived by applying to the money for the period of the loss the last rate fixed under the Penalty Interest Rates Act 1983. (3) The Senior Master shall not make an order under paragraph (1) without giving the person who appears to be responsible for the loss an opportunity to be heard. r. 79.06 -- 477 of 641 -- Order 79 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 447 (4) Any person affected by an order made by the Senior Master under paragraph (1) may appeal to a Judge, and Rule 77.05 shall apply with any necessary modification. (5) Where money is paid into court in accordance with an order of the Senior Master under paragraph (1), the Senior Master shall deal with the sum as if paid into court under the original order. PART 3—COMMON FUNDS 79.07 Investments in name of Senior Master All investments made from moneys forming part of any common fund shall be made in the name "The Senior Master of the Supreme Court of Victoria". 79.08 Transfer The Senior Master shall transfer any moneys received by him or her for the benefit of any person, estate or trust to a common fund, unless he or she considers it desirable for any special reason to invest on separate account. 79.09 Interest (1) At 31 May in each year interest shall be allocated and paid on each amount in a common fund as provided by section 113(14) of the Act at the last rate fixed under that section. (2) Where moneys are paid out of a common fund interest shall be allocated and paid thereon from the preceding 31 May to the date of the payment out at the last rate fixed under section 113(14) of the Act. r. 79.07 -- 478 of 641 -- Order 79 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 448 79.10 Proceeding in another court (1) This Rule applies where— (a) money is held for the benefit of a person in respect of a claim by or on behalf of that person in another court, whether that court is within or out of Victoria; and (b) if the claim were made in a proceeding in the Court, that person would be a person under disability. (2) Where— (a) the money is held in Victoria; or (b) the person for whose benefit the money is held is or is about to become domiciled or ordinarily resident within Victoria— the Senior Master may order that if the money is paid to the Court it be held in court for the benefit of that person. (3) Money held in court pursuant to an order made under paragraph (2) shall be taken to have been paid into court pursuant to an order in a proceeding in the Court that money be paid into court for the benefit of a person under disability. __________________ r. 79.10 -- 479 of 641 -- Order 80 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 449 ORDER 80 SERVICE OF FOREIGN PROCESS 80.01 Application This Order applies to the service on a person in Victoria of any document in connection with civil or commercial proceedings pending before a court or other tribunal in a foreign country— (a) where a letter of request from the court or tribunal requesting service on the person in Victoria is received by the Prothonotary, and— (i) is in accordance with a Convention; or (ii) is not in accordance with a Convention, and the Attorney-General certifies that effect ought to be given to the letter of request; (b) where a request for service on the person in Victoria is received by the Prothonotary from the consular or other authority of the foreign country and the request for service is in accordance with a Convention. 80.02 Documents required (1) In order that service may be effected in accordance with this Order, there shall be delivered to the Prothonotary, unless the Prothonotary otherwise directs— (a) the document to be served and two copies of it; (b) a copy of the letter of request or the request for service; r. 80.01 -- 480 of 641 -- Order 80 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 450 (c) if the document to be served or the letter of request or the request for service is not in English, a translation into English of the document or letter of request or request for service and a copy of the translation. (2) Where paragraph (1)(c) applies, the translation shall, unless the Prothonotary otherwise directs, bear a certificate of the translator, in English, stating that it is an accurate translation of the document or letter of request or the request for service. 80.03 Service (1) The Prothonotary shall request the Sheriff to serve the document and a copy of the letter of request or the request for service. (2) If the document or the letter of request or the request for service is not in English, a translation of the document or letter of request or request for service shall be served. (3) The document, copy letter of request or copy request for service, and any translation may be served in any manner in which originating process in the Court may be served, including substituted service in accordance with Rule 6.10. (4) A proceeding for an order for substituted service shall be commenced by the Attorney-General by originating motion, which shall not name any defendant. r. 80.03 -- 481 of 641 -- Order 80 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 451 80.04 Affidavit of service (1) After the document, copy letter of request or copy request for service, and any translation have been served or attempts to serve them have failed, the Sheriff shall file an affidavit made by the person who effected or attempted to effect service. (2) The affidavit shall— (a) where the document, copy letter of request or copy request for service and any translation have been served, be made in accordance with Rule 6.17; (b) where the document, copy letter of request or copy request for service and any translation have not been served, describe the attempts made to serve them. 80.05 Certificate (1) Where the letter of request or request for service is in accordance with a Convention, the Prothonotary shall give either— (a) a certificate, sealed with the seal of the Court— (i) certifying that the document, copy letter of request or copy request for service, and any translation, were served on the person to be served, on the date and in the manner specified in the certificate or, if attempts to effect service failed, certifying the failure and the reasons for the failure; and (ii) certifying the amount of the costs incurred; or (b) such other certificate as is appropriate to the terms of the relevant Convention. r. 80.04 -- 482 of 641 -- Order 80 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 452 (2) Where the letter of request is not in accordance with a Convention, the Prothonotary shall give either— (a) a certificate, sealed with the seal of the Court— (i) annexing the letter of request, a copy of the document to be served and of any translation and a copy of the affidavit under Rule 80.04; (ii) identifying the annexures; (iii) certifying that the manner of service of the documents and the proof of service are such as are required by the Rules of Court regulating the service of originating process of the Court in Victoria or, if attempts to effect service failed, certifying the failure and the reasons for the failure; and (iv) certifying the amount of the costs incurred; or (b) such other certificate as is appropriate to the terms of the letter of request. (3) The Prothonotary shall send the certificate to the Attorney-General or, if the letter of request or the request for service or any relevant Convention so requires, to the appropriate consul or other authority. __________________ r. 80.05 -- 483 of 641 -- Order 81 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 453 ORDER 81 OBTAINING EVIDENCE FOR EXTERNAL TRIBUNAL 81.01 Procedure (1) An application for an order under Division 1C of Part I of the Evidence Act 1958 for the examination of a witness in Victoria in relation to a matter pending before a court or tribunal in a place out of Victoria may be made— (a) by a person nominated for that purpose by the court or tribunal concerned; or (b) if no person is so nominated, by the Victorian Government Solicitor with the consent of the Attorney-General. (2) The application— (a) shall be made by originating motion not joining any person as a defendant; and (b) shall be supported by affidavit to which shall be exhibited— (i) the letter of request, certificate or other document pursuant to which the application is made; and (ii) if that document is not in the English language, a translation in that language. 81.02 Examiner The Court may make an order for the examination of the witness before any fit and proper person nominated by the person making the application or such other qualified person as the Court appoints (in this Order called "the examiner"). r. 81.01 -- 484 of 641 -- Order 81 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 454 81.03 Conduct of examination (1) An examination under this Order shall be conducted in accordance with this Rule, unless the Court otherwise orders. (2) Subject to Rules 81.04, 81.05 and 81.06, Rules 41.02 to 41.10 apply to the examination as if— (a) the matter pending before the court or tribunal concerned were a proceeding in the Court; (b) the order for the examination were made under Rule 41.01(1)(a) in that proceeding; and (c) where the examiner is a Judge or Master, an order were made under Rule 41.01(1)(a) for the examination of a person before a Judge or Master. 81.04 Attendance of non-party Where the person on whose application an order is made under this Order is not a party to the matter pending before the court or tribunal concerned, the examiner may permit that person and the person's legal advisers to attend the examination. 81.05 Deposition and exhibits (1) Paragraphs (4) and (5) of Rule 41.08 shall not apply to an examination under this Order. (2) The examiner shall send the deposition to the Prothonotary. (3) Where the examiner receives an exhibit on the examination, the examiner shall, on the conclusion of the examination, return the exhibit to the person producing it unless that person consents to its retention by the examiner. r. 81.03 -- 485 of 641 -- Order 81 Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 455 (4) Where the examiner retains an exhibit under paragraph (3), the examiner shall send it to the Prothonotary together with the deposition. 81.06 Certificate Upon receipt of a deposition taken under this Order the Prothonotary shall— (a) give a certificate sealed with the seal of the Court annexing and identifying the letter of request, certificate or other document from the court or tribunal requesting the examination, the order of the Court for examination, the deposition, and the exhibits (if any) received from the examiner; and (b) send the certificate and the annexures to the Attorney-General or, where the letter of request, certificate or other document was sent to the Prothonotary by some other person pursuant to a Convention, to that other person. __________________ r. 81.06 -- 486 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 456 FORMS FORM 5A Rule 5.02(1) WRIT IN THE SUPREME COURT 20 No. OF VICTORIA AT BETWEEN A.B. Plaintiff and C.D. Defendant TO THE DEFENDANT TAKE NOTICE that this proceeding has been brought against you by the plaintiff for the claim set out in this writ. IF YOU INTEND TO DEFEND the proceeding, or if you have a claim against the plaintiff which you wish to have taken into account at the trial, YOU MUST GIVE NOTICE of your intention by filing an appearance within the proper time for appearance stated below. YOU OR YOUR SOLICITOR may file the appearance. An appearance is filed by— (a) filing a "Notice of Appearance" in the Prothonotary's office, 436 Lonsdale Street, Melbourne, or, where the writ has been filed in the office of a Deputy Prothonotary, in the office of that Deputy Prothonotary; and (b) on the day you file the Notice, serving a copy, sealed by the Court, at the plaintiff's address for service, which is set out at the end of this writ. IF YOU FAIL to file an appearance within the proper time, the plaintiff may OBTAIN JUDGMENT AGAINST YOU on the claim without further notice. *THE PROPER TIME TO FILE AN APPEARANCE is as follows— (a) where you are served with the writ in Victoria, within 10 days after service; (b) where you are served with the writ out of Victoria and in another part of Australia, within 21 days after service; Form 5A -- 487 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 457 (c) where you are served with the writ in New Zealand or in Papua New Guinea, within 28 days after service; (d) where you are served with the writ in any other place, within 42 days after service. IF the plaintiff claims a debt only and you pay that debt, namely, $ and $ for legal costs to the plaintiff or the plaintiff's solicitor within the proper time for appearance, this proceeding will come to an end. Notwithstanding the payment you may have the costs taxed by the Court. FILED [e.g. 15 June 20 ] Prothonotary THIS WRIT is to be served within one year from the date it is filed or within such further period as the Court orders. Page 2 [Plaintiff 's indorsement of a statement of claim or of a statement sufficient to give with reasonable particularity notice of the nature of the claim and the cause thereof and of the relief or remedy sought in the proceeding.] Page 3 1. Place of trial— (If no place of trial is specified, trial will be in Melbourne.) 2. Mode of trial— (If trial before a Judge and jury is not specified, trial will be before a Judge sitting alone.) 3.** This writ was filed— (a) by the plaintiff in person; (b) for the plaintiff by [name or firm of solicitor], solicitor, of [business address of solicitor]; (c) for the plaintiff by [name or firm of solicitor], solicitor, of [business address of solicitor] as agent for [name or firm of principal solicitor], solicitor, of [business address of principal]. 4. The address of the plaintiff is— Form 5A -- 488 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 458 5. The address for service of the plaintiff is— [Where the plaintiff sues by a solicitor, the address for service is the business address of the solicitor or, where the solicitor acts by an agent, the business address of the agent. Where the plaintiff sues without a solicitor, the address for service is stated in 4, but, where that address is outside Victoria, the plaintiff must state an address for service within Victoria.] 6. The address of the defendant is— ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– * [Strike out this paragraph where order made fixing time for appearance and substitute "THE PROPER TIME TO FILE AN APPEARANCE is within days after service on you of this writ."] ** [Complete or strike out as appropriate.] _______________ Form 5A -- 489 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 459 FORM 5B Rule 5.02(2) ORIGINATING MOTION BETWEEN PARTIES [heading as in Form 5A] TO THE DEFENDANT TAKE NOTICE that this proceeding by originating motion has been brought against you by the plaintiff for the relief or remedy set out below. IF YOU INTEND TO DEFEND the proceeding, YOU MUST GIVE NOTICE of your intention by filing an appearance within the proper time for appearance stated below. YOU OR YOUR SOLICITOR may file the appearance. An appearance is filed by: (a) filing a "Notice of Appearance" in the Prothonotary's office, 436 Lonsdale Street, Melbourne, or, where the originating motion has been filed in the office of a Deputy Prothonotary, in the office of that Deputy Prothonotary; and (b) on the day you file the Notice, serving a copy, sealed by the Court, at the plaintiff's address for service, which is set out at the end of this originating motion. IF YOU FAIL to file an appearance within the proper time, the plaintiff MAY OBTAIN JUDGMENT AGAINST YOU without further notice. IF YOU FILE an appearance within the proper time, the plaintiff cannot obtain judgment against you except by application to the Court after notice to you by summons. *THE PROPER TIME TO FILE AN APPEARANCE is as follows: (a) where you are served with the originating motion in Victoria, within 10 days after service; (b) where you are served with the originating motion out of Victoria and in another part of Australia, within 21 days after service; (c) where you are served with the originating motion in New Zealand or in Papua New Guinea, within 28 days after service; (d) where you are served with the originating motion in any other place, within 42 days after service. FILED [e.g. 15 June 20 ]. Prothonotary Form 5B -- 490 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 460 THIS ORIGINATING MOTION is to be served within one year from the date it is filed or within such further period as the Court orders. Page 2 [Specify the relief or remedy sought and the Act, if any, under which the claim is made, and, where it includes the answer to any question, state the question.] Page 3 1. Place of trial— (If no place of trial is specified, trial will be held in Melbourne.) 2.** This originating motion was filed— (a) by the plaintiff in person; (b) for the plaintiff by [name or firm of solicitor], solicitor, of [business address of solicitor]; (c) for the plaintiff by [name or firm of solicitor], solicitor, of [business address of solicitor] as agent for [name or firm of principal solicitor], solicitor, of [business address of principal]. 3. The address of the plaintiff is— 4. The address for service of the plaintiff is— [Where the plaintiff sues by a solicitor, the address for service is the business address of the solicitor or, where the solicitor acts by an agent, the business address of the agent. Where the plaintiff sues without a solicitor, the address for service is stated in 3, but, where that address is outside Victoria, the plaintiff must state an address for service within Victoria.] 5. The address of the defendant is— ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– * [Strike out this paragraph where order made fixing time for appearance and substitute "THE PROPER TIME TO FILE AN APPEARANCE is within days after service on you of this originating motion."] ** [Complete or strike out as appropriate.] _______________ Form 5B -- 491 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 461 FORM 5C Rules 5.02(2), 41.19(2), 45.05(2)(b) ORIGINATING MOTION BETWEEN PARTIES (where commenced under Rule 45.05) [heading as in Form 5A] TO THE DEFENDANT TAKE NOTICE that this proceeding by originating motion has been brought against you by the plaintiff for the relief or remedy set out below. ALSO TAKE NOTICE that the plaintiff cannot continue with the proceeding except by order of the Court. You will be given notice by summons of any application for the order and until the summons is served you are not required to take any step in the proceeding. [or where a summons for an order under Rule 45.05 or for judgment will be served with the originating motion] IF YOU INTEND TO DEFEND the proceeding you must attend before the Court at the time and place named in the summons served with this originating motion. FILED [e.g. 15 June 20 ]. Prothonotary THIS ORIGINATING MOTION is to be served within one year from the date it is filed or within such further period as the Court orders. Page 2 [complete as in Form 5B] Page 3 [complete as in Form 5B] _______________ Form 5C -- 492 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 462 FORM 5D Rule 5.02(2) ORIGINATING MOTION (where no defendant) IN THE SUPREME COURT 20 No. OF VICTORIA AT IN THE MATTER of an application by A.B. for [describe nature of application and state the Act, if any, under which made]. TAKE NOTICE that the plaintiff will apply to the Court on [e.g. 20 June, 20 ] at a.m. [or p.m.] for [specify the relief or remedy sought and the Act, if any, under which the claim is made, and where it includes any question to be answered, state the question]. FILED [e.g. 15 June 20 ]. Prothonotary The address of the plaintiff is— _______________ Form 5D -- 493 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 463 FORM 5E Rules 5.02(2), 53.02(3) ORIGINATING MOTION FOR RECOVERY OF LAND UNDER ORDER 53 IN THE SUPREME COURT 20 No. OF VICTORIA AT BETWEEN A.B. Plaintiff and C.D. Defendant [or if the plaintiff does not know the name of any person in occupation] BETWEEN A.B. Plaintiff and (The plaintiff does not know the name of any person in occupation to make defendant) Defendant TO THE DEFENDANT AND TO EVERY PERSON IN OCCUPATION OF THE LAND AT [description of land*] [or where there is no defendant] TO EVERY PERSON IN OCCUPATION OF THE LAND AT [description of land*] TAKE NOTICE that this proceeding by originating motion has been commenced by the plaintiff for the recovery of land at . Further particulars of the claim appear in the affidavit made in support of the claim. A copy of the affidavit and of any exhibit referred to therein is served with this originating motion. AND TAKE NOTICE that the plaintiff will apply to the Master in Court No. , Supreme Court, 436 Lonsdale Street, Melbourne on [e.g. 20 June 20 ] at a.m. [or p.m.] or so soon afterwards as the business of the Court allows. At that time the Master may refer to a Judge for hearing forthwith an application by the plaintiff for judgment. Form 5E -- 494 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 464 IF YOU ARE NAMED AS DEFENDANT AND INTEND TO DEFEND THIS PROCEEDING you must: (a) give notice of your intention by filing an appearance on or before the day specified above; and (b) attend before the Master as specified above. YOU OR YOUR SOLICITOR may file the appearance. An appearance is filed by: (a) filing a "Notice of Appearance" in the Prothonotary's office, 436 Lonsdale Street, Melbourne, or, where the originating motion has been filed in the office of a Deputy Prothonotary, in the office of that Deputy Prothonotary; and (b) on the day you file the Notice, serving a copy, sealed by the Court, at the plaintiff's address for service, which is set out at the end of this originating motion. IF YOU FAIL to file an appearance on or before the day specified above or to attend before the Master on that day, the plaintiff MAY OBTAIN JUDGMENT AGAINST YOU without further notice. IF YOU ARE IN OCCUPATION OF THE LAND AND ARE NOT NAMED AS DEFENDANT you may attend before the Master in person or by your counsel or solicitor on the day and at the time and place specified above and apply to be made a defendant. FILED [e.g. 15 June 20 ]. Prothonotary Page 2 1. Place of trial— (If no place of trial is specified, trial will be held in Melbourne.) 2.** This originating motion was filed— (a) by the plaintiff in person; (b) for the plaintiff by [name or firm of solicitor], solicitor, of [business address of solicitor]; (c) for the plaintiff by [name or firm of solicitor], solicitor, of [business address of solicitor] as agent for [name or firm of principal solicitor], solicitor, of [business address of principal]. 3. The address of the plaintiff is— Form 5E -- 495 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 465 4. The address for service of the plaintiff is— [Where the plaintiff sues by a solicitor, the address for service is the business address of the solicitor or, where the solicitor acts by an agent, the business address of the agent. Where the plaintiff sues without a solicitor, the address for service is stated in 3, but, where that address is outside Victoria, the plaintiff must state an address for service within Victoria.] 5. [If there is a defendant] The address of the defendant is— ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– * [Note: The land should be so described as to be physically identifiable.] ** [Complete or strike out as appropriate.] _______________ Form 5E -- 496 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 466 FORM 7A Rule 7.13(2) LETTER OF REQUEST FOR SERVICE OF DOCUMENT [heading as in originating process] To Whereas a civil proceeding is now pending in the Supreme Court of Victoria in which is plaintiff and is defendant and in which the plaintiff claims . And whereas in order that the matters in dispute between the parties in the proceeding may be duly determined it is necessary that [describe the document] be served on and it has been made to appear that is a national of and is domiciled or resident in at . Now I the Prothonotary of the Supreme Court of Victoria hereby request that for the reasons aforesaid and for the assistance of the Court you will be pleased to cause the said [and a translation of it], [both of] which I send to you with this request, to be served on of . And I inform you that proper arrangements have been made by the Court and by the Commonwealth of Australia for the reimbursement of any expenses incurred in carrying out the service hereby requested. And I further inform you that legal assistance with respect to the service of documents in the State of Victoria can be given by this Court at the request of a foreign court if that request is duly transmitted to the Attorney-General of the State of Victoria. Dated [e.g. 15 June 20 ]. Prothonotary of the Supreme Court of the State of Victoria. _______________ Form 7A -- 497 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 467 FORM 8A Rule 8.05(1) NOTICE OF APPEARANCE [heading as in originating process] FILE an appearance for [full name of defendant] the abovenamed defendant. Dated [e.g. 15 June, 20 ]. [Signed] The address of the defendant is [where the defendant appears in person and the address of the defendant is outside Victoria The address of the defendant within Victoria for service is ]. [where the defendant appears by a solicitor The name or firm and the business address within Victoria of the solicitor for the defendant is ]. [where the solicitor is agent of another as agent for [name or firm and business address of principal].] _______________ FORM 8B Rule 8.08(2) NOTICE OF CONDITIONAL APPEARANCE [heading as in originating process] FILE a conditional appearance for [full name of defendant] the abovenamed defendant. Dated [e.g. 15 June 20 ]. [Signed] [continue as in Form 8A] _______________ Form 8A -- 498 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 468 FORM 10A Rule 10.04(5) HEADING AND NOTICE ON COUNTERCLAIM WHERE DEFENDANT NEW PARTY IN THE SUPREME COURT OF VICTORIA 20 No. AT BETWEEN A.B. Plaintiff and C.D. Defendant (by original proceeding) AND BETWEEN C.D. Plaintiff and A.B. and E.F. Defendants (by counterclaim) To E.F. of [address] TAKE NOTICE that this proceeding has been brought against you by the defendant for the claim set out in this counterclaim. IF YOU INTEND TO DEFEND the claim YOU MUST GIVE NOTICE of your intention by filing an appearance within the proper time for appearance stated below. Form 10A -- 499 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 469 YOU OR YOUR SOLICITOR may file the appearance. An appearance is filed by: (a) filing a "Notice of Appearance" in the Prothonotary's office, 436 Lonsdale Street, Melbourne, or, where the counterclaim has been filed in the office of a Deputy Prothonotary, in the office of that Deputy Prothonotary; and (b) on the day you file the Notice, serving a copy, sealed by the Court, at the defendant's address for service, which is set out at the end of the counterclaim. IF YOU FAIL to file an appearance within the proper time, the defendant may OBTAIN JUDGMENT AGAINST YOU on the counterclaim without further notice. *THE PROPER TIME TO FILE AN APPEARANCE is as follows— (a) where you are served with the counterclaim in Victoria, within 10 days after service; (b) where you are served with the counterclaim out of Victoria and in another part of Australia, within 21 days after service; (c) where you are served with the counterclaim in New Zealand or in Papua New Guinea, within 28 days after service; (d) where you are served with the counterclaim in any other place, within 42 days after service. COUNTERCLAIM [Set out in separate, consecutively numbered paragraphs all the material facts relied upon for the counterclaim and state precisely the relief claimed.] The address of the defendant is— The address for service of the defendant is— ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– * [Strike out this paragraph where order made fixing time for appearance and substitute "THE PROPER TIME TO FILE AN APPEARANCE is within days after service on you of this counterclaim."] _______________ Form 10A -- 500 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 470 FORM 10B Rule 10.04(6) NOTICE OF APPEARANCE TO COUNTERCLAIM [heading as in Form 10A] FILE an appearance for [full name of defendant to counterclaim] the abovenamed defendant to the counterclaim of the defendant. Dated [e.g. 15 June 20 ]. [Signed] [continue as in Form 8A] _______________ Form 10B -- 501 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 471 FORM 11A Rule 11.15(4)(a) THIRD PARTY NOTICE IN THE SUPREME COURT 20 No. OF VICTORIA AT BETWEEN A.B. Plaintiff and C.D. Defendant and E.F. Third Party To E.F. of [address] TAKE NOTICE that the plaintiff has brought this proceeding against the defendant for the claim set out in the writ and statement of claim [or originating motion and affidavit[s]] served herewith. AND TAKE NOTICE that the defendant disputes the plaintiff's claim on the grounds set out in the defendant's defence served herewith, and claims to be entitled to relief against you on the grounds set out in the statement of claim indorsed on this notice. IF YOU INTEND TO DISPUTE the plaintiff's claim against the defendant, or the defendant's claim against you, YOU MUST GIVE NOTICE of your intention by filing an appearance within the proper time for appearance stated below. YOU OR YOUR SOLICITOR may file the appearance. An appearance is filed by: (a) filing a "Notice of Appearance" in the Prothonotary's office, 436 Lonsdale Street, Melbourne, or, where the writ has been filed in the office of a Deputy Prothonotary, in the office of that Deputy Prothonotary; and (b) on the day you file the Notice, serving a copy, sealed by the Court, at the defendant's address for service, which is set out at the end of this notice. Form 11A -- 502 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 472 IF YOU FAIL to file an appearance within the proper time you will be taken to admit the validity of any judgment against the defendant and your own liability to the defendant to the extent claimed in the statement of claim indorsed on this notice, and the defendant may OBTAIN JUDGMENT AGAINST YOU without further notice. *THE PROPER TIME TO FILE AN APPEARANCE is as follows— (a) where you are served with the notice in Victoria, within 10 days after service; (b) where you are served with the notice out of Victoria and in another part of Australia, within 21 days after service; (c) where you are served with the notice in New Zealand or in Papua New Guinea, within 28 days after service; (d) where you are served with the notice in any other place, within 42 days after service. FILED [e.g. 15 June 20 ]. Prothonotary Page 2 STATEMENT OF CLAIM [Set out in separate, consecutively numbered paragraphs all the material facts relied upon for the claim against the third party and state precisely the relief claimed.] Page 3 1. ** This notice was filed— (a) by the defendant in person; (b) for the defendant by [name of firm of solicitor], solicitor, of [business address of solicitor]; (c) for the defendant by [name or firm of solicitor], solicitor, of [business address of solicitor] as agent for [name or firm of principal solicitor], solicitor, of [business address of principal]. 2. The address of the defendant is— 3. The address for service of the defendant is— Form 11A -- 503 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 473 4. The address of the third party is— ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– * [Strike out this paragraph where order made fixing time for appearance and substitute "THE PROPER TIME TO FILE AN APPEARANCE is within days after service on you of this notice."] ** [Complete or strike out as appropriate.] _______________ Form 11A -- 504 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 474 FORM 11B Rule 11.15(5) NOTICE BY ONE TORTFEASOR CLAIMING CONTRIBUTION AGAINST ANOTHER [heading as in originating process] TO THE DEFENDANT TAKE NOTICE that the plaintiff has brought this proceeding against the defendants to recover damages for loss sustained [e.g. as the result of a collision between a motor car driven by you and a motor car driven by the defendant , which is alleged to have been caused by the negligence of the defendants]. AND TAKE NOTICE that the defendant claims to be entitled to contribution from you in respect of any sum which the plaintiff may recover herein against him to the extent of such amount as may be found by the Court to be just and equitable having regard to the extent of your responsibility for such damages [e.g. on the ground that your negligence contributed to the happening of the collision]. FILED [e.g. 15 June 20 ]. Prothonotary _______________ Form 11B -- 505 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 475 FORM 12A Rule 12.05(1)(b) NOTICE OF CLAIM TO GOODS TAKEN IN EXECUTION [heading as in originating process] To the [judgment creditor] of [address] TAKE NOTICE that A.B. has claimed the goods [or certain goods] [where only certain goods are claimed here enumerate them] taken in execution by the Sheriff under the warrant of execution issued in this proceeding. WITHIN five days of service of this notice on you, you may serve notice in writing on the Sheriff stating whether you admit or dispute the claim of A.B. to the goods. IF you do not within the period of five days after service of this notice serve notice on the Sheriff stating that you admit the claim or if within the period of five days you serve notice in writing on the Sheriff that you dispute the claim, the Sheriff may apply to the Court by summons for relief by way of interpleader. If you serve notice in writing on the Sheriff stating that you admit the claim you will not be liable for any fees or expenses incurred by the Sheriff after the notice is given. Dated [e.g. 15 June 20 ]. Sheriff _______________ Form 12A -- 506 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 476 FORM 15A Rule 15.08(6) ORDER APPROVING COMPROMISE OF CLAIM OF MINOR [heading as in originating process] [other particulars as in Form 60C] JUDGE [or MASTER]: DATE MADE: ORIGINATING PROCESS: HOW OBTAINED: [state whether on application by summons before trial with date of summons, or at trial with date of commencement of trial] ATTENDANCE: OTHER MATTERS: 1. The plaintiff was born on [insert date of birth]. 2. By a compromise entered into on 20 the defendant proposes to pay and the plaintiff desires to accept $ for the benefit of the plaintiff and the plaintiff's costs, including the costs of this application, in full settlement of the plaintiff's claim in the proceeding. 3. The Court read the following material: (a) [identify affidavits by date and name of deponent]; (b) the exhibits to the affidavits including the opinion of of Counsel dated 20 . 4. The defendant consents to the proposed compromise. THE COURT ORDERS THAT: 1. [where order is made by Judge] There be special leave for the application to be made to a Judge. 2. The compromise be approved. 3. The defendant within days after service of a copy of this order on the defendant's solicitors pay $ to the Senior Master for the benefit of the plaintiff [where appropriate and $ to the solicitors for the plaintiff, to be disbursed or retained by them in payment of the items totalling $ referred to in the affidavit of dated 20 ]. Form 15A -- 507 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 477 4. The costs of the plaintiff, including the costs of this application, be taxed, and when taxed, paid by the defendant. 5. Subject to any further order, the Senior Master invest $ for the plaintiff to be paid out with the interest accrued thereon to the plaintiff upon his or her attaining the age of 18 years. 6. Upon payment by the defendant of the sum[s] and costs referred to, the proceeding be forever stayed. 7. Each party have liberty to apply. 8. The exhibits to the affidavits [where appropriate and a transcript of the evidence with respect to the application] be transmitted to the Senior Master's clerk. DATE AUTHENTICATED: Prothonotary _______________ Form 15A -- 508 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 478 FORM 15B Rule 15.08(6) ORDER APPROVING COMPROMISE OF CLAIM UNDER PART III OF WRONGS ACT FOR BENEFIT OF MINOR [heading as in originating process] [other particulars as in Form 60C] JUDGE [or MASTER]: DATE MADE: ORIGINATING PROCESS: HOW OBTAINED: [state whether on application by summons before trial with date of summons, or at trial with date of commencement of trial] ATTENDANCE: OTHER MATTERS: 1. The dates of birth of the minors on whose behalf the proceeding is brought are: [name] [date of birth] . [name] [date of birth]. 2. By a compromise entered into on 20 the defendant proposes to pay and the plaintiff desires to accept [where appropriate $ for the plaintiff and] $ and $ for and , respectively, the minors referred to above and the plaintiff's costs, including the costs of this application, in full settlement of the plaintiff's claim in the proceeding. 3. The Court read the following material: (a) [identify affidavits by date and name of deponent]; (b) the exhibits to the affidavits including the opinion of of Counsel dated 20 . 4. The defendant consents to the proposed compromise. THE COURT ORDERS THAT: 1. [where order is made by Judge] There be special leave for the application to be made to a Judge. 2. The compromise be approved. Form 15B -- 509 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 479 3. The defendant within days after service of a copy of this order on the defendant's solicitors pay [where appropriate $ to the solicitors for the plaintiff, being $ for the plaintiff and the balance of $ to be disbursed or retained by them in payment of the items referred to in the affidavit of dated 20 and] $ to the Senior Master for the benefit of the minors referred to above, being $ for the benefit of and $ for the benefit of . 4. The costs of the plaintiff, including the costs of this application, be taxed and, when taxed, paid by the defendant. 5. Subject to any further order, the Senior Master invest $ and $ for and respectively, each sum to be paid out with the interest accrued thereon to the minor for whose benefit it was invested upon his or her attaining the age of 18 years. [continue as in Form 15A] _______________ Form 15B -- 510 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 480 FORM 18AA Rule 18A.02 NOTICE OF CONSENT TO BE A GROUP MEMBER [heading as in originating process] To: The Plaintiff and the Defendant TAKE NOTICE THAT [insert name of person], a person referred to in section 33E(2) of the Supreme Court Act 1986, consents to be a group member in this proceeding. Dated: [e.g. 15 June 20 ] [Signed] Signature of person consenting or his or her solicitor Address of person consenting: Position of person consenting: _______________ Form 18AA -- 511 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 481 FORM 18AB Rule 18A.04 NOTICE OF OPTING OUT BY GROUP MEMBER [heading as in originating process] To: The Prothonotary The Plaintiff The Defendant I, [name], a group member in the above group proceeding, give notice under section 33J(2) of the Supreme Court Act 1986 that I am opting out of this proceeding. Dated: [e.g. 15 June 20 ] [Signed] Signature of group member or his or her solicitor: Address of group member: _______________ Form 18AB -- 512 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 482 FORM 19A Rule 19.02(3) NOTICE OF A CONSTITUTIONAL MATTER [heading as in originating process] 1. The [party whose case raises the matter] gives notice that this proceeding involves a matter under the Constitution or involving its interpretation within the meaning of section 78B of the Judiciary Act 1903 of the Commonwealth. 2. [State specifically the nature of the matter]. 3. [State the facts showing the matter is one to which section 78B of the Judiciary Act 1903 applies]. Dated [e.g. 15 June 20 ]. [Signed] To the Prothonotary And to _______________ FORM 29A Rule 29.02(2) NOTICE FOR DISCOVERY [heading as in originating process] To the [identify party] You are required to make discovery of documents within 42 days after service of this notice on you. Dated [e.g. 15 June 20 ]. [Signed] _______________ Form 19A -- 513 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 483 FORM 29B Rule 29.04 AFFIDAVIT OF DOCUMENTS [heading as in originating process] I, the abovenamed , make oath and say as follows: 1. I have in my possession, custody or power, the documents relating to the questions in this proceeding enumerated in Schedule 1. 2. The documents enumerated in Part 2 of Schedule 1 are privileged, and I object to produce them. The documents are privileged on the ground— (a) as to documents numbered 4 to 6, that [state the ground]; (b) as to document numbered 7, that [state the ground]. 3. I have had, but no longer have, in my possession, custody or power, the document relating to the questions in the proceeding enumerated in Schedule 2. 4. Document numbered 8, referred to in Schedule 2, was last in my possession, custody or power on [state when] and I believe that [state belief as to what has become of it]. 5. To the best of my knowledge, information and belief neither I nor my solicitor nor any other person on my behalf has now, or ever had, in my or his, her or its possession, custody or power, any document relating to any question in the proceeding, other than the documents enumerated in the said Schedules 1 and 2. [Describe each document in the Schedules as original or copy.] SCHEDULE 1 Part 1 1. 2. 3. Form 29B -- 514 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 484 Part 2 4. 5. 6. 7. SCHEDULE 2 8. Sworn, etc. _______________ Form 29B -- 515 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 485 FORM 29C Rules 29.09(3), 29.10(5) NOTICE TO PRODUCE [heading as in originating process] To the [identify party] TAKE NOTICE that the [identify party] requires you to produce for that party's inspection the following documents referred to in your [writ, pleading, particulars, affidavit, etc.] [describe documents required]. Dated [e.g. 15 June 20 ]. [Signed] _______________ FORM 29D Rule 29.12.1(2) NOTICE OF DEFAULT IN MAKING DISCOVERY OF DOCUMENTS [heading as in originating process] To the [identify party] YOU have failed to make discovery of documents to the [identify party] within the time limited by the Rules [or fixed by order of the Court made on [e.g. 20 June 20 ]. TAKE NOTICE that unless you make discovery of documents to the [identify party] within 7 days of the day of service of this notice on you the plaintiff will apply to the Court for an order that the defence served by you be struck out [or the defendant will apply to the Court for an order that the proceeding be dismissed]. Dated [e.g. 20 June 20 ]. [Signed] _______________ Form 29C -- 516 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 486 FORM 30A Rule 30.09.1(2) NOTICE OF DEFAULT IN ANSWERING INTERROGATORIES [heading as in originating process] To the [identify party] YOU have failed to answer interrogatories served by the [identify party] for your examination within the time limited by the Rules [or fixed by order of the Court made on e.g. 20 June 20 ]. TAKE NOTICE that unless you answer the interrogatories within 7 days of the day of service of this notice on you the plaintiff will apply to the Court for an order that the defence served by you be struck out [or the defendant will apply to the Court for an order that the proceeding be dismissed]. Dated [e.g. 20 June 20 ]. [Signed] _______________ Form 30A -- 517 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 487 FORM 35A Rules 35.03(4), 35.05(4) NOTICE TO ADMIT [heading as in originating process] To the [identify party] TAKE NOTICE that if you do not, within [specify a number not less than 14] days after service of this notice upon you, serve a notice upon the disputing any fact specified [or the authenticity of any document mentioned] below, that fact [or the authenticity of that document] shall, for the purpose of this proceeding only, be taken to be admitted by you in favour of the . If you do serve a notice disputing that fact [or the authenticity of that document], and afterwards that fact [or the authenticity of that document] is proved, you shall pay the costs of proof, unless the Court otherwise orders. 1. 2. [specify each fact] or 1. [mention each document] 2. Dated [e.g. 15 June 20 ]. [Signed] _______________ Form 35A -- 518 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 488 FORM 35B Rules 35.03(4), 35.05(4) NOTICE OF DISPUTE [heading as in originating process] To the [identify party] The disputes the following facts specified in the 's notice dated [insert date of notice]. 1. [identify each fact] 2. or The disputes the authenticity of the following documents mentioned in the 's notice dated [insert date of notice]. 1. [identify each document] 2. Dated [e.g. 15 June, 19 ]. [Signed] _______________ Form 35B -- 519 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 489 FORM 39A Rule 39.05(b) DEED OF GUARANTEE [heading as in originating process] THIS guarantee is made the day of 20 , between [name] of [address], called "the guarantor", and the Prothonotary of the Supreme Court of the State of Victoria. Whereas by an order of the Supreme Court of the State of Victoria made the day of 20 , in the abovementioned proceeding, [name] of [address], called "the receiver", has been appointed to receive [or receive and manage] [follow words of the order]. And whereas pursuant to the said order the receiver is required to give security approved by the Court. And whereas the guarantor has agreed at the request of the receiver to give a guarantee in consideration of the annual premium mentioned below which guarantee has been approved by the Court in testimony whereof a Master of the Supreme Court has signed an allowance in the margin hereof. Now this guarantee witnesses that the guarantor promises the Prothonotary that if the receiver does not account to the Court for what he receives as receiver or does not deal with what he receives as the Court directs the guarantor will pay to the Prothonotary whatever is required to make good the default to a limit of $ . Guarantee for $ . Annual premium $ . The Common Seal of) was) hereunto affixed in) the presence of) _______________ Form 39A -- 520 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 490 FORM 41A Rule 41.01(2) ORDER FOR EXAMINATION WITHIN VICTORIA [heading as in originating process] [other particulars as in Form 60C] THE COURT ORDERS THAT: [name] of [address within Victoria] be examined before [name and address or description of examiner]. _______________ Form 41A -- 521 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 491 FORM 41B Rule 41.01(2) ORDER FOR EXAMINATION OUT OF VICTORIA [heading as in originating process] [other particulars as in Form 60C] THE COURT ORDERS THAT: 1. [name and address or description] be appointed as examiner for the purpose of taking the examination, cross-examination and re-examination orally on oath or affirmation of a witness [name] of [address out of Victoria] a witness on the part of at in [name of country]. 2. The examiner be at liberty to invite the attendance of *the witness and the production of documents, but shall not exercise any compulsory powers, and that otherwise the examination be taken in accordance with the procedure of Victoria. 3. The solicitors give to the solicitors days' notice of the date on which they propose to send out this order to for execution, and that days after the service of such notice the solicitors for the plaintiff and defendant respectively exchange the names of their agents at to whom notice relating to the examination of the said witness may be sent. 4. days before the examination of the said witness notice of such examination be given by the agent of the party on whose behalf the witness is to be examined to the agent of the other party, unless such notice be dispensed with. 5. The depositions when taken, together with any documents referred to therein, or certified copies of such documents, or of extracts therefrom, be sent by the examiner, under seal, to the Prothonotary of the Supreme Court of Victoria, 436 Lonsdale Street, Melbourne, on or before , 20 or such further day as may be ordered, there to be filed in the Prothonotary's office. 6. The trial of the proceeding be stayed until the depositions are filed or further order. Form 41B -- 522 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 492 7. The costs of this application and the examination be costs in the proceeding. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– * [If any Convention which applies requires that the invitation or notice to the witness shall expressly state that no compulsory powers may be exercised, this shall be done.] __________________ Form 41B -- 523 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 493 FORM 41C Rule 41.01(3) ORDER FOR LETTER OF REQUEST TO JUDICIAL AUTHORITY OUT OF VICTORIA [heading as in originating process] [other particulars as in Form 60C] THE COURT ORDERS THAT: 1. A letter of request issue directed to the proper judicial authority for the examination of the following witnesses, namely: E.F. of [address] G.H. of [address] 2. The depositions taken of the examination be filed in the office of the Prothonotary. 3. The trial of the proceeding be stayed until the depositions are filed or further order. 4. The costs of this application and the letter of request and examination be costs in the proceeding. _______________ Form 41C -- 524 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 494 FORM 41D Rule 41.13(2) LETTER OF REQUEST FOR EXAMINATION OF WITNESS [heading as in originating process] To [the competent judicial authority] of . Whereas a civil proceeding is now pending in the Supreme Court of the State of Victoria in which is plaintiff and defendant and in which the plaintiff claims . And whereas it has been represented to the said Court that it is necessary for the purposes of justice and for the due determination of the questions in dispute between the parties in the proceeding that the following persons should be examined as witnesses upon oath or affirmation touching such questions, namely, of and of and it appears that such witnesses are resident within your jurisdiction. Now I a Judge of the Supreme Court of the State of Victoria hereby request that for the reasons aforesaid and for the assistance of the said Court you will be pleased to summon the said witnesses [and such other witnesses as the agents of the said plaintiff and defendant humbly request you in writing so to summon] to attend at such time and place as you appoint before you, or such other person as according to your procedure is competent to take the examination of witnesses, and that you will cause such witnesses to be examined orally [or upon the interrogatories which accompany this letter of request] touching the said questions in the presence of the agents of the plaintiff and defendant or such of them as attend the examination on due notice given. And I further request that you will permit the agents of both the plaintiff and the defendant or such of them as are present to examine [upon interrogatories and orally upon the subject matter thereof or arising out of the answers thereto] such witnesses as are, after due notice in writing, produced on their behalf, and the other party to cross-examine the said witnesses [upon cross- interrogatories and orally] and the party producing the witness for examination to re-examine him orally. And I further request that you will be pleased to cause the evidence of the said witnesses [or the answers of the said witnesses and all additional oral questions, whether on examination, cross-examination or re-examination] to be reduced into writing and all books, documents and things produced on such examination to be duly marked for identification, and that you will be further pleased to authenticate such examination by the seal of your tribunal or in such other way as is in accordance with your procedure and to return it together with [the interrogatories and cross-interrogatories and] a note of the Form 41D -- 525 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 495 charges and expenses payable in respect of the execution of this request through the from whom the same was received for transmission to the Supreme Court of the State of Victoria. And I further request that you will cause the agents of the parties if appointed, or in default of appointment will cause me, to be informed of the date and place where the examination is to take place. Dated [e.g. 15 June 20 ]. _______________ Form 41D -- 526 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 496 FORM 41AA Rule 41A.02 NOTICE OF APPLICATION UNDER SECTION 42E(1) OF THE EVIDENCE ACT 1958 [heading as in originating process] PART 1—PARTICULARS OF APPLICATION I, [name of applicant] of [address of applicant or firm of solicitor for applicant] hereby request an *audio visual/*audio link in accordance with the following details— 1. *Audio visual/*Audio link— From [originating city/town] To [receiving city/town] 2. Type of hearing—[e.g. *Hearing/*Practice Court Hearing/*Directions Hearing/*Taxation of Costs/*Other] 3. Number of persons to appear before, or give evidence by *audio visual/*audio link— 4. Suggested time (if any) for link— 5. Estimate of duration of link— 6. Is this application being made with the consent of the parties to the proceeding?— 7. If the answer to question 6 is No, what parties have not given consent?— 8. If a hearing date has been fixed, what is the date of the hearing?— I hereby undertake to pay, in the first instance, the appropriate amount prescribed by the regulations under section 42H(1) of the Act. Date: [Signature] *strike out as appropriate. Form 41AA -- 527 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 497 PART 2—PARTICULARS OF HEARING (to be completed by the Prothonotary) The application will be heard before the Judge in the Practice Court, Supreme Court, William Street, Melbourne [or the Master in Court No. , Supreme Court, 436 Lonsdale Street, Melbourne] on [e.g. 20 June 20 ] at a.m. [or p.m.] or so soon afterwards as the business of the Court allows. FILED [e.g. 15 June 20 ]. *strike out as appropriate. _______________ Form 41AA -- 528 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 498 FORM 42A Rule 42.02(2) SUBPOENA TO GIVE EVIDENCE [heading as in originating process] To [name] of [address]: THE COURT ORDERS that you attend for the purpose of giving evidence— (a) before the Court [or as the case requires]; (b) at [address of Court or other place]; *(c) at 10.30 a.m. [or as the case requires] on [date], or, if notice of a later day is given to you by the [identify party by whom subpoena filed] or by the solicitor for that party, the later day, and until you are excused from further attending. or *at 10.30 a.m. [or as the case requires] on a day during the sittings beginning on [date], notice of which day will be given to you by the [identify party by whom subpoena filed] or by the solicitor for that party and until you are excused from further attending, or on a day and at a time during any later sittings in which this proceeding is heard, notice of which day and time is so given, and until you are excused from further attending. FILED [e.g. 15 June 20 ]. Prothonotary Filed by the [identify party]. Note that— (1) if you do not comply with this subpoena you may be arrested; (2) any question concerning this subpoena should be addressed not to the Court but to the solicitor for the party who filed the subpoena. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– *[Strike out as appropriate] _______________ Form 42A -- 529 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 499 FORM 42B Rule 42.02(2) SUBPOENA FOR PRODUCTION (Subpoena to a natural person) [heading as in originating process] To [name] of [address]: THE COURT ORDERS that you attend and produce this subpoena and the documents and things described in the schedule— (a) before the Court [or as the case requires]; (b) at [address of Court or other place]; *(c) at 10.30 a.m. [or as the case requires] on [date], or, if notice of a later day is given to you by the [identify party by whom subpoena filed] or by the solicitor for that party, the later day, and until you are excused from further attending. or *at 10.30 a.m. [or as the case requires] on a day during the sittings beginning on [date], notice of which day will be given to you by the [identify party by whom subpoena filed] or by the solicitor for that party and until you are excused from further attending, or on a day and at a time during any later sittings in which this proceeding is heard, notice of which day and time is so given, and until you are excused from further attending. Instead of so attending, you may produce this subpoena and the documents and things described in the schedule to the Prothonotary of the Supreme Court, 436 Lonsdale Street, Melbourne, by hand or by post, in either case so that the Prothonotary receives them not later than two days (excluding Saturdays, Sundays or other holidays) before the first date on which you are required to attend. [Delete this paragraph when production is required otherwise than to the Supreme Court or any officer of the Court.] Form 42B -- 530 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 500 SCHEDULE [description of documents and things] FILED [e.g. 15 June 20 ]. Prothonotary Filed by the [identify party]. Note that— (1) if you do not comply with this subpoena you may be arrested; (2) documents and things produced by you in accordance with this subpoena may be returned by post to you at your address shown on this subpoena but you may in writing on or attached to this subpoena request that they be posted to you at another address given by you or that you be informed when they are available to be collected by you; (3) any question concerning this subpoena should be directed not to the Court but to the solicitor for the party who filed the subpoena. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– * [Strike out as appropriate] _______________ Form 42B -- 531 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 501 FORM 42C Rule 42.02(2) SUBPOENA FOR PRODUCTION AND TO GIVE EVIDENCE [heading as in originating process] To [name] of [address]: THE COURT ORDERS that you attend and produce this subpoena and the documents and things described in the schedule and attend for the purpose of giving evidence— (a) before the Court [or as the case requires]; (b) at [address of Court or other place]; *(c) at 10.30 a.m. [or as the case requires] on [date], or, if notice of a later day is given to you by the [identify party by whom subpoena filed] or by the solicitor for that party, the later day, and until you are excused from further attending. or *at 10.30 a.m. [or as the case requires] on a day during the sittings beginning on [date], notice of which day will be given to you by the [identify party by whom subpoena filed] or by the solicitor for that party and until you are excused from further attending, or on a day and at a time during any later sittings in which this proceeding is heard, notice of which day and time is so given, and until you are excused from further attending. Instead of attending to produce the documents and things described in the schedule, you may produce them and this subpoena to the Prothonotary of the Supreme Court, 436 Lonsdale Street, Melbourne, by hand or by post, in either case so that the Prothonotary receives them not later than two days (excluding Saturdays, Sundays or other holidays) before the first date on which you are required to attend. Note, however, that if you produce the documents and things to the Prothonotary you will still be required to attend to give evidence as directed above. [Delete this paragraph when production is required otherwise than to the Supreme Court or any officer of the Court]. Form 42C -- 532 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 502 SCHEDULE [description of documents and things] FILED [e.g. 15 June 20 ]. Prothonotary Filed by the [identify party]. Note that— (1) if you do not comply with this subpoena you may be arrested; (2) documents and things produced by you in accordance with this subpoena may be returned by post to you at your address shown on this subpoena but you may in writing on or attached to this subpoena request that they be posted to you at another address given by you or that you be informed when they are available to be collected by you; (3) any question concerning this subpoena should be directed not to the Court but to the solicitor for the party who filed the subpoena. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– * [Strike out as appropriate] _______________ Form 42C -- 533 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 503 FORM 42D Rule 42.02(2) SUBPOENA FOR PRODUCTION (Subpoena to a corporation for production and for its proper officer to answer questions concerning possession, etc. of documents and things) [heading as in originating process] To [name of corporation] of [address]: THE COURT ORDERS that— 1. [name of corporation], called "the corporation", shall produce this subpoena and the documents and things described in the schedule by causing its proper officer to attend and produce them— (a) before the Court [or as the case requires]; (b) at [address of Court or other place]; *(c) at 10.30 a.m. [or as the case requires] on [date], or, if notice of a later day is given to you by the [identify party by whom subpoena filed] or by the solicitor for that party, the later day, and until you are excused from further attending. or *at 10.30 a.m. [or as the case requires] on a day during the sittings beginning on [date], notice of which day will be given to you by the [identify party by whom subpoena filed] or by the solicitor for that party and until you are excused from further attending, or on a day and at a time during any later sittings in which this proceeding is heard, notice of which day and time is so given, and until you are excused from further attending. Instead of so attending, the corporation may produce this subpoena and the documents and things described in the schedule to the Prothonotary of the Supreme Court, 436 Lonsdale Street, Melbourne, by hand or by post, in either case so that the Prothonotary receives them not later than two days (excluding Saturdays, Sundays or other holidays) before the first date on which the officer is required to attend. [Delete this paragraph when production is required otherwise than to the Supreme Court or any officer of the Court.] Form 42D -- 534 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 504 2. The officer who is to attend shall make enquiries for the purpose of answering, and, on attending, shall answer, such questions as the Court requires him or her to answer concerning the possession or custody of those documents and things. SCHEDULE [description of documents and things] FILED [e.g. 15 June 20 ]. Prothonotary Filed by the [identify party]. Note that— (1) if the corporation fails to comply with this subpoena, the subpoena may be enforced by arrest of an officer of the corporation; (2) documents and things produced by the corporation in accordance with this subpoena may be returned by post to it at its address shown on this subpoena but it may in writing on or attached to this subpoena request that they be posted to it at another address given by it or that it be informed when they are available to be collected by it; (3) any questions concerning this subpoena should be directed not to the Court but to the solicitor for the party who filed the subpoena. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– * [Strike out as appropriate] _______________ Form 42D -- 535 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 505 FORM 42E Rule 42.10(3) SUBPOENA FOR PRODUCTION TO PROTHONOTARY (Subpoena to a natural person) [heading as in originating process] To [name] of [address]: THE COURT ORDERS that you do produce this subpoena (or a copy of this subpoena) and the documents described in the Schedule to the Prothonotary of the Supreme Court, Level 2, 436 Lonsdale Street, Melbourne, by hand or by post, on or before [date for compliance]. If this subpoena (or a copy) and the documents described in the Schedule are produced by post to the Prothonotary, they must be sent so that the Prothonotary receives them before the date mentioned above. If compliance with the subpoena requires the production of a document which is not in writing (such as a photograph, computer disk, diskette, audio- tape, video-tape etc.—see Interpretation of Legislation Act 1984, section 38) then, provided the original is held by you until trial, a copy only need be produced to the Prothonotary. If a copy is produced, it must be clearly marked as such and it may be used by the Prothonotary for the purposes of inspection and, if necessary, copying. SCHEDULE [description of documents] [If necessary, attach schedule describing documents] NOTES (1) If you do not comply with this subpoena you may be arrested. (2) Any documents produced by you in accordance with this subpoena may be returned by post to you at your address shown on this subpoena but you may in writing on or attached to this subpoena (or a copy) request that the documents be posted to you at another address given by you or that you be informed when they are available to be collected by you. (3) Any question concerning this subpoena should be directed not to the Court but to the solicitor for the party who filed the subpoena. Form 42E -- 536 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 506 FURTHER NOTES All documents produced in compliance with this subpoena will be available, unless earlier returned, at the trial of the proceeding and, subject to the following, may be inspected in the meantime by each party to the proceeding and his, her or its solicitor, and copies taken. 1. If you are the person required by this subpoena to produce documents: If you have any objection to producing the documents or to their being inspected by any one or more of the parties to the proceeding, you must notify the Prothonotary in writing of your objection and the grounds of that objection before the day specified in the subpoena for the production of the documents. The party filing this subpoena is required to inform you of the time and place when your objection will be heard by a Judge or a Master of the Court. 2. If you are a party to the proceeding and have been served with a copy of this subpoena: If you object to the documents being inspected by another party to the proceeding, you must notify the Prothonotary of your objection and the grounds of that objection before the day specified in the subpoena for the production of the documents. The party filing this subpoena is required to inform you of the time and place when your objection will be heard by a Judge or a Master of the Court. However, if you are the plaintiff in this proceeding and this subpoena seeks from another person the production of a hospital or medical file or record concerning you or your condition, you may, before taking objection, inspect the file or record produced to the Prothonotary and, after such inspection, notify any objection you may have to inspection of that file or record by any other party, provided that you make your inspection and notify your objection and the grounds of that objection, if any, in writing within seven days after the day specified in the subpoena for production. 3. If you are the party who filed this subpoena: If any objection is taken, either to the production of the documents or to their being inspected, you will be informed by the Prothonotary of the objection and of the time and place when the objection will be heard. You are required promptly to inform the person named in the subpoena and all other parties to the proceeding accordingly so that they may be heard, if they wish, before the objection is determined. Form 42E -- 537 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 507 Documents produced in compliance with this subpoena may not be removed from the custody of the Prothonotary, even for the purpose of their being photocopied, except upon application in writing signed by a solicitor for a party. Rule 42.10(14) of Chapter I of the Rules of Court is then relevant: "(14) A solicitor signing such an application undertakes to the Court by force of this Rule if removing the document from the office of the Prothonotary— (a) to keep the document in his or her personal custody or in the custody of a barrister briefed by the solicitor in the proceeding until the document is returned to the Prothonotary; and (b) to return the documents to the Prothonotary at the time appointed by the Prothonotary.". A breach of this undertaking may be dealt with as a contempt of court. _______________ Form 42E -- 538 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 508 FORM 42F Rule 42.10(3) SUBPOENA FOR PRODUCTION TO PROTHONOTARY (Subpoena to a corporation) [heading as in originating process] To [name of corporation] of [address]: THE COURT ORDERS that [name of corporation] (called "the corporation") do produce this subpoena (or a copy of this subpoena) and the documents described in the Schedule by causing its proper officer to produce them to the Prothonotary of the Supreme Court, Level 2, 436 Lonsdale Street, Melbourne, by hand or by post, on or before [date for compliance]. If this subpoena (or a copy) and the documents described in the Schedule are produced by post to the Prothonotary, they must be sent so that he receives them before the date mentioned above. If compliance with the subpoena requires the production of a document which is not in writing (such as a photograph, computer disk, diskette, audio- tape, video-tape etc.—see Interpretation of Legislation Act 1984, section 38) then, provided the original is held by the corporation until trial, a copy only need be produced to the Prothonotary. If a copy is produced, it must be clearly marked as such and it may be used by the Prothonotary for the purposes of inspection and, if necessary, copying. SCHEDULE [description of documents] [If necessary, attach schedule describing documents] NOTES (1) If the corporation does not comply with this subpoena, the subpoena may be enforced by arrest of an officer of the corporation. (2) Any documents produced by the corporation in accordance with this subpoena may be returned by post to it at its address shown on this subpoena but the corporation may in writing on or attached to this subpoena (or a copy) request that the documents be posted to it at another address given by it or that it be informed when they are available to be collected by it. Form 42F -- 539 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 509 (3) Any question concerning this subpoena should be directed not to the Court but to the solicitor for the party who filed the subpoena. FURTHER NOTES All documents produced in compliance with this subpoena will be available, unless earlier returned, at the trial of the proceeding and, subject to the following, may be inspected in the meantime by each party to the proceeding and his, her or its solicitor, and copies taken. 1. Notice to the corporation: If the corporation has any objection to producing the documents or to their being inspected by one or all of the parties to the proceeding, it must notify the Prothonotary in writing of its objection and the grounds of that objection before the day specified in the subpoena for the production of the documents. The party filing this subpoena is required to inform the corporation of the time and place when its objection will be heard by a Judge or a Master of the Court. 2. If you are a party to the proceeding and have been served with a copy of this subpoena: If you object to the documents being inspected by another party to the proceeding, you must notify the Prothonotary in writing of your objection and the grounds of that objection before the day specified in the subpoena for the production of the documents. The party filing this subpoena is required to inform you of the time and place when your objection will be heard by a Judge or a Master of the Court. However, if you are the plaintiff in this proceeding and this subpoena seeks from another person the production of a hospital or medical file or record concerning you or your condition, you may, before taking objection, inspect the file or record produced to the Prothonotary and, after such inspection, notify any objection you may have to inspection of that file or record by any other party, provided that you make your inspection and notify your objection and the grounds of that objection, if any, in writing within seven days after the day specified in the subpoena for production. 3. If you are the party who filed this subpoena: If any objection is taken, either to the production of the documents or to their being inspected, you will be informed by the Prothonotary of the objection and of the time and place when the objection will be heard. You are required promptly to inform the corporation named in the subpoena and all other parties to the proceeding accordingly so that they may be heard, if they wish, before the objection is determined. Form 42F -- 540 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 510 Documents produced in compliance with this subpoena may not be removed from the custody of the Prothonotary, even for the purpose of their being photocopied, except upon application in writing signed by a solicitor for a party. Rule 42.10(14) of Chapter I of the Rules of Court is then relevant: "(14) A solicitor signing such an application undertakes to the Court by force of this Rule if removing the document from the office of the Prothonotary— (a) to keep the document in his or her personal custody or in the custody of a barrister briefed by the solicitor in the proceeding until the document is returned to the Prothonotary; and (b) to return the documents to the Prothonotary at the time appointed by the Prothonotary.". A breach of this undertaking may be dealt with as a contempt of court. _______________ Form 42F -- 541 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 511 FORM 43A Rule 43.06(3) CERTIFICATE IDENTIFYING EXHIBIT [heading as in affidavit] This is the exhibit marked [e.g. "ABC1"] now produced and shown to [identify deponent] at the time of swearing the person's affidavit on [date]. [Signature of person taking affidavit] [state distinguishing mark of exhibit and briefly and specifically described exhibit: e.g. Exhibit "ABC1" Letter BHP to CRA 15/6/09]* * print distinguishing mark and description in bold type and in a font size not less than 20 points in lower right hand corner of the page. _______________ Form 43A -- 542 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 512 FORM 44A Rule 44.01 EXPERT WITNESS CODE OF CONDUCT 1. A person engaged as an expert witness has an overriding duty to assist the Court impartially on matters relevant to the area of expertise of the witness. 2. An expert witness is not an advocate for a party. 3. Every report prepared by an expert witness for the use of the Court shall state the opinion or opinions of the expert and shall state, specify or provide— (a) the name and address of the expert; (b) an acknowledgement that the expert has read this code and agrees to be bound by it; (c) the qualifications of the expert to prepare the report; (d) the facts, matters and assumptions on which each opinion expressed in the report is based (a letter of instructions may be annexed); (e) (i) the reasons for, (ii) any literature or other materials utilised in support of, (iii) a summary of— each such opinion; (f) (if applicable) that a particular question, issue or matter falls outside the expert's field of expertise; (g) any examinations, tests or other investigations on which the expert has relied, identifying the person who carried them out and that person's qualifications; (h) a declaration that the expert has made all the inquiries which the expert believes are desirable and appropriate, and that no matters of significance which the expert regards as relevant have, to the knowledge of the expert, been withheld from the Court; (i) any qualification of an opinion expressed in the report without which the report is or may be incomplete or inaccurate; and (j) whether any opinion expressed in the report is not a concluded opinion because of insufficient research or insufficient data or for any other reason. Form 44A -- 543 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 513 4. Where an expert witness has provided to a party (or that party's legal representative) a report for the use of the Court, and the expert thereafter changes his or her opinion on a material matter, the expert shall forthwith provide to the party (or that party's legal representative) a supplementary report which shall state, specify or provide the information referred to in paragraphs (a), (d), (e), (g), (h), (i) and (j) of clause 3 of this code and, if applicable, paragraph (f) of that clause. 5. If directed to do so by the Court, an expert witness shall— (a) confer with any other expert witness; and (b) provide the Court with a joint report specifying (as the case requires) matters agreed and matters not agreed and the reasons for the experts not agreeing. 6. Each expert witness shall exercise his or her independent judgment in relation to every conference in which the expert participates pursuant to a direction of the Court and in relation to each report thereafter provided, and shall not act on any instruction or request to withhold or avoid agreement. __________________ Form 44A -- 544 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 514 FORM 45A Rule 45.04(2); 45.05(6) SUMMONS ON ORIGINATING MOTION [heading as in originating process] To: [identify each party or other person to whom summons is addressed and state address of each person not a party.] You are summoned to attend before the Court on the hearing of an application by the plaintiff for judgment or an order in respect of the relief or remedy sought in the originating motion as follows: [describe the judgment or order sought]. The application will be heard before the Master in Court No. , Supreme Court, 436 Lonsdale Street, Melbourne, on [e.g. 20 June 20 ] at a.m. [or p.m.] or so soon afterwards as the business of the Court allows. The Master may, as appropriate— (a) where he or she has authority to give the judgment or make the order sought by the plaintiff, hear and determine the application or refer it to another Master for hearing and determination; (b) by consent of the defendant, give the judgment or make the order; (c) refer the application to a Judge for hearing and determination; (d) place the proceeding in the list of cases for trial and give directions for the filing and service of affidavits or otherwise. FILED [e.g. 15 June 20 ]. This summons was filed by of , solicitor for the plaintiff. _______________ Form 45A -- 545 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 515 FORM 46A Rule 46.04(1) SUMMONS [heading as in originating process] To: [identify each party or other person to whom summons is addressed and state address of each person not a party]. You are summoned to attend before the Court on the hearing of an application by the for [describe the order sought]. The application will be heard before the Judge in the Practice Court [or the Master in Court No. , Supreme Court, 436 Lonsdale Street, Melbourne], Supreme Court, William Street, Melbourne, on [e.g. 20 June 20 ] at a.m. [or p.m.] or so soon afterwards as the business of the Court allows. FILED [e.g. 15 June 20 ]. This summons was filed by of , solicitor for the [identify party]. _______________ Form 46A -- 546 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 516 FORM 48A Rule 48.03 NOTICE OF TRIAL [heading as in originating process] To the [identify parties] TAKE NOTICE that this proceeding is ready for trial in that to the best of the knowledge, information and belief of the *plaintiff/*defendant— (1) the trial is to proceed without pleadings OR pleadings are closed and it is not proposed to apply before trial for any amendment; (2) particulars are not being sought OR all particulars of the defence/statement of claim that have been sought have been served (*save as to damages, in so far as these are to be updated closer to trial) and it is not proposed to seek further particulars; (3) it is not proposed to interrogate OR interrogatories have been served and answers obtained and it is not proposed to seek to serve further interrogatories or to seek further answers; (4) it is not proposed to serve a notice for discovery OR discovery has been obtained and inspection had and it is not proposed to seek further discovery or further inspection of documents. As for the trial itself— (5) this proceeding is defended by [insert names of parties defending] OR this proceeding is undefended; (6) the *plaintiff/*defendant is ready to proceed to trial upon not less than 14 days' notice; (7) the trial is to be conducted at [insert place of trial]; (8) the trial can reasonably be expected to take [insert number] days and no longer. Dated [insert date] * delete if inapplicable [Signed] __________________ Form 48A -- 547 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 517 FORM 48B Rule 48.03 NOTICE OF TRIAL [heading as in originating process] To the [identify parties] TAKE NOTICE that this proceeding is fixed for trial on the day of 20 . Dated [insert date] [Signed] _______________ Form 48B -- 548 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 518 FORM 53A Rule 53.07(2) JUDGMENT IN SUMMARY PROCEEDING FOR RECOVERY OF LAND [heading as in Form 5E] [other particulars as in Form 60A] THE JUDGMENT OF THE COURT IS THAT: The plaintiff recover possession of the land described in the originating motion as [description of land*] [where there is a defendant and that the defendant pay the plaintiff $ costs] [or pay the plaintiff's costs to be assessed]. [other particulars as in Form 60D] ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– * [Note: The land should be so described as to be physically identifiable.] _______________ Form 53A -- 549 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 519 FORM 53B Rule 53.08(3) WARRANT OF POSSESSION IN SUMMARY PROCEEDING FOR RECOVERY OF LAND [heading as in Form 5E] TO THE SHERIFF: In respect of the judgment dated [e.g. 20 April 20 ] by which it was adjudged that the plaintiff recover possession of the land described in the schedule [where there is a defendant and that the defendant pay the plaintiff $ costs or the plaintiff's costs, which have been taxed at $ ], enter the land and cause the plaintiff to have possession of it [where there is a defendant], and levy on the property of the defendant which is authorised by law to be taken in execution for [continue as in Form 68A as for a levy for costs only] and indorse [continue as in Form 68A]. SCHEDULE [Describe land as in judgment] Issued [e.g. 15 June 20 ]. By the Court Prothonotary Issued at the request of the plaintiff. [where there is a defendant] The last known address of the defendant [continue as in Form 68A]. _______________ Form 53B -- 550 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 520 FORM 57A Rule 57.03(3) WRIT OF HABEAS CORPUS [heading as in Form 5A] TO THE DEFENDANT: of [address] HAVE the plaintiff [or name of person restrained, if not the plaintiff] before the Judge in the Practice Court, Supreme Court, William Street, Melbourne, on [e.g. 20 June 20 ] and thereafter submit to the further order of the Court as to his or her custody. YOU are required to make a return to this writ by filing a notice stating the grounds of detention of the plaintiff [or as the case may be] and serving a copy on the plaintiff at or before the time referred to above. TAKE NOTICE that disobedience to this writ is a contempt of court which may be punished by imprisonment or fine or both. Issued [e.g. 15 June 20 ]. By the Court _______________ Form 57A -- 551 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 521 FORM 58A Rule 58.18 IN THE SUPREME COURT OF VICTORIA 20 No. AT MELBOURNE In the matter of section 80B of the Children and Young Persons Act 1989 BETWEEN AB Appellant AND CD Respondent NOTICE OF APPEAL Date of document: Filed on behalf of the Appellant Prepared by: [insert details] TAKE NOTICE that the abovementioned appellant appeals to the Supreme Court under section 80B of the Children and Young Persons Act 1989 against the decision of the Children's Court of Victoria made on [insert date]. The order appealed against was that [insert details of order made] OR was as attached [attach copy of order] The appellant appeals against the whole of that order OR against that part of the order by which it was provided [identify that part of the order which is appealed against]. The appellant appeals on the following grounds: [insert concisely and in numbered paragraphs the grounds of appeal relied upon]. This appeal will be heard before the Judge in the Practice Court, Supreme Court, William Street, Melbourne on the day of 20 at a.m. [or p.m.] or so soon afterwards as the business of the Court allows. Signed by the Appellant or the Appellant's solicitors _______________ Form 58A -- 552 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 522 FORM 58B Rule 58.24 NOTICE OF APPEAL AND UNDERTAKING TO PROSECUTE [under section 116 or section 197 of the Children and Young Persons Act 1989] The name of the appellant is: The name and address of the respondent is: 1. To the Registrar of the Children's Court at: 2. To the Prothonotary at: 3. And to the abovenamed respondent: A. The proceeding(s) appealed from— 1. Venue of the Children's Court appealed from: 2. Date(s) of order(s) made in the Children's Court: 3. Particulars of order(s) [if space insufficient attach extra page(s)] B. The appeal is to be heard by the Supreme Court *at a.m. [or p.m.] on [date] , at , [or] *at a time and place to be fixed by the Prothonotary. C. General Grounds of Appeal [insert particulars] D. 1. Appellant's personal address for service: 2. Solicitor's name and address for service: E. The appellant requests the Prothonotary to list the appeal. Dated: Signature of *Appellant/*Solicitor for Appellant * Delete if inapplicable. Form 58B -- 553 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 523 UNDERTAKING TO PROSECUTE I, [name] of [address] UNDERTAKE to (i) (a) *appear at the Supreme Court to prosecute the appeal at a.m. [or p.m.] on [date] , at 210 William Street, Melbourne, to be present in the Supreme Court for the duration of the appeal; and OR (b) *appear at the Supreme Court sitting at to prosecute the appeal on a day to be fixed by the Prothonotary and to be present for the duration of the appeal; and (ii) to notify the Prothonotary in writing of any change of address from that appearing in the notice of appeal. Dated: Signature of appellant In the presence of: [Qualification of witness: see clause 2(2), Schedule 6, Magistrates' Court Act 1989 as amended by section 116 of the Children and Young Persons Act 1989] * Delete if inapplicable. _______________ Form 58B -- 554 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 524 FORM 58C Rule 58.27(1) NOTICE OF ABANDONMENT OF APPEAL [When sentence of detention imposed] IN THE SUPREME COURT OF VICTORIA AT The name of the appellant is: The name and address of the respondent is: 1. To the Prothonotary at: 2. To the abovenamed respondent: I wish to abandon my appeal against *conviction/*sentence/*order. I give notice of the abandonment of the appeal, particulars of which are set out below: 1. Venue of Children's Court at which *conviction/*sentence/*order was imposed or made: 2. Date of charge: 3. Nature of offence (state shortly): 4. Date of *conviction/*sentence/*order: 5. Particulars of *conviction/*sentence/*order: I acknowledge that the *conviction/*sentence/*order appealed from shall now take effect. [*and I surrender myself to the Prothonotary at .] Dated: Signature of appellant * Delete if inapplicable. _______________ Form 58C -- 555 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 525 FORM 58D Rule 58.27(2) NOTICE OF ABANDONMENT OF APPEAL [Other than when sentence of detention imposed] IN THE SUPREME COURT OF VICTORIA AT The name of the appellant is: The name and address of the respondent is: 1. To the Prothonotary at: 2. To the abovenamed respondent: I wish to abandon my appeal against the order(s) made by the Children's Court. I give notice of the abandonment of the appeal, particulars of which are set out below: 1. Venue of Children's Court at which order(s) made: 2. *Date of charge(s): 3. *Nature of offence (state shortly): 4. Date of order(s) appealed from: 5. Particulars of order(s) [if space insufficient attach extra page(s)] I acknowledge that the order(s) appealed from shall now take effect. Dated: Signature of appellant * Delete if inapplicable. _______________ Form 58D -- 556 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 526 FORM 58E Rule 58.28(1) ORDER STRIKING OUT APPEAL IN THE SUPREME COURT OF VICTORIA AT In the matter of the Children and Young Persons Act 1989 and In the matter of an appeal by [name of appellant] ORDER *Judge/*Prothonotary Date made: The Appellant *failed to appear at the time listed for the hearing of the appeal [or] *abandoned the appeal in accordance with clause 6 of Schedule 6 to the Magistrates' Court Act 1989. THE COURT ORDERS THAT the appeal be struck out. [When a custodial order was imposed in the Children's Court—the Appellant *has/*has not been returned to custody] Date: *Judge/*Prothonotary * Delete if inapplicable. [A copy of this order is to be provided to: The Children's Court The respondent or to the respondent's solicitor]. _______________ Form 58E -- 557 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 527 FORM 58F Rule 58.29(1) NOTICE OF SUPREME COURT'S DECISION ON APPEAL To the Prothonotary at: To the Registrar of the Children's Court at: Regarding an appeal from order(s) recorded at the Children's Court at on [date] Appellant Respondent The details are as follows: Before the Honourable Justice at on [date] . Registrar's Number Order(s) Appealed Against Result of Appeal [When a custodial sentence was imposed or confirmed—the appellant *has/*has not been returned to custody] Associate * Delete if inapplicable. _______________ Form 58F -- 558 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 528 FORM 58G Rule 58.30 APPLICATION TO SET ASIDE ORDER STRIKING OUT APPEAL FOR FAILURE TO APPEAR Appeal No: [date] To: The Prothonotary at and To: The Respondent of Appellant's name Address CHILDREN'S COURT APPEALED FROM: I hereby apply for an order setting aside an order made on [insert date of order] striking out my appeal for my failure to appear. The application is made on the ground that my failure to appear was not due to fault or neglect on my part. (Give details here of reasons for non-appearance) Dated: Signature of Appellant [Notice of this application must be served on the respondent a reasonable time before making of the application and in the same way as a notice of appeal—section 89 of the Magistrates' Court Act 1989] If the Supreme Court grants the application it must order the reinstatement of the appeal subject to the payment of any costs that the Court thinks fit. The Court may also require the appellant to give a further undertaking to prosecute the appeal. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– Form 58G -- 559 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 529 [Office use only] To: 1. The Appellant 2. Prosecuting Agency 3. The Registrar of the Children's Court at The Application for rehearing is listed for at a.m. Prothonotary _______________ Form 58G -- 560 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 530 FORM 58H Rule 58.31(1) APPLICATION FOR REHEARING OF APPEAL [Appeals under section 116 of the Children and Young Persons Act 1989] Appeal No: [date] To: The Prothonotary at and To: The Respondent of Appellant's name Address CHILDREN'S COURT APPEALED FROM: I hereby apply for a rehearing of my appeal which was heard and determined on [insert date] in my absence. The application is made on the ground that my failure to appear was not due to fault or neglect on my part—section 89A(6) of the Magistrates' Court Act 1989. (Give details here of reasons for non-appearance—section 89A(4)(a) of the Magistrates' Court Act 1989) Dated: Signature of Appellant [Notice of this application must be served on the respondent a reasonable time before the making of the application and in the same way as a notice of appeal—section 89A(4)(b) of the Magistrates' Court Act 1989] If the Supreme Court grants the application it must order the reinstatement of the Children's Court order and reinstatement of the appeal subject to the payment of any costs that the Court thinks fit. The Court may also require the appellant to give a further undertaking to prosecute the appeal— section 89A(5)(a) and (b) of the Magistrates' Court Act 1989. Form 58H -- 561 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 531 The granting of the application for rehearing acts as a stay of the order of the Children's Court or the dismissal of the application by the Children's Court— section 89A(5)(c) of the Magistrates' Court Act 1989. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– [Office use only] To: 1. The Appellant 2. Prosecuting Agency 3. The Registrar of the Children's Court at The Application for rehearing is listed for at a.m. Prothonotary _______________ Form 58H -- 562 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 532 FORM 58J Rule 58.31(2) APPLICATION FOR LEAVE TO APPLY OUT OF TIME FOR REHEARING OF APPEAL [Appeals under section 116 of the Children and Young Persons Act 1989] Appeal No: [date] To: The Prothonotary at and To: The Respondent of Appellant's name Address CHILDREN'S COURT APPEALED FROM: I hereby seek leave to apply outside the prescribed period of 30 days from the date of hearing of the appeal for the rehearing of the appeal. My appeal was heard and determined on [insert date] in my absence. The application is made on the ground that my failure to apply for a rehearing of the appeal within 30 days after being notified in writing of the determination of the appeal was due to the following exceptional circumstances—section 89A(3) of the Magistrates' Court Act 1989. State here the exceptional circumstances relied upon Dated: Signature of Appellant Form 58J -- 563 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 533 [Notice of this application must be served on the respondent a reasonable time before the making of the application and in the same way as a notice of appeal—section 89A(4)(b) of the Magistrates' Court Act 1989] ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– [Office use only] To: 1. The Appellant 2. Prosecuting Agency 3. The Registrar of the Children's Court at The Application for Leave is listed for at a.m. Prothonotary __________________ Form 58J -- 564 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 534 FORM 59A Rule 59.05(4) NOTICE OF JUDGMENT [heading as in originating process] To [name] of [address] TAKE NOTICE that— 1. A judgment [or An order] of the Court was given [or made] on [e.g. 20 April 20 ] by which it was [state substance of judgment or order]. 2. From the time of service of this notice you [or some other person, naming that person, as the case may be] will be bound by the judgment [or order] to the same extent as you [or that person] would have been if you [or he] were a party on the day the judgment [or order] was given [or made]. 3. Without filing an appearance, you [or the other person] may apply by summons filed within 28 days after service of this notice for an order that the judgment [or order] be set aside or varied. 4. After filing an appearance, you [or the other person] may attend on the taking of the account or the making of the inquiry under the judgment [or order]. Dated [e.g. 15 June 20 ]. [Signed] _______________ Form 59A -- 565 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 535 FORM 60A Rule 60.08 GENERAL FORM OF JUDGMENT GIVEN [heading as in originating process] JUDGMENT JUDGE [or MASTER]: [e.g. Justice or Master ] DATE GIVEN: [e.g. 20 June 20 ] ORIGINATING PROCESS: [e.g. Writ] [state whether by writ, by originating motion or otherwise] HOW OBTAINED: [e.g. By plaintiff's summons dated 15 June 20 ] [state whether on application by or without summons before trial with date of summons or application, or at trial with date of commencement of trial] ATTENDANCE: [set out attendance or non-attendance of any person entitled to attend and, if attending, whether by counsel or solicitor] OTHER MATTERS: [state any finding of jurisdictional fact, undertaking of party or other matter as directed by Court] THE JUDGMENT OF THE COURT IS THAT: 1. 2. [terms of judgment] 3. DATE AUTHENTICATED: Prothonotary _______________ Form 60A -- 566 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 536 FORM 60B Rule 60.08 GENERAL FORM OF JUDGMENT ENTERED [heading as in originating process] JUDGMENT DATE ENTERED: ORIGINATING PROCESS: [state whether by writ, by originating motion or otherwise] HOW OBTAINED: [state whether in default of appearance or defence or otherwise] THE JUDGMENT OF THE COURT IS THAT: 1. 2. [terms of judgment] 3. Prothonotary _______________ Form 60B -- 567 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 537 FORM 60C Rule 60.08 GENERAL FORM OF ORDER [heading as in originating process] ORDER JUDGE [or MASTER]: DATE MADE: ORIGINATING PROCESS: [state whether by writ, by originating motion or otherwise] HOW OBTAINED: [state whether on application by or without summons, identifying party filing summons or, if no summons, making application, and whether application made before trial with date of summons or application, or at trial with date of commencement of trial] ATTENDANCE: [set out attendance or non-attendance of any person entitled to attend and, if attending, whether by counsel or solicitor] OTHER MATTERS: [state any finding of jurisdictional fact, undertaking of party or other matter as directed by Court] THE COURT ORDERS THAT: 1. 2. [terms of order] DATE AUTHENTICATED: Prothonotary _______________ Form 60C -- 568 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 538 FORM 60D Rule 60.08 JUDGMENT AT TRIAL BY JUDGE WITHOUT A JURY [heading as in originating process] JUDGE: DATE GIVEN: ORIGINATING PROCESS: HOW OBTAINED: Trial without a jury, commenced on [e.g. 15 June 20 ]. ATTENDANCE: OTHER MATTERS: THE JUDGMENT OF THE COURT IS THAT: [e.g.] The defendant personally and by the defendant's servants and agents be perpetually restrained from [as the case may be]. or There be judgment for the defendant together with costs to be taxed. DATE AUTHENTICATED: Prothonotary _______________ Form 60D -- 569 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 539 FORM 60E Rule 60.08 JUDGMENT AT TRIAL BY JUDGE WITH A JURY [heading as in originating process] JUDGE: DATE GIVEN: ORIGINATING PROCESS: HOW OBTAINED: Trial with a jury of six, commenced on , 20 . ATTENDANCE: OTHER MATTERS: [set out findings of jury] THE JUDGMENT OF THE COURT IS THAT: [e.g.] The defendant pay the plaintiff $ and costs to be taxed. or There be judgment for the defendant together with costs to be taxed. DATE AUTHENTICATED: Prothonotary _______________ Form 60E -- 570 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 540 FORM 60F Rule 60.08 JUDGMENT OR ORDER AT TRIAL OF PRELIMINARY QUESTION [heading as in originating process] JUDGE: DATE GIVEN [or MADE]: ORIGINATING PROCESS: HOW OBTAINED: Trial of question pursuant to order [identify order], commenced on ATTENDANCE: OTHER MATTERS: The Court finds that: [state findings of Court] THE JUDGMENT OF THE COURT IS THAT: [e.g.] The defendant pay the plaintiff $ and costs to be taxed. or There be judgment for the defendant together with costs to be taxed. [or THE COURT ORDERS THAT:] [e.g.] The proceeding be set down for trial at [or as the case may be] DATE AUTHENTICATED: Prothonotary _______________ Form 60F -- 571 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 541 FORM 60G Rule 60.08 DEFAULT JUDGMENT FOR DEBT [heading as in originating process] DATE ENTERED: ORIGINATING PROCESS: HOW OBTAINED: In default of appearance [or defence]. THE JUDGMENT OF THE COURT IS THAT: [e.g.] The defendant pay the plaintiff $ and $ costs [or costs to be taxed]. Prothonotary _______________ FORM 60H Rule 60.08 DEFAULT JUDGMENT FOR RECOVERY OF LAND [heading as in originating process] DATE ENTERED: ORIGINATING PROCESS: HOW OBTAINED: In default of appearance [or defence]. THE JUDGMENT OF THE COURT IS THAT: The plaintiff recover possession of the land described in the indorsement of claim on the writ as [description of land*] and that the defendant pay the plaintiff $ costs [or pay the plaintiff's costs to be taxed]. Prothonotary ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– * [Note: The land should be so described as to be physically identifiable.] _______________ Form 60G -- 572 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 542 FORM 60J Rule 60.08 INTERLOCUTORY OR INTERLOCUTORY AND FINAL JUDGMENT FOR DAMAGES IN DEFAULT [heading as in originating process] DATE INTERLOCUTORY JUDGMENT ENTERED: ORIGINATING PROCESS: HOW OBTAINED: In default of appearance [or defence]. THE JUDGMENT OF THE COURT IS THAT: The defendant pay the plaintiff damages to be assessed and $ costs [or costs to be taxed]. JUDGE [or MASTER]: DATE FINAL JUDGMENT GIVEN: HOW OBTAINED: Assessment of damages pursuant to interlocutory judgment. ATTENDANCE: THE JUDGMENT OF THE COURT IS THAT: The defendant pay the plaintiff $ , the amount of the assessed damages and costs to be taxed [or as the case may be] DATE AUTHENTICATED: Prothonotary [Note: This form is a combined form of interlocutory and final judgment. The plaintiff may at the plaintiff's option enter interlocutory judgment by omitting the words below the line in the form and obtain the authentication of a separate final judgment in Form 60K.] _______________ Form 60J -- 573 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 543 FORM 60K Rule 60.08 FINAL JUDGMENT FOR DAMAGES OR VALUE IN DEFAULT [heading as in originating process] JUDGE [or MASTER]: DATE FINAL JUDGMENT GIVEN: ORIGINATING PROCESS: HOW OBTAINED: Assessment of damages [or value] pursuant to interlocutory judgment entered on in default of appearance [or defence]. ATTENDANCE: THE JUDGMENT OF THE COURT IS THAT: The defendant pay the plaintiff $ , the amount of the assessed damages [or the assessed value of $ ] and costs to be taxed [or as the case may be]. DATE AUTHENTICATED: Prothonotary _______________ Form 60K -- 574 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 544 FORM 60L Rule 60.08 INTERLOCUTORY OR INTERLOCUTORY AND FINAL JUDGMENT FOR DETENTION OF GOODS IN DEFAULT [heading as in originating process] DATE INTERLOCUTORY JUDGMENT ENTERED: ORIGINATING PROCESS: HOW OBTAINED: In default of appearance [or defence]. THE JUDGMENT OF THE COURT IS THAT: The defendant deliver to the plaintiff the goods described in the indorsement of claim on the writ as [description of goods] or pay the plaintiff the value of the goods to be assessed [and also damages for their detention to be assessed] and $ costs [or costs to be taxed]. or The defendant pay the plaintiff the value of the goods described in the indorsement of claim on the writ to be assessed [and also damages for their detention to be assessed] and $ costs [or costs to be taxed]. JUDGE [or MASTER]: DATE FINAL JUDGMENT GIVEN: HOW OBTAINED: Assessment of [complete appropriately] pursuant to interlocutory judgment. ATTENDANCE: THE JUDGMENT OF THE COURT IS THAT: The defendant pay the plaintiff $ , the amount of the assessed value of $ [and the assessed damages or the assessed damages] and costs to be taxed [as the case may be] DATE AUTHENTICATED: Prothonotary [Note: This form is a combined form of interlocutory and final judgment. The plaintiff may at the plaintiff's option enter interlocutory judgment by omitting the words below the line in the form and obtain the authentication of a separate final judgment in Form 60K.] _______________ Form 60L -- 575 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 545 FORM 61A Rule 61.02(1)(a) APPLICATION TO MASTER FOR ORDER FOR PAYMENT OF JUDGMENT DEBT BY INSTALMENTS [heading as in originating process] This application is made to a Master by the [judgment creditor or judgment debtor] of [usual place of residence or of business or registered office] with respect to the judgment for the [judgment creditor] against the [judgment debtor] in the Supreme Court dated the [e.g. 20 June 20 ] for $ and costs. $ is now owing under the judgment, being— (a) $ , the amount due under the judgment; (b) $ , the amount of costs; (c) $ , the amount of interest [if capable of calculation where the judgment debtor applies]. The [judgment creditor or judgment debtor] hereby applies for an order for the payment by instalments of the sum owing under the judgment as follows: [state amount of each instalment, weekly, monthly or other period for payment, number of instalments, date of payment of first and last instalment, name and address of person to be paid]. The grounds on which the application is made are [complete appropriately]. The address for service of the [judgment creditor or judgment debtor] is . The usual or last known place of residence or of business or registered office of the [judgment debtor or judgment creditor] is . Dated 20 . Signature of Applicant or Applicant's Solicitor [Note that where the application is made by a judgment debtor, the judgment debtor must file an affidavit of his or her financial situation which gives the information required by Form 72C.] _______________ Form 61A -- 576 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 546 FORM 61B Rule 61.02(1)(b) APPLICATION TO MASTER FOR ORDER IN SUBSTITUTION FOR ORDER FOR PAYMENT OF JUDGMENT DEBT BY INSTALMENTS [heading as in originating process] This application is made to a Master by the [judgment creditor or judgment debtor] of [usual place of residence or of business or registered office] with respect to the judgment for the [judgment creditor] against the [judgment debtor] in the Supreme Court dated [e.g. 20 June 20 ] for $ and costs. On 20 an order was made that the [judgment debtor] pay $ , the sum then owing under the judgment, by instalments as follows: [insert terms of order]. The [judgment debtor] has duly paid the instalments in accordance with the order [or has failed to pay the instalments which under the order were due on and the instalments are now in arrears in the sum of $ ]. $ is now owing under the judgment, being— (a) $ , the amount due under the judgment; (b) $ , the amount of costs; (c) $ , the amount of interest [if capable of calculation where the judgment debtor applies]. The [judgment creditor or judgment debtor] hereby applies, for an order in substitution for the order made on 20 , namely, for an order for the payment of $ , the sum owing under the judgment, by instalments as follows: [state amount of each instalment, weekly, monthly or other period for payment, number of instalments, date of payment of first and last instalment, name and address of person to be paid]. The grounds on which the application is made are [include particulars of any material change in the circumstances of the judgment debtor since the date of the order]. The address for service of the [judgment creditor or judgment debtor] is . Form 61B -- 577 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 547 The usual or last known place of residence or of business or registered office of the [judgment debtor or judgment creditor] is . Dated 20 . Signature of Applicant or Applicant's Solicitor [Note that where the application is made by a judgment debtor, the judgment debtor must file an affidavit of the judgment debtor's financial situation which gives the information required by Form 72C.] _______________ Form 61B -- 578 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 548 FORM 61C Rule 61.02(2) APPLICATION TO THE COURT FOR VARIATION OR CANCELLATION OR ORDER FOR PAYMENT OF JUDGMENT DEBT BY INSTALMENTS [heading as in originating process] This application is made to the Court by the [judgment creditor or judgment debtor] of [usual place of residence or of business or registered office] with respect to the judgment for the [judgment creditor] against the [judgment debtor] in the Supreme Court dated [e.g. 20 June 20 ] for $ and costs. On 20 an order was made that the [judgment debtor] pay $ , the sum then owing under the judgment, by instalments as follows: [insert terms of order]. The [judgment debtor] has duly paid the instalments in accordance with the order [or has failed to pay the instalments which under the order were due on and the instalments are now in arrears in the sum of $ ]. $ is now owing under the judgment, being— (a) $ , the amount due under the judgment; (b) $ , the amount of costs; (c) $ , the amount of interest [if capable of calculation where the judgment debtor applies]. The [judgment creditor or judgment debtor] hereby applies for an order that the order made on 20 be varied as follows: [give particulars of variation sought stating amount of each instalment, weekly, monthly or other period for payment, number of instalments, date of payment of first and last instalment, name and address of person to be paid under the order as varied] [or be cancelled]. The grounds on which the application is made are [Where the judgment debtor applies, give particulars of any material change in the circumstances of the judgment debtor since the date of the order]. [Where the judgment creditor applies, give particulars of any allegation that there has been a substantial increase in the property or means of the judgment debtor or that any information given by the judgment debtor in support of the application for the order for the payment of the judgment debt by instalments or in any agreement for the payment of the judgment debt by instalments was inaccurate]. Form 61C -- 579 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 549 TAKE NOTICE that the application will be heard before the Judge in the Practice Court, Supreme Court, William Street, Melbourne, on 20 at a.m. [or p.m.] or so soon afterwards as the business of the Court allows. The address for service of the [judgment creditor or judgment debtor] is The usual or last known place of residence or of business or registered office of the [judgment debtor or judgment creditor] is . Dated 20 . Signature of Applicant or Applicant's Solicitor [Note that where the application is made by a judgment debtor, the judgment debtor must file an affidavit of the judgment debtor's financial situation which gives the information required by Form 72C.] _______________ Form 61C -- 580 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 550 FORM 61D Rule 61.02(5) ORDER RELATING TO PAYMENT OF JUDGMENT DEBT BY INSTALMENTS [heading as in originating process] [follow Form 60C except as below] THE COURT ORDERS THAT: The [judgment debtor] pay to the [judgment creditor] $ , being the sum owing in respect of a judgment for the [judgment creditor] against the [judgment debtor] dated [e.g. 20 June 20 ] by instalments as follows: [state amount of each instalment, weekly, monthly or other period for payment, number of instalments, date of payment of first and last instalment, name and address of person to be paid]. or The following order be substituted for the order made on , 20 that the [judgment debtor] pay by instalments $ which was then owing under a judgment for the [judgment creditor] against the [judgment debtor] dated [e.g. 20 June 20 ]: [complete appropriately] or The order made on 20 that the [judgment debtor] pay by instalments $ which was then owing under a judgment for the [judgment creditor] against the [judgment debtor] dated [e.g. 20 June 20 ] be varied as follows: [complete appropriately] or The order made on 20 that the [judgment debtor] pay by instalments $ which was then owing under a judgment for the [judgment creditor] against the [judgment debtor] dated [e.g. 20 June 20 ] be cancelled [or be confirmed and the application dismissed]. _______________ Form 61D -- 581 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 551 FORM 61E Rule 61.02(6) NOTICE OF ORDER OR REFUSAL OF ORDER BY MASTER FOR PAYMENT OF JUDGMENT DEBT BY INSTALMENTS [heading as in originating process] To the [judgment creditor] And to the [judgment debtor] TAKE NOTICE that on 20 I made an order on the application of the [judgment creditor or judgment debtor] that the [judgment debtor] pay to the [judgment creditor] $ , being the sum owing under a judgment for the [judgment creditor] against the [judgment debtor] dated [e.g. 20 June 20 ] by instalments as follows: [state amount of each instalment, weekly, monthly or other period of payment, number of instalments, date of payment of first and last instalment, name and address of person to be paid]. or that on 20 I refused an application by the [judgment creditor or judgment debtor] for an order that the [judgment debtor] pay by instalments $ , being the sum owing under a judgment for the [judgment creditor] against the [judgment debtor] dated [e.g. 20 June 20 ]. Dated 20 . Master Note: If you are dissatisfied with the order or refusal referred to in this Notice you may file a Notice of Objection with the Associate of the Master within 14 days after receipt by you of this Notice. The Notice of Objection should be in Form No. 61F of Chapter I of the Rules of the Supreme Court. _______________ Form 61E -- 582 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 552 FORM 61F Rule 61.02(7) NOTICE OF OBJECTION [heading as in originating process] To Master TAKE NOTICE that the [judgment creditor or judgment debtor] of [usual place of residence or of business or registered office] hereby objects to the order made on 20 that [complete appropriately]. or to the refusal on 20 of an application by the [judgment creditor or judgment debtor] for an order that [complete appropriately]. The address for service of the [judgment creditor or judgment debtor] is . Dated 20 . Signature of Objector or Objector's Solicitor _______________ Form 61F -- 583 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 553 FORM 61G Rule 61.02(9) NOTICE OF HEARING OF OBJECTION [heading as in originating process] To the [judgment creditor] And to the [judgment debtor] TAKE NOTICE that the [judgment creditor or judgment debtor] has filed notice of objection to an order of Master made on 20 on the application of the [judgment creditor or judgment debtor] that [complete appropriately] [or to the refusal by Master on 20 of an application by the [judgment creditor or judgment debtor] for an order that [complete appropriately]. The objection will be heard before the Judge in the Practice Court, Supreme Court, William Street, Melbourne, on 20 at a.m. [or p.m] or so soon afterwards as the business of the Court allows. Dated 20 . Master _______________ Form 61G -- 584 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 554 FORM 61H Rule 61.02(10) NOTICE BY COURT RELATING TO PAYMENT OF JUDGMENT DEBT BY INSTALMENTS [heading as in originating process] To the [judgment creditor] And to the [judgment debtor] THIS NOTICE is given in relation to the judgment dated [e.g. 20 June 20 ] by which it was adjudged that the [judgment debtor] pay to the [judgment creditor] $ and costs. [to be completed where a Master has refused to order the payment of the judgment debt by instalments] On 20 Master refused an application by the [judgment creditor or judgment debtor] for an order that the [judgment debtor] pay the sum owing under the judgment by instalments. TAKE NOTICE that the [judgment creditor or judgment debtor] filed notice of objection to the refusal of the Master and that on 20 the Court made an order that the [judgment debtor] pay to the [judgment creditor] $ , being the sum owing under the judgment by instalments as follows: [state amount of each instalment, weekly, monthly or other period for payment, number of instalments, date of payment of first and last instalment, name and address of person to be paid] [or the Court refused to make an order that the [judgment debtor] pay the sum owing under the judgment by instalments]. [to be completed where a Master has ordered the payment of the judgment debt by instalments] On 20 Master , on the application of the [judgment creditor or judgment debtor], made an order that the [judgment debtor] pay the sum owing under the judgment by instalments as follows: [state amount of each instalment, weekly or monthly or other period for payment, number of instalments, date of payment of first and last instalment, name and address of person to be paid]. Form 61H -- 585 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 555 TAKE NOTICE that the [judgment creditor or judgment debtor] filed notice of objection to the order of the Master and that on 20 the Court made an order that the order of the Master be confirmed [or varied as follows: complete appropriately] [or cancelled]. Dated 20 . By the Court Prothonotary _______________ Form 61H -- 586 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 556 FORM 61J Rule 61.03(1) INSTALMENT AGREEMENT [heading as in originating process] 1. This agreement is made between the [judgment creditor] of [usual place of residence or of business or registered office] and the [judgment debtor] of [usual place of residence or of business or registered office] with respect to the judgment for the [judgment creditor] against the [judgment debtor] in the Supreme Court dated [e.g. 20 June 20 ] for $ and costs. 2. $ is owing under the judgment, being— (a) $ , the amount due under the judgment; (b) $ , the amount of costs; (c) $ , the amount of interest. 3. The parties hereby agree that the [judgment debtor] shall pay and the [judgment creditor] will accept payment of $ , being the sum owing under the judgment, by instalments as follows: (a) Number of instalments: (b) Amount of each instalment: (c) Weekly, monthly or other period for payment: (d) Date of payment of— first instalment: last instalment: (e) Name and address of person to whom payment to be made: Form 61J -- 587 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 557 4. The [judgment debtor] acknowledges that he, she or it is aware that upon filing of this agreement an order will be made in the terms of this agreement and that for a breach thereof he, she or it may be required to attend before the Court. Dated 20 . Signed by the judgment creditor: Witness: Signed by the judgment debtor: Witness: _______________ Form 61J -- 588 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 558 FORM 61K Rule 61.03(4) ORDER FOR INSTALMENT PAYMENT OF JUDGMENT DEBT AFTER AGREEMENT [heading as in originating process] [follow Form 60C except as below] THE COURT ORDERS THAT: In accordance with an agreement dated 20 made between the [judgment creditor] and the [judgment debtor] under the Judgment Debt Recovery Act 1984 and filed the [judgment debtor] pay to the [judgment creditor] $ , being the sum owing under a judgment for the [judgment creditor] against the [judgment debtor] dated [e.g. 20 June 20 ], by instalments as follows: [state amount of each instalment, weekly, monthly or other period for payment, number of instalments, date of payment of first and last instalment, name and address of person to be paid]. _______________ Form 61K -- 589 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 559 FORM 61L Rule 61.03(5) NOTICE OF ORDER FOR INSTALMENT PAYMENT OF JUDGMENT DEBT AFTER AGREEMENT [heading as in originating process] To the [judgment creditor] And to the [judgment debtor] TAKE NOTICE that on 20 , in accordance with an agreement dated 20 made between the [judgment creditor] and the [judgment debtor] under the Judgment Debt Recovery Act 1984 and filed, I made an order that the [judgment debtor] pay to the [judgment creditor] the sum of $ , being the sum owing under a judgment for the [judgment creditor] against the [judgment debtor] dated [e.g. 20 June 20 ] by instalments as follows: [state amount of each instalment, weekly, monthly or other period for payment, number of instalments, date of payment of first and last instalment, name and address of person to be paid]. Dated 20 . Master _______________ Form 61L -- 590 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 560 FORM 61M Rule 61.04(1) SUMMONS TO ATTEND FOR ORAL EXAMINATION (Judgment Debt Recovery Act 1984) [heading as in originating process] To the [judgment debtor] You are summoned to attend before the Court to be orally examined as to any matter related to your financial circumstances generally and your means and ability to satisfy the judgment against you in favour of the [judgment creditor] dated [e.g. 20 June 20 ] under which judgment $ is owing. Your examination is required for the purpose of your application [or an application by the judgment creditor] for an order that the sum of $ be paid by instalments [or for an order that an order made on 20 that the [judgment debtor] pay by instalments $ , being the sum owing under the judgment, be confirmed or varied or cancelled]. or Your examination is required with respect to an allegation made by the [judgment creditor] that you have defaulted in the payment of instalments under an order made on 20 that you pay by instalments $ , being the sum owing under a judgment against you in favour of the [judgment creditor] dated [e.g. 20 June 20 ]. You are required to produce to the Court on the examination the following documents: [description of documents]. The examination will be held before the Judge in the Practice Court, Supreme Court, William Street, Melbourne [or the Master in Court No. , Supreme Court, 436 Lonsdale Street, Melbourne], on 20 at a.m. [or p.m.] or so soon afterwards as the business of the Court allows. Issued 20 . By the Court Prothonotary Note: If you do not attend the Court as directed by this summons, the Court may issue a warrant for your arrest. _______________ Form 61M -- 591 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 561 FORM 61N Rule 61.04(4) WARRANT OF APPREHENSION ON DISOBEDIENCE TO SUMMONS [heading as in originating process] To all members of the Police Force of the State of Victoria. Whereas [name of judgment debtor] of [address] has failed to attend before the Supreme Court at the time and place appointed by the summons issued on 20 to be examined concerning his or her financial circumstances: I do hereby authorise you to enter and search by day or by night any dwelling-house, tenement, ship or place whatsoever [or the dwelling-house or tenement or ship situated at ] wherein the said person is suspected to be [or to be concealed or to be unlawfully detained] using all necessary force for that purpose and if necessary to break any outer door or window and to apprehend him or her and to bring him or her before the [continue as in Form 61M, specifying the time and place as required by section 14(3) or 17(3)]. Issued 20 . By the Court Prothonotary _______________ Form 61N -- 592 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 562 FORM 61P Rule 61.04(6) NOTICE TO JUDGMENT CREDITOR OF SUMMONS OR WARRANT TO JUDGMENT DEBTOR [heading as in originating process] To the [judgment creditor] of [address] TAKE NOTICE that on 20 a summons was issued requiring the [judgment debtor] to attend before the Court to be orally examined for the purpose of an application by the [judgment creditor or judgment debtor] with respect to the payment by instalments of the sum owing under the judgment for the [judgment creditor] against the [judgment debtor] dated [e.g. 20 June 20 ] for $ and costs. or TAKE NOTICE that on 20 a warrant was issued for the apprehension of the [judgment debtor] for his or her failure to comply with a summons requiring him or her to attend before the Court on 20 to be orally examined for the purpose of an application by the [judgment creditor or judgment debtor] with respect to the payment by instalments of the sum owing under the judgment for the [judgment creditor] against the [judgment debtor] dated [e.g. 20 June 20 ] for $ and costs. By the summons [or the warrant] the [judgment debtor] is required to attend [or be brought] before the [continue as in Form 61M, specifying the time and place as required by section 14(3) or 17(3)]. Dated 20 . Master _______________ Form 61P -- 593 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 563 FORM 61Q Rule 61.05 NOTICE BY COURT OF CONFIRMATION, VARIATION OR CANCELLATION OF JUDGMENT DEBT INSTALMENT ORDER [heading as in originating process] To the [judgment creditor] And to the [judgment debtor] THIS NOTICE is given in relation to the default by the [judgment debtor] in the payment of instalments under an order made on 20 that the [judgment debtor] pay by instalments $ , being the sum owing under a judgment for the [judgment creditor] against the [judgment debtor] dated [e.g. 20 June 20 ]. TAKE NOTICE that on 20 , after examining the [judgment debtor], the Court made an order that the said order for payment by instalments be confirmed [or varied as follows: complete appropriately] [or cancelled]. Dated 20 . By the Court Prothonotary _______________ Form 61Q -- 594 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 564 FORM 61R Rule 61.07(2) CERTIFICATE OF PAYMENT [heading as in originating process] To the Governor of the prison at Whereas by virtue of an order for imprisonment made by the Supreme Court on 20 [name of judgment debtor] of [address] was committed to prison at : This is therefore to certify that the said [name of judgment debtor] has paid the instalments of which default was made and is now entitled to be discharged out of custody. Dated 20 . Master _______________ Form 61R -- 595 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 565 FORM 63A Rule 63.38(3) SUMMONS FOR TAXATION OF COSTS [heading as in originating process] To: [identify each party or other person to whom summons is addressed and state address of each person not a party]. You are summoned to attend before the Taxing Master, Court No. , Supreme Court, 436 Lonsdale Street, Melbourne on 20 at a.m. [or p.m.] on the hearing of an application by [identify party] for the costs which are payable to [that party] by [identify party liable for costs] under [identify the judgment, etc. by which payable] to be taxed in accordance with the bill of costs served on 20 [or herewith]. Filed [e.g. 15 June 20 ]. This summons was filed by of , solicitor for the . TAKE NOTICE that whether or not you attend on the day for hearing referred to above the costs claimed in the bill may be allowed unless at least seven days before that day you file and serve on the [identify party] a notice identifying each item in the bill to which you object. _______________ FORM 64A Rule 64.04(5) NOTICE OF ADDRESS FOR SERVICE [Heading as in notice of appeal or cross-appeal] The address in Victoria for service of [full name of person or party] is: [If the person or party is legally represented] The name or firm and the business address within Victoria of the solicitor for [full name of person or party] is: Dated: [e.g. 15 June 20 ]. [signed] _______________ Form 63A -- 596 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 566 FORM 68A Rule 68.08 WARRANT OF SEIZURE AND SALE [heading as in originating process] TO THE SHERIFF: In respect of the judgment [or order] dated [e.g. 20 June 20 ] by which it was adjudged [or ordered] that [judgment debtor] pay $ to [judgment creditor] together with costs, which have been taxed at $ , [or by which it was ordered that] [judgment debtor] pay certain costs to [judgment creditor], which have been taxed at $ , Levy On The Property Of [judgment debtor] which is authorised by law to be taken in execution for— (a) $ , being $ now due and payable exclusive of taxed costs and $ for taxed costs; [or $ for taxed costs]; (b) $ , being interest at the rate or rates fixed in accordance with law, on [amount due and payable exclusive of taxed costs] from the date of the judgment [or order]; (c) $ , being interest at the rate or rates fixed in accordance with law, on [amount of taxed costs] from 20 [date of taxation of costs]; (d) $ , being the costs of this [and of any prior] warrant and (e) your fees and expenses for this [and for any prior] warrant, And Pay the amount so levied other than your fees and expenses to [judgment creditor] or otherwise as the law requires And Indorse on this warrant immediately after you have performed all your obligations under it a statement of the date, time and place at which you have executed or attempted to execute the warrant and the results of the execution and send a copy of the statement to [judgment creditor]. Issued 20 . By the Court Prothonotary Issued at the request of [judgment creditor]. The last known address of [judgment debtor] is [add if it is different and the address of the place where it is believed the property of [judgment debtor] may be found is ]. _______________ Form 68A -- 597 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 567 FORM 68B Rule 68.08 WARRANT OF POSSESSION [heading as in originating process] TO THE SHERIFF: In respect of the judgment dated [e.g. 20 June 20 ] by which it was adjudged that [identify party or other person for whom judgment was entered or given] recover possession of the land described in the schedule and that [identify party or other person against whom judgment was entered or given] pay [identify party or other person] costs [or pay $ to the [identify party or other person] together with costs], which have been taxed at $ , Enter The Land and cause [identify party or other person] to have possession of it, and levy on the property of [identify party or other person] which is authorised by law to be taken in execution for [continue as in Form 68A according to whether the levy is for a judgment amount and costs or for costs only] And Indorse [continue as in Form 68A]. SCHEDULE [Describe land as in judgment] Issued 20 . By the Court Prothonotary Issued at the request of [identify party or other person for whom judgment was entered or given]. The last known address of [continue as in Form 68A]. _______________ Form 68B -- 598 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 568 FORM 68C Rule 68.08 WARRANT OF DELIVERY [heading as in originating process] TO THE SHERIFF: In respect of the judgment [or order] dated [e.g. 20 June 20 ] by which it was adjudged [or ordered] that [identify party or other person against whom judgment was entered or given or order made] deliver the goods described in the schedule to [identify party or other person for whom judgment was entered or given or order made] and pay [$ damages for their detention and] costs, which have been taxed at $ , Cause The Goods To Be Delivered to [identify party or other person] And Levy on the property of [identify party or other person] which is authorised by law to be taken in execution [continue as in Form 68A according to whether the levy is for a judgment amount and costs or for costs only] And Indorse [continue as in Form 68A]. or [where judgment or order is for delivery of goods or payment of their assessed value with or without an award of damages for their detention:] In respect of the judgment [or order] dated [e.g. 20 June 20 ] by which it was adjudged [or ordered] that [identify party or other person] do deliver the goods described in the schedule to [identify party or other person] or pay $ their assessed value [and $ damages for their detention] and costs, which have been taxed at $ , Cause The Goods To Be Delivered to [identify party or other person] And Levy on the property of [identify party or other person], which is authorised by law to be taken in execution— (a) if you cannot cause the goods to be so delivered, for $ [assessed value of the goods]; (b) for $ , being $ [amount of damages] due and payable exclusive of taxed costs and $ for taxed costs; [or (c) for $ for taxed costs;] [continue as in Form 68A according to whether the levy is for interest on damages and costs or on costs only] And Indorse [continue as in Form 68A]. Form 68C -- 599 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 569 SCHEDULE [Describe goods as in judgment] Issued 20 . By the Court Prothonotary Issued at the request of [identify party or other person]. The last known address of [continue as in Form 68A]. _______________ Form 68C -- 600 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 570 FORM 69A Rule 69.06(3) ADVERTISEMENT OF SALE BY THE SHERIFF On 20 at a.m. [or p.m.] at (unless process is stayed or satisfied) all the estate and interest (if any) of the [debtor] of as [proprietor of an estate in fee simple in the land described in Certificate of Title Volume Folio upon which is erected a brick factory known as No. Street ]. [Registered Mortgage No. affects the said estate and interest]. Terms: Cash only. Sheriff _______________ Form 69A -- 601 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 571 FORM 71A Rule 71.06(2) GARNISHEE SUMMONS Between A.B. Judgment creditor and C.D. Judgment debtor and X.Y. Garnishee To [name of garnishee] of [address]. You are summoned to attend before the Court on the hearing of an application by the judgment creditor for an order that you, the garnishee, pay to the judgment creditor the debt due from you to the judgment debtor [or the debt which will become due from you to the judgment debtor on 20 ] [or pay to the judgment creditor in such amount or amounts and at such time or times as the Court may direct the debt accruing from you to the judgment debtor] [or the debt which will accrue from you to the judgment debtor on 20 ] or so much thereof as may be sufficient to satisfy a judgment recovered against the judgment debtor by the judgment creditor in the Court on [e.g. 20 June 20 ] for $ , interest accrued and accruing on the judgment and the costs of the judgment creditor of the garnishee proceedings. The sum required to satisfy the judgment, interest and costs is $ , being— (a) $ , the amount due and unpaid under the judgment; (b) $ , the amount of interest accrued and accruing; (c) $ , the costs of the garnishee proceedings. The debt in respect of which this summons is filed and served is [identify the debt in accordance with Rule 71.06(1)]. This summons is filed and served by order of the Court made on , 20 . The application will be heard on etc. [continue as in Form 46A]. Form 71A -- 602 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 572 [insert the following at end of summons] TAKE NOTICE [where the debt is due or accruing] that upon service of this summons the debt shall be bound in your hands to the extent of the whole amount of the debt, namely, $ [or to the extent of $ ] to answer the sum of $ required to satisfy the judgment, interest and costs. [or where the debt is not yet due or accruing] TAKE NOTICE that in the event that the debt becomes due or accrues before the day for hearing named in the summons upon its becoming due or accruing the debt shall be bound in your hands to the extent of the whole amount of the debt, namely, $ [or to the extent of $ ] to answer the sum of $ required to satisfy the judgment, interest and costs. _______________ Form 71A -- 603 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 573 FORM 71B Rule 71.09(4) GARNISHEE ORDER (where garnishee debt less than judgment debt, interest and judgment creditor's costs) [heading as in Form 71A] [other particulars as in Form 60L] THE COURT ORDERS THAT: 1. The garnishee [where appropriate insert here (after deducting therefrom $ for the garnishee's costs of the garnishee application)] do forthwith pay to the judgment creditor $ , the debt due from him, her or it to the judgment debtor and that in default of payment execution may issue against the garnishee. [or where the debt is not due but accruing] do pay to the judgment creditor $ , the debt accruing from him, her or it to the judgment debtor, as follows [state the amount or amounts to be paid and the time or times of payment as directed by the Court] and that in default of payment execution may issue against the garnishee. 2. $ , the costs of the judgment creditor of the garnishee application, be added to the judgment debt and the interest accrued thereon and be retained by the judgment creditor out of the money recovered by him, her or it under this order in priority to the judgment debt and interest. _______________ Form 71B -- 604 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 574 FORM 71C Rule 71.09(4) GARNISHEE ORDER (where garnishee debt greater than judgment debt, interest and judgment creditor's costs) [heading as in Form 71A] [other particulars as in Form 60C] THE COURT ORDERS THAT: 1. The garnishee do forthwith pay to the judgment creditor $ , being so much of the debt due from him, her or it to the judgment debtor as is sufficient to satisfy the judgment debt, the interest accrued thereon and the costs of the judgment creditor of the garnishee proceedings and that in default of payment execution may issue against the garnishee. [or where the debt is not due but accruing] do pay to the judgment creditor $ , being so much of the debt accruing from him, her or it to the judgment debtor as is sufficient to satisfy the judgment debt, the interest accrued thereon and the costs of the judgment creditor of the garnishee proceedings as follows [state the amount or amounts to be paid and the time or times of payment as directed by the Court] and that in default of payment execution may issue against the garnishee. [where appropriate add] 2. The garnishee be at liberty to retain $ for the garnishee's costs of the garnishee proceedings out of the balance of the debt due [or accruing] from him, her or it to the judgment debtor. _______________ Form 71C -- 605 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 575 FORM 72A Rule 72.02(3) ATTACHMENT OF EARNINGS SUMMONS [heading as in originating process] To the [judgment debtor] of [address] You are summoned to attend before the Court on the hearing of an application by the [judgment creditor] for an order that the earnings of the [judgment debtor] be attached to satisfy the judgment against the [judgment debtor] in favour of the [judgment creditor] in the Supreme Court dated [e.g. 20 June 20 ] for $ , in respect of which judgment $ is due and unpaid, being— (a) $ , the amount due under the judgment; (b) $ , the amount of costs; (c) $ , the amount of interest. The application will be heard [continue as in Form 46A]. _______________ Form 72A -- 606 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 576 FORM 72B Rule 72.02(3) AFFIDAVIT IN SUPPORT OF APPLICATION FOR ATTACHMENT OF EARNINGS ORDER [heading as in originating process] I, of , the [judgment creditor], make oath and say that: 1. By a judgment dated [e.g. 20 June 20 ] it was adjudged that the [judgment debtor] should pay to me the sum of $ together with costs. 2. $ is due and unpaid in respect of the judgment, being— (a) $ , the amount due under the judgment; (b) $ , the amount of costs; (c) $ , the amount of interest. or The [judgment debtor] has persistently failed to comply with an order with respect to the judgment made by the Supreme Court on 20 that the [judgment debtor] [insert terms of order not complied with]. 3. The [judgment debtor] is employed by of as a [occupation]. 4. No warrant committing the [judgment debtor] to prison under the Imprisonment of Fraudulent Debtors Act 1958 has been issued. or A warrant committing the [judgment debtor] to prison under the Imprisonment of Fraudulent Debtors Act 1958 has been issued and has not been executed. Sworn etc. _______________ Form 72B -- 607 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 577 FORM 72C Rule 72.02(4) JUDGMENT DEBTOR'S STATEMENT OF FINANCIAL SITUATION [heading as in originating process] To the [judgment debtor]: of [address] TAKE NOTICE that you should complete this form by giving the information requested below. The completed form signed by you must be sent to the [judgment creditor] at [address for service] before 20 [day for hearing named in the summons]. If you do not do this, the Court may make an order that you attend before the Court and give the information. Signature of judgment creditor's solicitor: 1. Amount and Source of Weekly Income Occupation: ____________________ If working for an employer: Name and address of employer: Gross wage: Current overtime (if any): Car and other allowances and commission: If self-employed or in partnership: Average pre-tax earnings for last 12 months: If unemployed: State length of last employment, date when last employment ceased and gross weekly amount earned: _____________________________ Pension or other benefit received: Workers' compensation received: Maintenance received: Superannuation received: Board or rent received: Average weekly interest on bank or other authorised deposit-taking institution deposit, debentures etc.: Form 72C -- 608 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 578 Average weekly dividend on shares: Other income (give particulars): Total Gross Weekly Income: 2. Property and Assets Land, including vacant land: For each piece of land— Market value:_________________ Amount of mortgage:_________________ Net value: Motor vehicle: For each motor vehicle— Year, make and model:_________________ Market value:_________________ Amount owing to finance company: Net value: Deposit in bank, other authorised deposit-taking institution, etc.: Other investments including shares, debentures, bonds: Money owing to you: From , $ From , $ Total: Value of interest in partnership or business: Furniture, household and personal goods: Market value: Amount owing to finance company: Net value: Life insurance policies: Give particulars and state surrender value of each policy: Other assets (give particulars): Total Property and Assets: Form 72C -- 609 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 579 3. Debts, Liabilities and Other Financial Obligations (a) Weekly expenses Income tax: Superannuation: Housing (mortgage, rent, board, hospital or institution): Municipal rates: Water and sewerage rates: Land tax: Child care expenses incurred for the purpose of earning income: Maintenance actually paid: Instalment payments such as for household goods or tools of trade: To , $ To , $ Total: Electricity and gas: Food: Other general household expenses: Motor vehicle expenses (registration, insurance, maintenance, fuel): Fares: Telephone: Insurance policy premiums: School fees and other school expenses: Clothing and shoes: Medical and chemist expenses: Entertainment: Payments on court orders and fines: Other expenses (give particulars): Total: Form 72C -- 610 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 580 (b) Other debts outstanding Give particulars of debts under hire purchase, leasing, credit card or other credit contracts, department store accounts, guarantee or personal loan: $ , to , due on $ , to , due on Total: 4. If any of the assets referred to in paragraph 2 above is owned jointly, identify each asset and give the name of the other owner or owners: 5. If any of the debts referred to in paragraph 3 is due jointly, identify each debt and give the name of the other debtor or debtors: 6. Give particulars of any other circumstances which affect the financial situation of the judgment debtor such as the number and age of dependants, marital status and health: Signature of judgment debtor: Date: _______________ Form 72C -- 611 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 581 FORM 72D Rule 72.04(7) SUMMONS FOR AN ORDER TO ATTEND FOR EXAMINATION OR FURNISH PARTICULARS [heading as in originating process] To: the [judgment debtor] or [person indebted to or employer of judgment debtor] of [address]. You are summoned to attend before the Court on the hearing of an application by the [judgment creditor] for an order that [set out the order sought]. The application will be heard [continue as in Form 46A]. _______________ Form 72D -- 612 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 582 FORM 72E Rule 72.04(7) AFFIDAVIT IN SUPPORT OF SUMMONS FOR AN ORDER TO ATTEND FOR EXAMINATION OR FURNISH PARTICULARS [heading as in originating process] I, of , the [judgment creditor], make oath and say that: 1. By a judgment dated [e.g. 20 June 20 ] it was adjudged that the [judgment debtor] should pay to me $ together with costs. 2. $ is due and unpaid in respect of the judgment the sum, being— (a) $ , the amount due under the judgment; (b) $ , the amount of costs; (c) $ , the amount of interest. or The [judgment debtor] has persistently failed to comply with an order with respect to the judgment made by the Supreme Court on 20 that the [judgment debtor] [insert terms of order not complied with]. 3. I seek to obtain an order for the attachment of the earnings of the [judgment debtor]. 4. The place of residence of the [judgment debtor] is . 5. On 20 I was informed by of and verily believe that the [judgment debtor] is employed by of as a [occupation] and is a person to whom earnings are payable or likely to become payable by the said employer. or On 20 I was informed by of and verily believe that the [judgment debtor] is employed by and is a person to whom earnings are payable or likely to become payable, but I do not know the name or whereabouts of the employer of the [judgment debtor] or what the earnings of the [judgment debtor] are. Sworn etc. _______________ Form 72E -- 613 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 583 FORM 72F Rule 72.04(8) ORDER THAT JUDGMENT DEBTOR ATTEND OR GIVE STATEMENT [heading as in originating process] [Follow Form 81C except as below.] HOW OBTAINED: Summons by the [judgment creditor] dated 20 in aid of an application for an attachment of earnings order against the [judgment debtor] in respect of a judgment dated [e.g. 20 June 20 ] for $ together with costs. THE COURT ORDERS THAT: The [judgment debtor] attend before the Master in Court No. , Supreme Court, 436 Lonsdale Street, Melbourne, on 20 at a.m. to be examined concerning the means and ability of the [judgment debtor] or comply with the judgment [or to state to the Court the following particulars, namely: [complete appropriately]. or The [judgment debtor] furnish to the Court on or before 20 a statement in writing signed by the [judgment debtor] setting forth the following particulars, namely: [complete appropriately]. _______________ Form 72F -- 614 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 584 FORM 72G Rule 72.04(8) ORDER THAT PERSON INDEBTED TO OR EMPLOYER OF JUDGMENT DEBTOR GIVE STATEMENT [heading as in originating process] [Follow Form 60C except as below.] HOW OBTAINED: Summons by the [judgment creditor] dated 20 in aid of an application for an attachment of earnings order against the [judgment debtor] in respect of a judgment dated [e.g. 20 June 20 ] for $ together with costs. OTHER MATTERS: It was made to appear to the Court that is indebted to [or is the employer of] the [judgment debtor]. THE COURT ORDERS THAT: give to the Court on or before 20 a statement in writing signed by that person or on that person's behalf containing the following particulars of that person's indebtedness to the [judgment debtor] that became payable during the period 20 to 20 . [complete appropriately]. _______________ Form 72G -- 615 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 585 FORM 72H Rule 72.05(6) ATTACHMENT OF EARNINGS ORDER [heading as in originating process] [Follow Form 60C except as below.] OTHER MATTERS: The Court finds that: 1. By a judgment dated [e.g. 20 June 20 ] it was adjudged that the [judgment debtor] pay to the [judgment creditor] $ together with costs. 2. $ is due and unpaid in respect of the judgment. or 2. The [judgment debtor] has persistently failed to comply with an order with respect to the judgment made by the Court on 20 that the [judgment debtor] [insert terms of order not complied with]. 3. The [judgment debtor] was served with a copy of the summons herein and has had a reasonable opportunity of attending the hearing. 4. The [judgment debtor] is employed by at in the State of Victoria as a [occupation] and is a person to whom earnings are payable or are likely to become payable by that employer. THE COURT ORDERS THAT: 1. the abovenamed employer on each pay-day whilst the [judgment debtor] is employed by the employer or until this order ceases to have effect do make payments out of the earnings of the [judgment debtor] at the rate calculated in accordance with this order to [name and address of person to whom payments are to be made] for or towards securing payment of $ , being the amount of $ due and unpaid in respect of the judgment and the amount of $ for costs. 2. For the purpose of calculating the normal deduction for the purposes of paragraph 4 of this order the normal deduction rate shall be $ each pay-day [or on the pay-day(s) falling on 20 and thereafter $ each pay-day]. 3. The protected earnings rate, that is, the rate below which the earnings of the [judgment debtor] may not be reduced by a payment under this order, shall be $ in respect of each pay-day. Form 72H -- 616 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 586 4. [The employer] shall, in respect of each pay-day whilst the order is in force, if the net earnings of the [judgment debtor] exceed the sum of— (a) the protected earnings of the [judgment debtor]; and (b) so much of any amount by which the net earnings that became payable on any previous pay-day were less than the protected earnings in relation to that pay-day as has not been made good on any previous pay-day— pay, so far as that excess permits, to the [judgment creditor] the normal deduction in relation to that pay-day and so much of the normal deduction in relation to any previous pay-day as was not paid on that pay-day and has not been paid on any other previous pay-day. Note: an attachment of earnings order does not come into force until the expiration of seven days after the day on which the order is served on the person to whom the order is directed. _______________ Form 72H -- 617 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 587 FORM 72J Rule 72.06(3) NOTICE TO EMPLOYER [heading as in originating process] The attachment of earnings order served herewith requires you to deduct from any earnings becoming payable to the [judgment debtor] as your employee, from pay-day to pay-day until the order is discharged or suspended, the amount referred to in the order as the normal deduction, and to pay that amount to of towards securing payment of $ , being the amount of $ due and unpaid in respect of the judgment referred to in the order and $ for costs. "Earnings" in relation to the [judgment debtor] means any amounts payable to the [judgment debtor]— (a) by way of wages or salary, including any fees, bonus, commission, overtime pay or other emoluments payable in addition to wages or salary; or (b) by way of pension, including— (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 employment— but does not include any pension payable to the [judgment debtor] under the Social Security Act 1991 of the Commonwealth or the Veterans' Entitlements Act 1986 of the Commonwealth. Where two or more attachment of earnings orders are directed to you with respect to earnings payable or likely to become payable by you to the [judgment debtor], you are required to— (a) comply with those orders according to the respective dates on which they took effect, and disregard any order until an earlier order has been complied with; and (b) comply with any order as if the earnings to which it relates were the residue of the earnings of the [judgment debtor] after the making of any payment under an earlier order. You are required to give the [judgment debtor] a notice specifying particulars of the payments made by you under the attachment of earnings order. Form 72J -- 618 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 588 In addition to deducting the amount required to be deducted under an attachment of earnings order, you are entitled to make a further deduction of $3 from the earnings of the [judgment debtor] towards the clerical and administrative costs of making payments under the order. You are required to give the [judgment debtor] notice of the amount deducted for this purpose. If you are in doubt whether payments to the [judgment debtor] of a particular class or description are earnings for the purpose of the attachment of earnings order you may apply to the Court to have that question determined. You must give notice in writing to the Prothonotary— (a) if you are not the employer of the judgment debtor at the time the order is served, forthwith after service; (b) if you are the employer of the judgment debtor at the time the order is served, but cease to be employer thereafter, forthwith after you cease to be employer. Any person who dismisses an employee, injures an employee in his or her employment or alters his or her position to his or her prejudice because an attachment of earnings order has been made or because the person is required to make payments under the order in relation to the employee may be dealt with as for contempt of court. Dated 20 . Prothonotary _______________ Form 72J -- 619 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 589 FORM 72K Rule 72.06(3) NOTICE BY EMPLOYER THAT JUDGMENT DEBTOR IS NOT IN EMPLOYER'S EMPLOY [heading as in originating process] To the Prothonotary, And to the [judgment creditor] of [address]. Whereas an order was made on 20 that I make payments to the [judgment creditor] out of the earnings of the [judgment debtor] I hereby give notice that I am not the employer of the [judgment debtor] [or I ceased to be the employer of the [judgment debtor] on 20 .] Dated 20 . [Signature of Employer] _______________ Form 72K -- 620 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 590 FORM 72L Rule 72.11(3) NOTICE OF CESSATION OF ATTACHMENT OF EARNINGS ORDER [heading as in originating process] To: [employer] of , the employer of the [judgment debtor]. TAKE NOTICE that the attachment of earnings order made on 20 whereby you were ordered to make payments for or towards securing payment of the amount due and unpaid in respect of a judgment in favour of the [judgment creditor] out of the earnings payable to the [judgment debtor], ceased to have effect on 20 because [state reason]. Dated 20 . Prothonotary Note: Where the order ceases to have effect, you will not incur any liability in consequence of your treating it as still in force at any time before the expiration of seven days after this notice or a copy of the order discharging the earlier order, as the case may be, is served on you. _______________ Form 72L -- 621 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 591 FORM 73A Rule 73.05(2) CHARGING SUMMONS [heading as in originating process] To [name] of [address]. And to the [judgment debtor]. YOU are summoned to attend before the Court on the hearing of an application by the [judgment creditor] for an order that certain securities [or as the case may be] in which the [judgment debtor] has a beneficial interest, namely, [give particulars sufficient to identify the securities and the interest of the judgment debtor], stand charged to the extent of the value of the entire beneficial interest of the [judgment debtor] in the securities or of so much of that value as may be sufficient to satisfy a judgment recovered against the [judgment debtor] by the [judgment creditor] in the Court on [e.g. 20 June 20 ] for $ , interest accrued and accruing on the judgment and the costs of the [judgment creditor] of the charging order proceedings. The sum required to satisfy the judgment, interest and costs is $ , being— (a) $ , the amount due and unpaid under the judgment; (b) $ , the amount of interest accrued or estimated to accrue; (c) $ , the estimated costs of the charging order proceedings. This summons is filed and served by order of the Court made on 20 . The application will be heard etc. [continue as in Form 46A]. [insert the following at the end of the summons] To [name] of [address] TAKE NOTICE that upon service of this summons you shall not, except by order of the Court, cause or permit any transfer of any of the abovementioned securities to be made or pay to any person any dividend or interest thereon. Form 73A -- 622 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 592 To the [judgment debtor]. TAKE NOTICE that, unless the Court otherwise orders, no disposition by you of your interest in any of the abovementioned securities made after service of this summons and before the application for the charging order is heard by the Court shall be valid as against the [judgment creditor]. _______________ Form 73A -- 623 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 593 FORM 73B Rule 73.13(2)(a)(i) AFFIDAVIT AS TO STOCK IN THE SUPREME COURT OF VICTORIA AT In the matter of [identify the document comprising the stock under which the claimant's interest arises]. I, of make oath and say that according to the best of my knowledge, information and belief I have [or if the affidavit is made by the solicitor, name of claimant of has] a beneficial interest in the stock specified in the notice filed with this affidavit as [describe the interest of the claimant in the stock and identify any document under which it arises]. This affidavit is filed on behalf of [name of claimant] of _______________ Form 73B -- 624 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 594 FORM 73C Rule 73.13(2)(a)(ii) NOTICE AS TO STOCK [heading as in Form 73B] [To be filed with Form 73B.] To [name] of [address]. TAKE NOTICE that the stock comprised in and subject to the trusts of the settlement [or as the case may be] referred to in the affidavit filed with this notice consists of the following, namely [identify the stock, stating the names in which it stands]. This notice is intended to stop the transfer of the stock and not the payment of any dividend or interest thereon [or also the payment of any dividend or interest thereon]. [Signature of claimant, or solicitor where affidavit made by solicitor] _______________ Form 73C -- 625 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 595 FORM 75A Rule 75.02(b) ARREST WARRANT IN SUMMARY PROCEEDINGS FOR CONTEMPT IN FACE OF SUPREME COURT IN THE SUPREME COURT OF VICTORIA AT TO THE SHERIFF Arrest and bring him or her before the Court forthwith to answer a charge of contempt, and if it is not practicable to bring him or her before the Court forthwith, detain him or her in custody, and when it is practicable to bring him or her before the Court, do so forthwith. Dated [e.g. 15 June 20 ]. Judge _______________ FORM 75AA Rule 75.08.1 ARREST WARRANT PENDING CONTEMPT HEARING [heading as in originating process] TO THE SHERIFF Arrest and bring him or her before the Court forthwith to answer a charge of contempt, and if it is not practicable to bring him or her before the Court forthwith, detain him or her in custody, and when it is practicable to bring him or her before the Court, do so forthwith. Dated [e.g. 15 June 20 ]. Judge _______________ Form 75A -- 626 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 596 FORM 75B Rule 75.09(2) ARREST WARRANT IN CONTEMPT PROCEEDINGS BY SUMMONS OR ORIGINATING MOTION [heading as in summons or originating motion] TO THE SHERIFF Arrest and bring him or her before the Court to answer a charge of contempt, detaining him or her in custody in the meantime, unless by paying $ into Court [or as the case may be], he or she gives security for his or her attendance in person before the Court to answer the charge and to submit to the judgment of the Court. Dated [e.g. 15 June 20 ]. Judge _______________ Form 75B -- 627 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 597 FORM 75C Rule 75.13 COMMITTAL WARRANT [heading as in Form 75A, 75AA or 75B, as appropriate] TO THE SHERIFF Take to the prison at and deliver him or her to the Governor of that prison. or Arrest and take him or her to the prison at and deliver him or her to the Governor of that prison. To the Governor of the prison at Receive into your custody and keep him or her until the further order of this Court [as the case may be]. His or her committal is for contempt of court in that he or she [state nature of his or her contempt]. Dated [e.g. 15 June 20 ]. Judge __________________ Form 75C -- 628 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 598 APPENDIX A SCALE OF COSTS Instructions 1. To institute or defend any proceeding or appeal $235.00 2. To make or oppose any interlocutory application $57.00 3. For statement of claim whether indorsed on writ or third party notice or served separately, or counterclaim $116.00 4. For any other pleading, particulars in lieu of pleading or amended pleading $57.00 5. For counsel to advise or give an opinion $57.00 6. For counsel to make an interlocutory application where no other brief $57.00 7. For witness statements, summaries of evidence or like documents, interrogatories, answers to interrogatories, oral examination for discovery, affidavit or other document for filing on an interlocutory application other than a short, formal affidavit or other document $116.00 8. For a necessary document not otherwise provided for, such fee as may be reasonable in the circumstances No allowance for instructions shall be made under the above items where an allowance for the work is claimed in detail and allowed on that basis Instead of the fees for instructions above, such larger sum may be allowed as the Taxing Master thinks reasonable in the circumstances 9. Instructions for brief on trial of proceedings, including an assessment of damages or value or a trial before special referee, or an appeal, such allowances as the Taxing Master thinks reasonable in the circumstances App. A -- 629 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 599 Originating Process 10. Writ or originating motion or summons (where filed as originating process) $135.00 11. If any of the above exceed three folios (when not drawn by counsel) for each extra folio $25.00 The above allowances include all indorsements of claim, copy for filing and one copy for service and attendance to file, but not Court fees Corporations Short Form Bill 11A. Costs of obtaining a winding-up order up to and including authentication, filing and service of the order under section 470 of the Corporations Act and the obtaining from the Taxing Master of an order as to costs $2707.00 Additional costs are allowable for any adjournment in accordance with item 34 or 35 in respect of which costs have been reserved by the Court Interlocutory Process 12. Summons before Judge or Master $116.00 13. Subpoena $68.00 If a subpoena exceeds three folios, for each extra folio $9.20 These allowances include preparation of document, copy for filing and one copy for service and attendance to file Execution Process 14. Warrant of execution $135.00 This allowance includes preparation of the warrant, copy for filing and one copy for service and attendance to file App. A. -- 630 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 600 Notices and Memoranda 15. Notice to produce or any other necessary or proper notice or memorandum not otherwise provided for, or any demand $46.00 This allowance does not apply to a short notice or memorandum indorsed on another document, but an allowance may be made therefore as part of the allowance for the document 16. If the notice is special, or necessarily exceeds three folios, for each folio The above allowances include preparation of the notice and one copy for filing or service $25.00 Appearance 17. Preparing and attending filing notice of appearance (including one copy for service) $81.00 Drawing Pleadings and Other Documents 18. (a) Pleadings, including petitions, indorsement constituting statement of claim on writ or third party notice, including particulars (b) If exceeding three folios, for each extra folio $116.00 $25.00 19. Any other necessary document, per folio $25.00 No allowance is to be made to a solicitor for drawing a document drawn by counsel, but a fee may be allowed for drawing matter necessary to instruct counsel In allowing for drawing, the Taxing Master may disallow anything which is a repetition or adaptation of matter for the drawing of which allowance has otherwise been made in the proceeding. The Taxing Master may increase these allowances if in the circumstances he thinks it reasonable to do so 20. For preparing each exhibit $4.60 App. A -- 631 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 601 Engrossment and Copies 21. Engrossment of documents, per folio $4.60 22. (a) Copy or photocopy of document, per page (b) Reproduction of document from microfiche, microfilm or like process, per page, the actual cost or $1.60 $1.60 23. Where under the Rules or any order of the Court or for other sufficient cause any document is printed out and it would not have been reasonable to send the original to the printer, a copy for the printer shall be allowed, per page $1.60 24. Where more than ten copies of the same document are required, the amount actually and properly paid to a printer (in addition to all necessary attendances on the printer), or, if reproduced by the solicitor, the equivalent amount or such lesser amount as the Taxing Master considers fair and reasonable having regard to commercial rates for similar services, shall be allowed Where it is necessary to print any part of a document in a foreign language, or as a facsimile, or in any unusual or special manner, or where any alteration in the document printed becomes necessary after the first proof, such further allowance shall be made as the Taxing Master thinks reasonable Perusals 25. Of all pleadings, amendments of pleadings (which exceed three folios), applications by summons, notice or otherwise, third party notices, interrogatories, answers thereto, transcripts of discovery by oral examination, notices, affidavits, draft orders submitted for approval by another party, drafts of documents to be settled by an officer of the Court, orders (unless an allowance has been made previously for perusal of a draft), opinions or advices of counsel where requested, bills of costs necessarily perused by the solicitor for the party on whom it was served $36.00 Or per folio $5.10 App. A -- 632 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 602 26. Of all other documents, including deeds, correspondence (including incoming correspondence), exhibits, per folio $3.80 If the solicitor is or ought to be familiar with the contents of the document or if it is not necessary to read all of it carefully, the Taxing Master shall allow such smaller amount as he thinks reasonable. No allowance shall be made for the solicitor perusing letters which he receives unless the Taxing Master considers there are special circumstances for doing so 27. Alternatively, for examining a document or checking a proof or print or examining an appeal book Solicitor, per quarter hour $57.00 Clerk, per quarter hour $34.00 Service 28. Service of any document where necessary, and not able to be served by post $56.00 Or such charge as is reasonable having regard to the number of necessary attendances, the time taken, the distance travelled and any expense incurred 29. Where by reason of the location of the person to be served it is proper to effect service through an agent, instead of an allowance for service— (a) for correspondence with the agent $36.00 (b) the amount actually and reasonably charged by the agent Where more than one attendance is necessary to effect service, or to ground an application for substituted service, the Taxing Master may make such further allowance under items 28 and 29 as he thinks reasonable For service out of Victoria, the Taxing Master shall make such allowance as he thinks reasonable 30. Service of document on a party by filing or leaving at the office of the party's solicitor or other address for service, where that mode of service is necessary $34.00 App. A -- 633 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 603 31. Service of document on a party by post or leaving at document exchange $19.00 Only one fee for service shall be allowed where two or more documents are or could have been served together Attendances 32. (a) On counsel with brief on trial of proceeding, including an assessment of damages or value or a trial before a special referee or an appeal $69.00 (b) On counsel with any other brief or papers or to appoint consultation or conference (including all attendances to settle counsel's fees) $46.00 33. (a) On consultation or conference with counsel $116.00 (b) Where a consultation or conference occupies more than one half hour, if the Taxing Master thinks it reasonable, for each subsequent half hour $116.00 (c) If the solicitor does not attend personally, the allowance shall be as the Taxing Master thinks reasonable, but not exceeding, for— the first half hour each half hour thereafter $57.00 $57.00 34. On any application or attendance before a Judge, a Master or the Taxing Master, Listing Master, or Prothonotary, examination of a witness, discovery by oral examination, assessment of damages or value, trial or inquiry, trial of a proceeding or hearing of an appeal, where in list or likely to be heard $116.00 35. (a) At trial or hearing, for each hour $235.00 But, according to circumstances, not to exceed per day of six hours (including luncheon and dinner adjournments) $1127.00 or, If attended by clerk $561.00 (b) To hear reserved judgment, for each half hour $116.00 App. A -- 634 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 604 (c) By appointment or on short or formal application to a Judge or Master or the Taxing Master, Listing Master or Prothonotary $116.00 36. Where in the opinion of the Taxing Master the attendance of two principals or of a solicitor and clerk at trial is necessary, an additional allowance may be made not exceeding per day of six hours (including luncheon and dinner adjournments) $1127.00 37. To settle judgment or order, per half hour $116.00 38. In addition to reasonable expenses for travel and sustenance, allowance may be made for a solicitor travelling to a place more than 50 kilometres distant from his or her place of residence or business where— (a) the journey was necessary and proper for the purpose of the proceeding and what was done by the solicitor could not have been done satisfactorily by an agent; and (b) the solicitor was necessarily absent from his or her office, and for that time no charge could otherwise be made, and having regard to what other allowances may be made to the solicitor in the proceeding Not exceeding per day $1127.00 If the journey is not undertaken solely for the purpose of the proceeding, the Taxing Master may allow a proportion of the fee as he thinks reasonable 39. To file or lodge any document, to obtain an appointment from an officer of the Court, or to insert an advertisement or other attendance of a similar nature capable of performance by a junior clerk $34.00 40. If the exercise of skill or legal knowledge is involved so as to require the personal attendance of the solicitor, per quarter hour $57.00 Or, if attendance by solicitor's clerk, per quarter hour $34.00 Or such larger amount as the Taxing Master thinks reasonable having regard to the importance or difficulty of the subject matter of attendance App. A -- 635 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 605 41. Making an appointment or similar attendance by telephone, at the discretion of the Taxing Master $11.00 42. Arranging attendance of a witness or any attendance for which no other provision is made, per quarter hour $34.00 43. Sending or receiving telex, telegram or facsimile documents $34.00 Or such larger amount as is reasonable in the circumstances having regard to the length Correspondence 44. Letter making an appointment or forwarding document without explanation or the like $16.00 45. Letter, ordinary $30.00 46. Letter, special $39.00 Or such amount as the Taxing Master thinks reasonable 47. Circular letter, after the first $10.00 For each additional page after the first page, the photocopying charge shall apply The above allowances include the standard surface rate of postage, but, if any communication is necessarily made by telex, telegram or transmission of a facsimile, the appropriate statutory charges may be allowed as a disbursement 48. Where any agent is employed, for correspondence with the agent which the Taxing Master thinks reasonable, per quarter of the year $57.00 to $235.00 Or, if special or extensive, in the discretion of the Taxing Master. _______________ App. A -- 636 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 606 APPENDIX B WITNESSES' EXPENSES AND INTERPRETERS' ALLOWANCES WITNESSES' EXPENSES 1. Professional person including pharmaceutical and analytical chemists, psychologists, actuaries, valuers and accountants (carrying on business as principals) per hour or part thereof necessarily absent from professional rooms or place of business (during normal hours of business), $142–$283, but not in any event to exceed $1768 in any one day 2. Person other than a professional person who is engaged in business as a principal on his or her own behalf $89, or such fee as is reasonable in the circumstances but not in any event to exceed $295 per half day or part thereof or $530 in any one day 3. Any other witness per day, $89 But if the witness is remunerated in any employment by wages, salary or fees the amount lost by the attendance, but not in any event to exceed $295 per half day or part thereof or $530 in any one day The Taxing Master may allow in addition any appropriate necessary expense incurred by the witness, e.g. child minding expenses A witness attending in more than one proceeding shall be entitled to a proportionate part only of the expense of the proceeding. The Taxing Master may allow a country witness, in addition to the above expense, a reasonable sum for the actual expense of travel to and from the place of trial or hearing and for maintenance or sustenance. For this purpose a witness who does not reside within 50 kilometres of the place of trial or hearing is a country witness. Where a witness gives evidence as an expert, the Taxing Master may allow an amount reasonably and properly incurred and paid to the witness for qualifying to give that evidence. Notwithstanding anything in the above scale, the Taxing Master may allow to an expert witness a special fee for any attendance at court not covered by the scale when the witness assists counsel or solicitors as an expert for a period during the trial or hearing. Nothing in the scale shall affect the existing practice of allowing qualifying fees to witnesses. App. B -- 637 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 607 INTERPRETERS' ALLOWANCES 1. Attending professional, scientific or expert witness qualifying to give evidence, attending conference with solicitor or counsel $41 for each hour or part thereof but not in any event to exceed $255 in any one day 2. Attending court for absence from place of residence or business $147 for four hours or less and thereafter $41 per hour, or part thereof, but not in any event to exceed $255 in any one day The Taxing Master may allow a country interpreter, in addition to the above allowances, a reasonable sum for the actual expense of travel to and from the place of trial or hearing and for maintenance and sustenance. For this purpose, an interpreter who does not reside within 50 kilometres of the place of trial or hearing is a country interpreter. Notwithstanding anything in the above scale, the Taxing Master may allow an increased amount to a professional interpreter in special circumstances. __________________ App. B -- 638 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 608 SCHEDULE Rule 1.03(2) REVOKED STATUTORY RULES S.R. No. Title 19/1996 Chapter I of the Rules of the Supreme Court, the Supreme Court (General Civil Procedure) Rules 1996 137/1996 Supreme Court (Chapter I Amendment No. 1) Rules 1996 138/1996 Supreme Court (Chapter I Amendment No. 2) Rules 1996 31/1997 Supreme Court (Chapter I Amendment No. 3) Rules 1997 137/1997 Supreme Court (Chapter I Amendment No. 4) Rules 1997 138/1997 Supreme Court (Chapter I Amendment No. 5) Rules 1997 14/1998 Supreme Court (Chapter I Amendment No. 6) Rules 1998 100/1998 Supreme Court (Chapter I Amendment No. 7) Rules 1998 121/1998 Supreme Court (Chapter I Amendment No. 8) Rules 1998 150/1998 Supreme Court (Chapter I Amendment No. 9) Rules 1998 96/1999 Supreme Court (Chapter I Amendment No. 10) Rules 1999 131/1999 Supreme Court (Chapter I Amendment No. 11) Rules 1999 36/2000 Supreme Court (Chapter I Amendment No. 12) Rules 2000 63/2000 Supreme Court (Chapter I Amendment No. 13) Rules 2000 75/2000 Supreme Court (Chapter I Amendment No. 14) Rules 2000 120/2000 Supreme Court (Chapter I Amendment No. 15) Rules 2000 26/2001 Supreme Court (Chapter I Amendment No. 16) Rules 2001 50/2001 Supreme Court (Chapter I Amendment No. 17) Rules 2001 111/2001 Supreme Court (Chapter I Amendment No. 18) Rules 2001 130/2001 Supreme Court (Chapter I Amendment No. 19) Rules 2001 36/2002 Supreme Court (Chapter I Amendment No. 20) Rules 2002 91/2002 Supreme Court (Chapter I Amendment No. 21) Rules 2002 121/2002 Supreme Court (Chapter I Amendment No. 22) Rules 2002 95/2003 Supreme Court (Chapter I Amendment No. 23) Rules 2003 Sch. -- 639 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 609 S.R. No. Title 102/2003 Supreme Court (Chapter I Amendment No. 24) Rules 2003 142/2003 Supreme Court (Chapter I Amendment No. 25) Rules 2003 100/2004 Supreme Court (Chapter I Amendment No. 26) Rules 2004 144/2004 Supreme Court (Chapter I Amendment No. 27) Rules 2004 145/2004 Supreme Court (Chapter I Amendment No. 28) Rules 2004 125/2005 Supreme Court (Chapter I Amendment No. 29) Rules 2005 Dated: 24 November 2005 M. L. WARREN, C.J. CHRISTOPHER MAXWELL, P. W. F. ORMISTON, J.A. STEPHEN CHARLES, J.A. PETER BUCHANAN, J.A. G. M. EAMES, J.A. GEOFFREY NETTLE, J.A. P. D. CUMMINS, J. JOHN COLDREY, J. DAVID BYRNE, J. H. R. HANSEN, J. PHILIP MANDIE, J. MURRAY B. KELLAM, J. BERNARD D. BONGIORNO, J. D. J. HABERSBERGER, J. R. S. OSBORN, J. K. WILLIAMS, J. STUART MORRIS, J. STEPHEN KAYE, J. Sch. -- 640 of 641 -- Supreme Court (General Civil Procedure) Rules 2005 S.R. No. 148/2005 610 ELIZABETH HOLLINGWORTH, J. KEVIN H. BELL, J. KIM HARGRAVE, J. ═══════════════ Sch. -- 641 of 641 --