General Rules of Procedure in Civil Proceedings 1996

i General Rules of Procedure in Civil Proceedings 1996 S.R. No. 19/1996 TABLE OF PROVISIONS Order Page 1. INTRODUCTION 1. Preliminary 2 2. Non-compliance with the Rules 8 3. Time, sittings and Court Office 9 2. COMMENCEMENT OF PROCEEDINGS 4. Process in the Court 12 5. Content, filing and duration of originating process 15 3. SERVICE AND APPEARANCE 6. Service 19 7. Service out of Australia 29 8. Appearance 38 4. CLAIMS AND PARTIES 9. Joinder of claims and parties 41 10. Counterclaim 50 11. Third party procedure 53 12. Interpleader 61 5. PLEADINGS 13. Pleadings 67 14. Service of pleadings 73 6. PARTICULAR PARTIES 15. Person under disability 76 16. Executors, administrators and trustees 81 17. Partners and sole proprietors 84 -- 1 of 492 -- Page ii 18. Representative proceeding 89 19. Notice of constitutional matter 90 20. Change of solicitor 92 7. DISPOSITION WITHOUT TRIAL 21. Judgment in default of appearance or pleading 95 22. Summary judgment for plaintiff 99 23. Summary stay or dismissal of claim and striking out pleading 104 24. Judgment on failure to prosecute or obey order for particulars or discovery 106 25. Discontinuance and withdrawal 108 26. Offer of compromise 110 8. DOCUMENTS 27. Content and form of Court documents 119 28. Filing and sealing of Court documents 123 9. DISCOVERY 29. Discovery and inspection of documents 126 30. Interrogatories 134 31. Discovery by oral examination 141 32. Preliminary discovery and discovery from non-party 146 33. Medical examination and service of hospital and medical reports 151 10. OTHER PRE-TRIAL PROCEDURES 34. Directions 157 35. Admissions 158 36. Amendment 161 11. PRESERVATION OF RIGHTS 37. Inspection, detention and preservation of property 164 38. Injunctions 168 39. Receivers 169 12. EVIDENCE 40. Evidence generally 172 41. Evidence before trial 177 42. Subpoenas 186 43. Affidavits 191 44. Expert evidence 194 -- 2 of 492 -- Page iii 13. APPLICATIONS AND TRIAL 45. Originating motion 196 46. Applications 199 47. Place of mode of trial 202 48. Setting down for trial 204 49. Trial 210 50. References out of Court 212 51. Assessment of damages or value 216 14. PARTICULAR PROCEEDINGS 52. Account and inquiries 217 53. Summary proceeding for recovery of land 220 54. Administration of estates and execution of trusts 223 55. Sale of land by Order of Court 227 56. Judicial review 229 57. Habeas corpus 231 58. Appeals from inferior jurisdictions 234 15. JUDGMENTS AND ORDERS 59. Judgments and orders 241 60. Authentication and filing of judgments and orders 246 61. Judgment debt instalment orders 250 16. COSTS 62. Security for costs 255 63. Costs 257 17. APPEAL 64. Appeal to Court of Appeal 291 65. Applications to Court of Appeal 304 18. ENFORCEMENT 66. Enforcement of judgments and orders 306 67. Discovery in aid of enforcement 314 68. Warrants of execution generally 316 69. Warrant of seizure and sale 320 70. Warrant of possession 324 71. Attachment of debts 325 72. Attachment of earnings 332 73. Charging orders and stop orders and notices 345 -- 3 of 492 -- Page iv 74. Enforcement by appointment of receiver 353 75. Contempt 353 76. Sequestration 358 19. PROCEEDINGS BEFORE MASTERS 77. Authority of Masters 359 78. Proceedings under judgment 366 79. Funds in Court 370 20. PROCEEDINGS IN EXTERNAL TRIBUNAL 80. Service of foreign process 374 81. Obtaining evidence for external tribunal 378 FORMS Form 5A. Writ 381 5B. Originating motion between parties 383 5C. Originating motion between parties 385 5D. Originating motion 386 5E. Originating motion for recovery of land under Order 53 387 7A. Letter of request for service of document 389 8A. Notice of appearance 390 8B. Notice of conditional appearance 391 10A. Heading and notice on counterclaim where defendant new party 391 10B. Notice of appearance to counterclaim 393 11A. Third party notice 393 11B. Notice by one tortfeasor claiming contribution against another 396 12A. Notice of claim to goods taken in execution 396 15A. Order approving compromise of claim of minor 397 15B. Order approving compromise of claim under Part III of Wrongs Act for benefit of minor 398 19A. Notice of a constitutional matter 400 29A. Notice for discovery 400 29B. Affidavit of documents 401 29C. Notice to produce 402 29D. Notice of default in making discovery of documents 403 30A. Notice of default in answering interrogatories 403 35A. Notice to admit 404 35B. Notice of dispute 404 39A. Deed of guarantee 405 41A. Order for examination within Victoria 406 41B. Order for examination out of Victoria 406 -- 4 of 492 -- Page v 41C. Order for letter of request to judicial authority out of Victoria 407 41D. Letter of request for examination of witness 408 42A. Subpoena to give evidence 409 42B. Subpoena for production 410 42C. Subpoena for production and to give evidence 412 42D. Subpoena for production 413 45A. Summons on originating motion 415 46A. Summons 416 48A. Notice of trial 416 48B. Certificate of readiness for trial 417 48C. Indorsement on certificate of readiness for trial 420 53A. Judgment in summary proceeding for recovery of land 421 53B. Warrant of possession in summary proceeding for recovery of land 421 57A. Writ of habeas corpus 422 58A. Notice of appeal 423 59A. Notice of judgment 424 60A. General form of judgment given 424 60B. General form of judgment entered 425 60C. General form of order 426 60D. Judgment at trial by judge without a jury 427 60E. Judgment at trial by judge with a jury 427 60F. Judgment or order at trial of preliminary question 428 60G. Default judgment for debt 429 60H. Default judgment for recovery of land 429 60J. Interlocutory or interlocutory and final judgment for damages in default 430 60K. Final judgment for damages or value in default 431 60L. Interlocutory or interlocutory and final judgment for detention of goods in default 432 61A. Applications to Master for order for payment of judgment debt by instalments 433 61B. Application to Master for order in substitution for order for payment of judgment debt by instalments 434 61C. Application to the Court for variation or cancellation or order for payment of judgment debt by instalments 435 61D. Order relating to payment of judgment debt by instalments 436 61E. Notice of order or refusal of order by Master for payment of judgment debt by instalment 437 61F. Notice of objection 438 61G. Notice of hearing of objection 439 61H. Notice by Court relating to payment of judgment debt by instalments 439 61J. Instalment agreement 440 -- 5 of 492 -- Page vi 61K. Order for instalment payment of judgment debt after agreement 442 61L. Notice of order for instalment payment of judgment debt after agreement 442 61M. Summons to attend for oral examination 443 61N. Warrant of apprehension on disobedience to summons 444 61P. Notice to judgment creditor of summons or warrant to judgment debtor 445 61Q. Notice by Court of confirmation, variation or cancellation of judgment debt instalment order 446 61R. Certificate of payment 446 63A. Summons for taxation of costs 447 64A. Notice of address for service 447 68A. Warrant of seizure and sale 448 68B. Warrant of possession 449 68C. Warrant of delivery 450 69A. Advertisement of sale by the Sheriff 451 71A. Garnishee summons 452 71B. Garnishee order 453 71C. Garnishee order 454 72A. Attachment of earnings summons 454 72B. Affidavit in support of application for attachment of earnings order 455 72C. Judgment debtor's statement of financial situation 456 72D. Summons for an order to attend for examination or furnish particulars 460 72E. Affidavit in support of summons for an order to attend for examination or furnish particulars 460 72F. Order that judgment debtor attend or give statement 461 72G. Order that person indebted to or employer of judgment debtor give statement 462 72H. Attachment of earnings order 463 72J. Notice to employer 464 72K. Notice by employer that judgment debtor is not in his employ 466 72L. Notice of cessation of attachment of earnings order 467 73A. Charging summons 467 73B. Affidavit as to stock 468 73C. Notice as to stock 469 75A. Arrest warrant in summary proceedings for contempt in face of Supreme Court 470 75AA. Arrest warrant pending contempt hearing 470 -- 6 of 492 -- Page vii 75B. Arrest warrant in contempt proceedings by summons or originating motion 471 75C. Committal warrant 471 __________________ APPENDIX A Scale of Costs 473 APPENDIX B Witnesses' Expenses and Interpreters' Allowance 481 ═══════════════ NOTES 483 -- 7 of 492 -- 1 STATUTORY RULES 1996 S.R. No. 19/1996 Supreme Court Act 1986 General Rules of Procedure in Civil Proceedings 1996 The Judges of the Supreme Court make the following Rules: 1. Object The object of these Rules is to make general rules of procedure in civil proceedings to constitute a new Chapter I of the Rules of the Supreme Court. 2. Authorising provisions These Rules are made under section 25 of the Supreme Court Act 1986 and all other enabling powers. 3. Commencement These Rules come into operation on 1 March 1996. 4. New Chapter I The following Rules constitute Chapter I of the Rules of the Supreme Court— -- 8 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 2 'ORDER 1 PRELIMINARY PART 1—CITATION, COMMENCEMENT AND REVOCATION 1.01 Title These Rules shall constitute Chapter I of the Rules of the Supreme Court and shall be entitled the General Rules of Procedure in Civil Proceedings 1996. 1.02 Commencement These Rules come into operation on 1 March 1996. 1.03 Revocation Chapter I of the Rules of the Supreme Court entitled the 1 General Rules of Procedure in Civil Proceedings 1986, is revoked. PART 2—APPLICATION OF RULES 1.04 Definitions In this Part— "commencement date" means 1 March 1996; "enduring proceeding" means a civil proceeding in the Court which was a pending proceeding as defined by Rule 1.04 of the former Rules before 1 January 1987 to which the General Rules of Procedure in Civil Proceedings 1985 applied; "former Rules” means the General Rules of Procedure in Civil Proceedings 1986; Order 1 -- 9 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 3 "pending proceeding" means a civil proceeding in the Court to which, immediately before the commencement date, the former Rules applied, and includes an enduring proceeding. 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 before the commencement date and, except as provided in this Part, anything so done or omitted shall be taken to have been done or omitted under these Rules. (4) Part 2 of Order 1 of the former Rules shall continue to apply to an enduring proceeding as if in that Part the expression "these Rules" meant the former Rules until their revocation and, after their revocation, 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— Order 1 -- 10 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 4 (a) an order to review under Part XI of the Magistrates' Courts Act 1971; (b) an order for review under the Administrative Law Act 1978; (c) an appeal from the order, decision or determination of a tribunal to which by another Act Part XI of the Magistrates' Courts Act 1971 applies. (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; "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; Order 1 -- 11 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 5 * * * * * "defendant" includes respondent; "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 Order 1 -- 12 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 6 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; "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; * * * * * * * * * * * * * * * "the Act" means the Supreme Court Act 1986. (2) In these Rules, unless the context or subject- matter otherwise requires, a reference to a Judge is a reference to the Court constituted by a Judge and 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. PART 4—MISCELLANEOUS Order 1 -- 13 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 7 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. 1.16 Act by corporation Order 1 -- 14 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 8 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 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. 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 his solicitor. 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. 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; Order 2 -- 15 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 9 (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. 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. 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. Order 3 -- 16 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 10 (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) 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. 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. Order 3 -- 17 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 11 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 his desire. 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 Order 3 -- 18 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 12 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. 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. Order 4 -- 19 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 13 (4) A person who appeals shall be called an appellant and any other party to the appeal shall be called a respondent. (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 authorized 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 Order 4 Order 4 -- 20 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 14 (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 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 his 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. ORDER 5 -- 21 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 15 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 him 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. 5.04 Indorsement of claim on writ (1) A writ shall contain an indorsement of claim. Order 5 -- 22 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 16 (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; (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. Order 5 -- 23 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 17 (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 him; and (b) if the solicitor declares in writing that the originating process was not filed by him, 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, he shall be taken to desire trial in Melbourne. 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 statement of the amount of the debt and the amount claimed for costs and 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 his 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. Order 5 -- 24 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 18 (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 statement of the person intended to be served, if any, or, 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. (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, the Court may initial the originating process and such number of copies as are required for service or proof of service, and Order 5 -- 25 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 19 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. (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. 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 Order 6 Order 6 -- 26 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 20 (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 him 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 leaving a copy of the document with the person to be served or, if he does not accept the copy, by putting the copy down in his presence and telling him 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. 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, on the mayor, chairman, president or other head officer of the corporation, or 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 he resides or in whose care he is; (c) a handicapped person as defined in Rule 15.01, on— -- 27 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 21 (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 he is; (d) the Crown in right of the Commonwealth or the Commonwealth, on the Secretary to the Attorney-General's Department or 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; (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 may, notwithstanding paragraph (1), order that the Order 6 -- 28 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 22 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, his address in Victoria indorsed on the originating process. (2) The address for service of a defendant shall be as provided in Rule 8.06. 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 Order 6 -- 29 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 23 (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 his 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; (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 usual or last known place of residence or of business; Order 6 -- 30 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 24 (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; (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 Order 6 -- 31 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 25 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. (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 his identity or that he holds some office is evidence of his identity or that he 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. Order 6 -- 32 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 26 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 on the happening of any specified event, or on the expiry of any specified time. (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 his 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. Order 6 -- 33 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 27 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 his business relations with the principal be served on such agent. (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 his 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 Order 6 Order 6 -- 34 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 28 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 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 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, unless the Rules otherwise provide or the Court otherwise orders, be sufficiently given or served in any manner in which a document not requiring personal service may be served under this Order. -- 35 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 29 6.17 Affidavit of service (1) In the case of personal service of a document, an affidavit of service of the document shall state by whom the document was served, the hour of the day, day of the week and date on which it was served, the place of the service and 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. 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 Order 7 -- 36 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 30 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; (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; Order 7 -- 37 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 31 (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; (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 (Carrier's 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 and "mortgagor" means a person entitled to, or interested in, property subject to a mortgage. Order 7 -- 38 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 32 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. (2) If the originating process does not contain the indorsement referred to in paragraph (1) at the time it is filed, the plaintiff may, in accordance with paragraph (3), 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, if satisfied that the subject matter of the proceeding so far as it concerns that party is within Rule 7.01 and that the originating process was duly served on that party, may order that the plaintiff shall be at liberty to proceed. Order 7 -- 39 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 33 (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. 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 before an application is made under Rule 7.04 or before an order of the Court is made on such an application. 7.06 Service of other process by leave The Court may by order allow service out of Australia of the following— (a) originating process in a proceeding in relation to the wardship, custody, management or welfare of a minor or the custody, management or welfare of a person who is incapable of managing his affairs; (b) an originating motion in a proceeding brought under any Act; (c) any summons, order or notice in any proceeding. 7.07 Service of counterclaim or third party notice (1) This Rule applies to— Order 7 -- 40 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 34 (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. (4) Where any document is served out of Australia by order of the Court made under Rule 7.06 or 7.07, a copy of the order, a copy of any affidavit made in support of the application for the order and, unless the Court otherwise orders, a copy of any exhibit referred to in the affidavit shall be served with the document. Order 7 -- 41 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 35 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; (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 Order 7 -- 42 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 36 (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 (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 his solicitor to give security to his satisfaction for the expenses referred to in paragraph (1)(c). Order 7 -- 43 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 37 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 Rule 7.10 and 7.12, and does not within 14 days after service on him of an account of expenses incurred in consequence of the request for service pay to the Prothonotary the amount of the expenses, the Court may, on application by the Prothonotary— (a) order the applicant or his 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. Order 7 -- 44 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 38 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 he 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. Order 8 -- 45 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 39 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; Order 8 -- 46 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 40 (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 he 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. Order 8 -- 47 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 41 (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. 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, Order 9 -- 48 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 42 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 him, all persons so entitled shall be parties to the proceeding, and 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; Order 9 -- 49 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 43 (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 he has no interest; (d) any person made a party cease to be a party on condition that he be bound by the determination of the questions in the proceeding or without any such condition. 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 he 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 Order 9 -- 50 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 44 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. 9.07 Procedure for addition of party (1) A person shall not be added as a plaintiff without his consent signified in writing or in such other manner as the Court orders. (2) An application by a person for an order adding him as a party shall, unless the Court otherwise orders, be supported by an affidavit showing his interest in the questions in the proceeding or the question to be determined as between him 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 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 his 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 Order 9 -- 51 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 45 have been commenced against the estate of the deceased in accordance with paragraph (1). (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 may appoint a person to represent the estate of the deceased for the purpose of the proceeding or, 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 order that the proceeding be carried on against the person so appointed or against the personal representative, as if he 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, order that the Incorporated Nominal Defendant be appointed to represent the estate of the deceased. (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. Order 9 -- 52 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 46 (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 any insurer of the deceased who has an interest in the proceeding and to 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 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 Order 9 -- 53 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 47 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 may, on application by a party or by a person to whom liability on the cause of action survives on the death, 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. (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— Order 9 -- 54 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 48 (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 the personal representative, if any, of the deceased and to 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, with any necessary modifications, apply 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. (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 Order 9 -- 55 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 49 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 (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. Order 9 -- 56 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 50 (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. 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 his 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. Order 10 -- 57 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 51 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. (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 he 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 the counterclaim were a writ the indorsement of claim on which constituted a statement of claim in accordance with Rule 5.04, the defendant making the counterclaim were a plaintiff and the person joined were a defendant in the proceeding. Order 10 -- 58 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 52 (5) A counterclaim served on a defendant to the counterclaim who is not already a party shall commence with a notice in Form 10A. (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 his defence admits the claim of the plaintiff and counterclaims, the Court may stay the original proceeding until the counterclaim is disposed of. Order 10 -- 59 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 53 10.08 Counterclaim on stay, etc., of original proceeding A counterclaim may be prosecuted notwithstanding that judgment is given for the plaintiff in the original proceeding or 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. 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 him by filing and serving a third party notice. Order 11 -- 60 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 54 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. (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 authorizing 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 he has first served a defence. (2) A defendant may file a third party notice— Order 11 -- 61 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 55 (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. 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 before the notice is filed or 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; Order 11 -- 62 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 56 (c) any pleadings or affidavits filed and served in the proceeding. (6) Within the period for service of the third party notice on the third party a copy of the notice shall be served on the plaintiff and 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 may, on application by the plaintiff or the third party, 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 within the time limited for appearance or 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, with any necessary modification, apply 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 he 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 his defence. Order 11 -- 63 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 57 (3) Rules 14.05 to 14.10 shall, with any necessary modification, apply 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 he 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 shall be taken to admit any claim stated in the third party notice and 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; Order 11 -- 64 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 58 (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 for any contribution or indemnity claimed in the notice, and with the leave of the Court, for any other relief or remedy claimed therein. (2) If a third party or the defendant by whom he 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 he 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. 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— Order 11 Order 11 -- 65 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 59 (a) where the liability of the third party to the defendant by whom he 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 to defend the proceeding, either alone or jointly with any defendant, or to attend and take part at the trial; (d) generally make such orders and give such directions as are necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon and as to the extent to which the third party is to be bound by any judgment or decision in the proceeding. (2) The Court 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 may at any time vary or rescind any such order or direction. 11.14 Judgment between defendant and third party (1) Where a third party has been joined under this Order, the Court may at or after the trial of the proceeding or on its determination otherwise than by trial 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) Where judgment is given for the plaintiff against the defendant and judgment is given for that defendant against a third party, unless the Court otherwise orders, the judgment against the third -- 66 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 60 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, with any necessary modification, apply as if the defendant had filed and served a third party notice under Rule 11.01 and 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, be in accordance with Form 11A and 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 Order 11 -- 67 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 61 (1) Where a third party has filed an appearance this Order shall, with any necessary modification, apply 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, with any necessary modification, apply as if the defendant were the plaintiff and the plaintiff were the defendant. 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; Order 12 -- 68 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 62 "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) he 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 him, grant relief by way of interpleader. (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) shall be served on each party to the proceeding who is a claimant and 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 his claim to the sheriff. Order 12 Order 12 -- 69 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 63 (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 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 he so applies, he shall serve the summons personally on the person against whom the order is sought. 12.05 Notice to execution creditor (1) A sheriff shall, on being given a notice of claim under Rule 12.03, serve forthwith a copy of the notice and also a notice in accordance with Form 12A on the execution creditor. (2) The execution creditor may serve on the sheriff notice in writing that he admits or disputes the claim. 12.06 Admission of claim Order 12 -- 70 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 64 Where an execution creditor admits a claim by notice under Rule 12.05(2)— (a) he 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; (c) the Court may, on application by the sheriff, restrain the commencement or stay or 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 may by summons in the proceeding in which the warrant is issued 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 he admits the claim; or (b) within that period of five days serves on the sheriff notice in writing that he 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) shall be served on each party to the proceeding who claims an interest in the property in dispute and shall be served personally on each claimant who is not a party. -- 71 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 65 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, order that any claimant be added as a defendant in that proceeding in addition to or in substitution for the applicant, or 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 to pay or transfer any of the property in dispute into court or 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. 12.09 Default by claimant (1) Where— Order 12 Order 12 -- 72 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 66 (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 him be barred from prosecuting his claim against the applicant and all persons claiming under him. (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 may require the sheriff to satisfy the Court on the matters mentioned in paragraph (1) and the Court 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. 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. -- 73 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 67 (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, with any necessary modification, apply 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. ORDER 13 PLEADINGS 13.01 Formal requirements (1) Every pleading shall bear on its face the description of the pleading and 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 him, 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, Order 13 Order 13 -- 74 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 68 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 his pleading— (a) raise a point of law; (b) plead a conclusion of law if the material facts supporting the conclusion are pleaded. 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 his 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 his 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 Order 13 -- 75 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 69 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) he 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. (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 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. Order 13 -- 76 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 70 (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 him. (3) Paragraph (2) shall not affect the right of a party to amend, or apply for leave to amend, his previous pleading so as to plead the allegations or claims in the alternative. 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 to enable the opposite party to plead or to define the questions for trial or 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 -- 77 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 71 12 months before he 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. (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 his pleading or in an affidavit filed on his 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 to enable the defendant to plead or 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 he requires. 13.12 Admission and denials (1) Except as provided in paragraph (4), every allegation of fact in any pleading shall be taken to Order 13 Order 13 -- 78 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 72 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 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 he 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. 13.14 Money claim as defence -- 79 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 73 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, with any necessary modification, apply to a counterclaim as if it were a statement of claim, and to a defence to counterclaim as if it were a defence. 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. Order 14 -- 80 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 74 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 his 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. 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; Order 14 -- 81 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 75 (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. 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. Order 14 -- 82 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 76 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. 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 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 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 Order 15 -- 83 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 77 or may, if the party is a person under disability, be done by his 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 he is not himself a person under disability and he has no interest in the proceeding adverse to that of the person under disability. (2) Where a person is authorized 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 his 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 appoint or remove a litigation guardian or 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 Order 15 -- 84 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 78 (b) a certificate by the solicitor for the person under disability certifying that he knows or believes that— (i) the person to whom the certificate relates is a minor or is a handicapped person, giving the grounds of his knowledge or belief; and (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 is made litigation guardian of the defendant in accordance with Rule 15.03(6) or 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 him. Order 15 -- 85 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 79 15.06 Pleading admission by person under disability Notwithstanding anything in 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 pleading the person states that the allegation is admitted. 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 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. Order 15 -- 86 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 80 (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. (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 the fact that the person liable under the judgment is a Order 15 -- 87 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 81 person under disability, the purpose for which payment of the money or funds into court was made and the purpose for which the money or funds are held. (3) In this Rule— "judgment" includes order; "funds in court" has the meaning it bears in Rule 73.01. 15.10 Counterclaim and claim by third party notice This Order shall, with any necessary modification, apply to a counterclaim against a person under disability who is joined as defendant to the counterclaim under Rule 10.03 and to a claim by third party notice by or on behalf of or against a person under disability. 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— Order 16 -- 88 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 82 (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. (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 he or they 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 who assents to the compromise or on whose behalf the Court sanctions the compromise; or (b) the absent persons are represented by a person appointed under paragraph (2) and he 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 Order 16 -- 89 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 83 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. (2) Paragraph (1) does not limit the power of the Court to order the addition of a party under Rule 9.06 or 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. Order 16 -- 90 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 84 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 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 whether since that time there has been any and what change in the membership of the firm. (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. Order 17 -- 91 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 85 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 he 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. 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 Order 17 -- 92 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 86 partnership business may not file an appearance unless he 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 he does so as a person served as a partner and that he denies that he 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 apply to set it aside on the ground that the person filing it was a partner or is liable as a partner, or leave that question to be determined at a later stage of the proceeding; (b) the person filing the appearance may either apply to set aside the service on him on the ground that he was not a partner at a material time or liable as such, or at the proper time serve a defence on the plaintiff denying in respect of the plaintiff's claim either his 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. Order 17 -- 93 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 87 17.07 Enforcement of judgment (1) A judgment given or order made against partners suing or sued in the name of their firm may, subject to paragraph (2) and Rule 17.08, 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 pleading that he is a partner; or (iv) was served with originating process as a partner and was adjudged to be a partner. (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. Order 17 -- 94 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 88 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) shall not be enforced without the leave of the Court, and 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. (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 his 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, with any necessary modification, apply as if he were a partner and the name in which he carries on business were the name of his 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 his interest in the partnership property and profits under section 27 of the Partnership Act 1958, and for such other orders as are thereby authorized to be made, and every application to the Court by a partner of a judgment debtor made in consequence of the Order 17 -- 95 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 89 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 his 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. (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. 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 sections 34 and 35 of the Act; (b) a proceeding concerning— (i) the administration of the estate of a deceased person; or (ii) property subject to a trust. Order 18 -- 96 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 90 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 him 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. (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. ORDER 19 NOTICE OF CONSTITUTIONAL MATTER 19.01 Definitions In this Order— Order 19 -- 97 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 91 "the Act" means the Judiciary Act 1903 of the Commonwealth; "State" has the meaning ascribed 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) (i) the Attorney-General for the Commonwealth, if he or the Commonwealth is not a party; (ii) the Attorney-General of each State, if he 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 Order 19 -- 98 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 92 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. ORDER 20 CHANGE OF SOLICITOR 20.01 Notice of change Where a solicitor acts for a party in a proceeding and the party changes his solicitor, the party shall forthwith file notice of the change and serve a copy of the notice on the other parties and, where practicable, his former solicitor. 20.02 Party appointing solicitor Where a party who has no solicitor in a proceeding appoints a solicitor to act for him in the proceeding, the solicitor shall forthwith file notice of the appointment and 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 file notice that he has ceased to act and serve a copy on all parties. (2) A notice under paragraph (1) shall state the address of the party last known to the solicitor. (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; Order 20 -- 99 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 93 (b) after a proceeding has been set down for trial; (c) within 21 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; or (b) notice of appeal to the Court of Appeal— has been served. 20.04 Removal of solicitor from record (1) Where a solicitor who has acted for a party in a proceeding has died or become bankrupt, or cannot be found, or has ceased to have the right of practising in the Court, or for any other reason has ceased to practise, and the party has not given notice under Rule 20.01 or the solicitor has not given notice under Rule 20.03, the Court may, on application made by any other party to the proceeding, by order declare that the solicitor has ceased to be the solicitor acting for the first-mentioned party in the proceeding. (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 serve a copy of the order on every other party to the proceeding, and file an affidavit of service. Order 20 -- 100 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 94 20.05 Address for service (1) The address for service of a party— (a) who changes his 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) Rule 20.03(3)(a) gives a solicitor leave to file notice that he 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. (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. (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. 20.06 Death, retirement, etc., of Victorian Government Solicitor, etc. Order 20 -- 101 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 95 Where the solicitor who occupies or acts in the office of Victorian Government Solicitor or Solicitor to the Public Trustee or the Australian Government Solicitor acts as solicitor for a party in a proceeding and the solicitor 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. 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 him 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. Order 21 -- 102 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 96 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. (3) Paragraphs (1) and (2) shall, with any necessary modification, apply where the defendant has served a defence and 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; Order 21 -- 103 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 97 (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; (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, Order 21 -- 104 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 98 unless the Court otherwise orders, be made by a Master in accordance with Order 51. 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 the defendant were the plaintiff, the defence were the defence to counterclaim and 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. ORDER 22 Order 21 -- 105 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 99 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 verifying the facts on which the claim or the part of the claim to which the application relates is based and stating Order 22 -- 106 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 100 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. Order 22 -- 107 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 101 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. Order 22 -- 108 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 102 22.07 Cross-examination on affidavit (1) The Court may order any party or the maker of any affidavit to attend and be examined and cross-examined, or 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. 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 Order 22 -- 109 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 103 the Court would give judgment on the claim, the Court may make a declaration as to liability for the debt and order that its amount be ascertained in such manner as the Court directs, and 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, he may continue with the proceeding for any other claim or for the remainder of the claim or against any other defendant. 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 him 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 Order 22 -- 110 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 104 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. 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 claim in a proceeding includes a claim by counterclaim and a claim by third party notice, and a defence includes a defence to a counterclaim and a defence to a claim by third party notice. Order 23 -- 111 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 105 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). 23.05 Declaratory judgment No proceeding shall be open to objection on the ground that a merely declaratory judgment or Order 23 -- 112 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 106 order is sought thereby, and the Court may make binding declarations of right whether or not any consequential relief is or could be claimed. 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) being entitled under Rule 48.02 to set the proceeding down for trial, does not do so within 28 days after the time he becomes entitled— 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 his defence, if any, be struck out. (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. Order 24 -- 113 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 107 24.03 Stay on non-payment of costs Where a proceeding is dismissed for want of prosecution and the plaintiff is liable to pay the costs of the defendant of the proceeding, and 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, with any necessary modification, apply 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 he is required to do or take or to comply with an order that he 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. 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 he is required to do or take or to comply with an order that he do any such act or take any such step. Order 24 -- 114 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 108 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 his 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. (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 Order 25 -- 115 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 109 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. 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. Order 25 -- 116 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 110 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. 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) Where in any proceeding the plaintiff makes a claim for damages for or arising out of death or bodily injury, the plaintiff and the defendant may serve on one another an offer of compromise of that claim on the terms specified in the offer. Order 26 -- 117 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 111 (2) Where in any proceeding the plaintiff makes a claim not of the kind referred to in paragraph (1), the defendant may serve on the plaintiff, but the plaintiff may not serve on the defendant, an offer of compromise of that claim on the terms specified in the offer. (3) For the purpose of this Part an offer of compromise shall— (a) be in writing and be 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 Part. 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 Order 26 -- 118 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 112 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. (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 Order 26 -- 119 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 113 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 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 and no acceptance by him 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 he may elect, to— (a) judgment in the terms of the accepted offer; or (b) where the party in default is the plaintiff, an order that the proceeding be dismissed, and where the party in default is the defendant, an order that his defence be struck out, and in either case to judgment accordingly. Order 26 -- 120 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 114 (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. 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 him than the terms of the offer, then, unless the Court otherwise orders, the plaintiff shall be entitled to an order against the defendant for his costs in respect of the claim taxed on a solicitor and client 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 him than the terms of the offer, then, unless the Court otherwise orders, the plaintiff shall be entitled to an order against the defendant for his costs in respect of the claim up to and including the day the offer was served taxed on a party and party basis and the defendant shall be entitled to an order against the plaintiff for his costs in respect of the claim thereafter taxed on a party and party basis. Order 26 -- 121 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 115 (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, the plaintiff shall be entitled to his 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 the defendant shall be entitled to his 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. (7) Paragraphs (2) and (3) shall not apply unless the Court is satisfied by the party serving the offer of compromise that he was at all material times willing and able to carry out his part of what was proposed in the offer. 26.09 Multiple defendants Order 26 -- 122 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 116 Where two or more defendants are alleged to be jointly or jointly and severally liable to the plaintiff -- 123 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 117 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. 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 Order 26 -- 124 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 118 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 shall, with any necessary modification, apply to an offer to contribute as if it were an offer of compromise. PART 3—OTHER COMPROMISE OFFERS 26.11 Costs consequences where other claim by plaintiff (1) Where in a proceeding in which the plaintiff makes a claim not of the kind referred to in Rule 26.02(1)— (a) the plaintiff has made an offer in writing to the defendant (whether or not expressed to be without prejudice) to compromise the claim on the terms specified in the offer; (b) the offer was open to be accepted for a reasonable time; and (c) the plaintiff obtains a judgment on the claim no less favourable to him than the terms of the offer— the Court shall take those matters, and also the stage of the proceeding at which the offer was made, into account in determining what order for costs to make in respect of the claim. (2) The Court may, in exercising its discretion as to costs in accordance with paragraph (1), order that the defendant pay the costs of the plaintiff in respect of the claim, taxed on a solicitor and client Order 26 -- 125 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 119 basis, from the commencement of the proceeding, from the day the offer was made or from such other time as the Court thinks fit. 26.12 Costs consequences where counterclaim (1) Where a plaintiff claims against a defendant the recovery of a debt or damages and by counterclaim the defendant claims against the plaintiff the recovery of a debt or damages (whether or not the claim of the defendant is also included in the defence in accordance with Rule 13.14), and— (a) one party has made an offer in writing to the other (whether or not expressed to be without prejudice) to compromise the claim of each of them on terms specified in the offer; (b) the offer was open to be accepted for a reasonable time; and (c) the judgment of the Court (whether or not it gives judgment in accordance with Rule 10.09) is no less favourable to the party who made the offer than the terms of the offer— the Court shall take those matters, and also the stage of the proceeding at which the offer was made, into account in determining what order to make for costs in respect of the party who served the offer. (2) The Court may, in exercising its discretion as to costs in accordance with paragraph (1), order that the party to whom the offer was made pay the costs of the party who made the offer, taxed on a solicitor and client basis, from the commencement of the proceeding, from the day the offer was made or from such other time as the Court thinks fit. Order 26 -- 126 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 120 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 be headed "In the Supreme Court of Victoria at", stating in which office of the Court the proceeding commenced, and shall 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) A document in a proceeding between parties shall be entitled between the parties, naming them. (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) Notwithstanding paragraphs (3) and (4), where there are more than two plaintiffs the title to 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. (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, Order 27 -- 127 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 121 if the document is entitled 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 attached"; 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 be of durable white paper 297 millimetres by 210 millimetres, the size known as International Paper Size A4, and 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 and the title to the proceeding 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 and the title to the proceeding shall occupy a space at the top of the first sheet of the document not exceeding 100 millimetres in depth. (7) The description of the document shall, in the case of an affidavit, include the name of the deponent. Order 27 -- 128 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 122 (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 the name, address, telephone number, document exchange number and code reference of the solicitor's firm and 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. Order 27 -- 129 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 123 (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. (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; Order 27 -- 130 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 124 (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. 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— Order 28 -- 131 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 125 (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. 28.04 Seal of Court (1) The Senior Master, every Master, the Taxing Master, the Prothonotary, every Judge's Associate, every Master's Secretary and any Registrar of a list shall each have in his 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 Secretary, the words "Master's Secretary"; (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 custody Order 28 -- 132 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 126 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. 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 Order 28 -- 133 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 127 is in an office of the Court outside Melbourne, in that office. 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 to a proceeding commenced by writ and 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 his 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 Order 29 -- 134 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 128 (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 his possession, and shall as to any document which has been but is no longer in the possession of the party, state when he parted with the document and his belief as to what has become of it; (d) where the party making the affidavit claims that any document in his possession is privileged from production, state sufficiently the grounds of the privilege. 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 Order 29 -- 135 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 129 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) shall, with any necessary modification, apply as if the defendant were the plaintiff and 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 he was joined; (b) on the plaintiff by that defendant. 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. Order 29 -- 136 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 130 (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 whether that document or any and if so what document or documents of that class is or has been in his possession and, if it has been but is no longer in his possession, when he parted with it and his belief as to what has become of it. (3) An order may be made against a party under paragraph (2) notwithstanding that he has already made or been required to make an affidavit of documents. 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 his possession referred to in the affidavit (other than any which he objects to produce) for inspection. Order 29 -- 137 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 131 (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 he wishes to have it photocopied, the party producing the document shall at his option either allow the other party to photocopy the document at such place as the parties agree or supply the other party with a photocopy of the document. (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 Order 29 -- 138 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 132 made to a document, any other party may, by notice to produce served on that party, require him to produce the document for inspection. (3) Except as provided by paragraph (4), Rule 29.09 shall, with any necessary modification, 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) he claims that the document is privileged from production, and he makes and serves on the other party an affidavit in which he makes that claim and states sufficiently the grounds of the privilege; (b) the document is not in his possession, and he makes and serves on the other party an affidavit in which he states that fact and states to the best of his knowledge, information and belief where the document is and in whose possession it is, and, where the document has been but is no longer in his possession, when he parted with it and his 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; Order 29 -- 139 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 133 (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. 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 for the screening or playing thereof and 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. Order 29 Order 29 -- 140 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 134 (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. (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 his defence, if any, be struck out. (4) This Rule shall, with any necessary modification, 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) A defendant whose defence is struck out in accordance with paragraph (3) 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. (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 Order 30 -- 141 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 135 (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. (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 he had no notice or knowledge of the order. (3) A solicitor on whom such an order made against his client is served and who fails without reasonable excuse to give notice thereof to his 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. 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; -- 142 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 136 "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) An interrogatory served without reasonable cause is, for the purpose of Rule 63.70, work which is not necessary. 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 Order 30 Order 30 -- 143 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 137 (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 his own knowledge of the fact or matter which is inquired after by the interrogatory, and, if he has no such knowledge, from any belief he 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 he has no information relating to the fact or matter on which to form a belief or where, if he has such information, for reasonable cause he has no belief that the information is true; (c) except as provided by paragraph (d), the party shall answer from any belief he has as to the fact or matter inquired after irrespective of the source of the information on which the belief is formed; (d) the party shall not be required to answer from his belief as to any fact or matter where the belief is formed on information that was given to him in a communication the contents of which he could not, on the ground of privilege, be compelled to disclose; (e) where the party has no knowledge himself of the fact or matter inquired after, he shall, for the purpose of enabling himself to form a belief as to the fact or matter (so far as he can), make all reasonable inquiries to determine— (i) whether any person has knowledge of the fact or matter which was acquired -- 144 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 138 by that person in the capacity of his 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 he is required to answer the interrogatory any person having the relevant knowledge has ceased to be his servant or agent; (g) where the party is a corporation, this Rule shall, with any necessary modification, apply as if the person who answers the interrogatories on behalf of the corporation were that party, and, 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. (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 he shall state briefly the ground of objection and the facts, if any, on which it is based. 30.07 Ground of objection to answer Order 30 Order 30 -- 145 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 139 (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 him and the interrogating party; (b) the interrogatory is unclear or vague or is too wide; (c) the interrogatory is oppressive; (d) the interrogatory requires him to express an opinion which he is not qualified to give; (e) privilege. (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 he has a claim or defence other than that which he has raised in the proceeding; (c) enable the interrogating party to ascertain the evidence by which the party interrogated intends to prove his case, including the identity of witnesses. (3) A party may not object to answer an interrogatory on the ground that he cannot answer without going to a place which is not his usual place of residence or business if the interrogating party undertakes to pay the reasonable cost of his going there, unless the Court otherwise orders. 30.08 Who to answer interrogatories (1) Interrogatories shall be answered— (a) where the party interrogated is— Order 30 -- 146 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 140 (i) a natural person, by the party; (ii) a person under disability, by that person or his 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. (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 he 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 his defence, if any, be struck out. -- 147 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 141 (4) This Rule shall, with any necessary modification, 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) A defendant whose defence is struck out in accordance with paragraph (3) 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. (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 he had no notice or knowledge of the order. (3) A solicitor on whom such an order made against his client is served and who fails without reasonable excuse to give notice thereof to his 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; Order 30 -- 148 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 142 (b) part of an answer to an interrogatory without tendering the whole of the answer. (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. 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 Order 31 Order 31 -- 149 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 143 (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 his 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 he has undertaken to do so. 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 be in writing, state the name of the examiner and 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 shall, with any -- 150 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 144 necessary modification, 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 the examining party may, in accordance with Rule 30.11, use in evidence the answers given under this Order by the party examined, and that Rule shall, with any necessary modification, apply as if the answers were answers of the party examined to written interrogatories served by the examining party. 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 Order 31 -- 151 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 145 (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. 31.09 Powers of examiner The examiner may administer oaths and receive affirmations and 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 his 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. Order 31 -- 152 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 146 (3) The party examined shall answer each question asked of him unless it may be objected to on any of the grounds referred to in Rule 30.07, and that Rule shall, with any necessary modification, apply as if the examination were an examination of the party by written interrogatories. (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 shall, with any necessary modification, 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. Order 31 -- 153 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 147 (2) The Master may order that the party examined shall answer any question in respect of which the application is made. (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 may order that the party examined shall answer the question in writing and 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. ORDER 32 PRELIMINARY DISCOVERY AND DISCOVERY FROM NON- PARTY 32.01 Definition 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. Order 32 -- 154 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 148 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, he is not required to produce or answer. 32.03 Discovery to identify a defendant (1) Where 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 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 his possession any document or thing, tending to assist in such ascertainment, the Court may make an order under paragraph (2). (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 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 or its possession Order 32 -- 155 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 149 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 shall, with any necessary modification, 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 he could properly have made in the proceeding had the person been a party. 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 he has ascertained; (b) after making all reasonable inquiries, the applicant has not sufficient information to enable him 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 his 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 him 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). Order 32 -- 156 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 150 32.06 Party an applicant Rule 32.05 shall, with any necessary modification, apply where the applicant is a party to a proceeding and there is reasonable cause to believe that he has or may have the right to obtain against a person who is not a party relief which he could properly have claimed in the proceeding had the person been a party. 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 he has or is likely to have or has had or is likely to have had in his 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 shall not be made under any of the Rules referred to in paragraphs (1) and (2) except by a Judge. (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 Order 32 -- 157 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 151 (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. 32.09 Inspection of documents Rule 29.09 shall, with any necessary modification, 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 shall, with any necessary modification, 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 making and serving any affidavit of documents, of producing any document for inspection in accordance with Rule 32.09 or 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. Order 32 -- 158 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 152 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 bodily injury. 33.02 Counterclaim This Order shall, with any necessary modification, 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 person registered as a dentist under the Dentists Act 1972 or any corresponding enactment of another State or a Territory of the Commonwealth; "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 person registered as a medical practitioner under the Order 33 -- 159 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 153 Medical Practice Act 1994 or any corresponding enactment of another State or a Territory of the Commonwealth; "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 he obtained or caused to be brought into existence subsequently; "psychologist" means a person registered as a psychologist under the Psychological Practices Act 1965. "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. Order 33 -- 160 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 154 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 his travelling and other expenses of and incidental to the examination. 33.06 Report of examination 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. 33.07 Service of reports (1) A plaintiff shall serve on each other party who has an address for service in the proceeding any medical report (other than a medical report served on or supplied to him by another party) which he intends to tender or the substance of which he intends to adduce in evidence at the trial. (2) Where a plaintiff obtains possession, custody or power of a hospital report which he intends to tender or the maker of which he intends to call at the trial, this Rule and Rule 33.08 shall, with any necessary modification, apply as if the report were a medical report. (3) A defendant or a third or subsequent party shall serve on each other party who has an address for service in the proceeding any medical report (other than a medical report served on or supplied to him by another party) in his possession, custody or power or made to him or obtained by or for him. 33.08 Time for service Order 33 Order 33 -- 161 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 155 Unless the Court otherwise orders, the time for service of a medical report by a party required under Rule 33.07 to serve a medical report shall be— (a) if the party is a plaintiff, within 7 days after notice of trial under Order 48 is given, or, if the proceeding is set down for trial by order of the Court made under Rule 48.06, within 7 days after the order or within such other times as the Court directs; (b) if the party is a defendant or a third or subsequent party, within 14 days after notice of trial under Order 48 is given, or, if the proceeding is set down for trial by order of the Court made under Rule 48.06, within 14 days after the order or within such other time as the Court directs; and (c) in the case of a medical report made to or obtained by or for a party after the time referred to in paragraph (a) or (b), forthwith. 33.08.1 Other medical reports to be served Where after a plaintiff has served a medical report under Rule 33.07(1) the medical expert who made the report makes another medical report to the plaintiff, then, notwithstanding that the plaintiff no longer intends to tender the medical report so served or to adduce its substance in evidence at the trial, or does not intend to tender the other medical report or to adduce its substance in evidence at the trial, the plaintiff shall serve the other medical report forthwith. 33.09 Proceeding against medical expert (1) This Rule applies to a proceeding in which the plaintiff claims damages for bodily injury sustained as a result of medical or the like -- 162 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 156 treatment or advice given in respect of any physical or mental condition of the plaintiff. (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 any expression of opinion in the original report on the question of liability and, 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. (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. Order 33 -- 163 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 157 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 a copy of 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 by the party who served a copy of the report or by any party on whom the copy was served. (4) If a medical report is tendered by the party who served a copy of the report, 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 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 a copy of 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 Order 33 -- 164 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 158 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. 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 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 Order 34 -- 165 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 159 to be made by them and 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. 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 he requires and which may be given before trial. 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 may, by notice served on another party, 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 Order 35 Order 35 -- 166 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 160 (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, he 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 he disputes the fact within the time allowed for that purpose, he shall, for the purpose of the proceeding only, be taken to admit that fact. (3) A party may, by leave of the Court, 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 his 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, he shall, for the purpose of the proceeding -- 167 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 161 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 he disputes its authenticity within the time allowed for that purpose, he shall, for the purpose of the proceeding only, be taken to admit its authenticity. (3) A party may, by leave of the Court, 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 him 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 him 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 as are in his possession, Order 35 -- 168 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 162 custody or power, and which he does not object to produce on the ground of privilege. (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. ORDER 36 AMENDMENT 36.01 General (1) For the purpose of determining the real question in controversy between the parties to any proceeding, or of correcting any defect or error in any proceeding, or of 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 Order 36 -- 169 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 163 person as a party, the proceeding shall be taken to have commenced with respect to that person on the day the proceeding commenced. (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 his 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) shall, with any necessary modification, 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 the time limited by the order for making the amendment, or if no time was limited, of 21 days from the date of the order. 36.03 Amendment of pleading A party may amend any pleading served by him— (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. Order 36 -- 170 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 164 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. 36.06 Pleading to an amended pleading (1) A party shall plead to an amended pleading within 30 days after it is served on him. Order 36 -- 171 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 165 (2) Where a party has pleaded to a pleading which is subsequently amended, he shall be taken to rely on his original pleading in answer to the amended pleading unless he 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. 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— Order 37 -- 172 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 166 (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. 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 him 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 his 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 him to make the decision— the Court may make an order for the inspection, detention, custody or preservation of the property. Order 37 -- 173 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 167 (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. 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. Order 37 -- 174 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 168 (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. 37.05 Payment into Court in discharge of lien (1) Where in any proceeding the plaintiff claims the recovery of specific property (other than land) and 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 shall, with any necessary modification, 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 may by order allow the whole or part of the annual income of the property or any part thereof Order 37 -- 175 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 169 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 may direct that any part of the property be conveyed, transferred or delivered to any person having an interest in the property. 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. 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 Order 38 -- 176 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 170 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. 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 is not entitled to act and an information in the nature of quo warranto would, but for paragraph (1), lie against him, the Court may grant an injunction restraining him from so acting and may, if the case so requires, declare the office to be vacant. 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— "bank" has the meaning ascribed by the Banking Act 1959 of the Commonwealth; "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; Order 39 -- 177 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 171 "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 his written consent to the appointment shall, unless the Court otherwise orders, be filed. 39.05 Security by receiver Unless the Court otherwise orders— (a) a receiver shall give security approved by the Court that he will account for what he 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. Order 39 -- 178 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 172 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 his 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. (6) The Court shall by order declare what is the result of an examination under paragraph (5) and 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 he ought to do, or fails to attend for the examination of any account of his, he and any party to the proceeding in which he was appointed may be required to attend before the Court to show cause for the failure, and Order 39 -- 179 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 173 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 his 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 he has failed to pay any such amount into court, charge him with interest at the rate currently payable in respect of judgment debts in the Court on that amount while in his possession as receiver. 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. 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; Order 40 -- 180 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 174 (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. (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 his attendance be dispensed with. Order 40 -- 181 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 175 40.04 Examination on affidavit (1) Where an affidavit is filed in any proceeding, the Court may order that the deponent be examined before the Court and may order that he 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. (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. Order 40 -- 182 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 176 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 the person against whom the evidence is offered consents or the deponent is dead or is unfit by reason of his bodily or mental condition to attend the trial and testify as a witness, or is out of Victoria and it is not reasonably practicable to secure his attendance, or cannot with reasonable diligence be found; and (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. Order 40 -- 183 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 177 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 him, dated and verified by the indorsed certificate of a solicitor. 40.10 Defamation A defendant in a proceeding for libel or slander who has not by his 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 mitigation of damages, the circumstances of publication or the character of the plaintiff unless he 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. Order 40 -- 184 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 178 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 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. (3) An order under paragraph (1) shall not operate to require the person against whom the order is made to produce any document which he 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. 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— Order 41 -- 185 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 179 (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. (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, his counsel and his solicitor to attend the examination. Order 41 -- 186 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 180 (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 as to the meaning of any answer made by that person or 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 he does so, he shall annex to the deposition of that person the consent of each of the parties. 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 him 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; Order 41 -- 187 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 181 (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. 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. Order 41 -- 188 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 182 (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 his deposition. (2) The examiner shall authenticate and sign the deposition. (3) The examiner shall indorse on the deposition a statement signed by him of the time occupied in taking the examination and the fees received by him in respect of the examination. (4) The examiner shall send the deposition to the Prothonotary and the Prothonotary shall file it in the proceeding. (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. 41.09 Report of examiner (1) The examiner may make to the Court a report upon the examination before him 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 Order 41 -- 189 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 183 Master and he fails or refuses to attend or he 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 (b) to pay any costs occasioned by his 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 him 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 Order 41 -- 190 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 184 by him 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 (hereafter 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; (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; Order 41 -- 191 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 185 (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. 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 his solicitor to give security to his 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 Rule 41.13 and 41.15, and does not within 14 days after service on him 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 his solicitor (where the undertaking was given by the solicitor) or Order 41 -- 192 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 186 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. PART 2—APPLICATIONS FOR TAKING EVIDENCE ABROAD UNDER PART 2 OF THE FOREIGN EVIDENCE ACT 1994 OF THE COMMONWEALTH 41.17 Interpretation 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 Order 41 Order 42 -- 193 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 187 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. 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 he 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. -- 194 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 188 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 giving evidence or of producing any document or thing for evidence or for both purposes. (2) A subpoena shall be in Form 42A, 42B, 42C or 42D, whichever is appropriate. 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 Order 42 -- 195 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 189 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 him to attend on any day on which his attendance is required unless conduct money is given or tendered to him at the time of service of the subpoena or a reasonable time before that day. 42.06 Production before date for attendance (1) A subpoena for production requiring production before the Court or an officer of the Court shall, unless the Court otherwise orders, 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. Order 42 -- 196 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 190 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. (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 fix the amount of the fees and expenses or direct that the amount be fixed by the Taxing Master. Order 42 -- 197 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 191 (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. (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 his 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 for attendance before another court, etc. This Order, except Rules 42.06 and 42.09, 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 Order 42 -- 198 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 192 of parties authority to hear, receive and examine evidence. 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 his occupation or, if he has none, his description, and that he 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 his place of business, the position he holds and the name of his 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 signature in the jurat his name and address and a Order 43 -- 199 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 193 statement of the capacity in which he has authority to take the affidavit. * * * * * 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 shall certify in or below the jurat that— (a) the affidavit was read in his presence to the deponent; (b) the deponent seemed to him perfectly to understand it; and (c) the deponent made his signature or mark in his presence. (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 he 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 his 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 Order 43 -- 200 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 194 deponents at one time before the same person, it shall be sufficient to state that it was sworn by "each of the abovenamed" deponents. -- 201 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 195 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 title as the affidavit and signed by the person before whom the affidavit is sworn. 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. 43.09 Filing (1) Unless the Court otherwise orders, an affidavit— (a) which has not been filed; or Order 43 -- 202 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 196 (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. 43.10 Affidavit sworn before party, solicitor (1) An affidavit sworn before— (a) a party; (b) a partner in a firm which is a party; or (c) an employee of a party— shall not be used in evidence by or on behalf of the party. (2) Paragraph (1) shall not apply where the Crown is the party on whose behalf the affidavit is to be used and the affidavit is sworn before an employee of the Crown. * * * * * ORDER 44 EXPERT EVIDENCE 44.01 Definition In this Order, unless the context or subject-matter otherwise requires, "a proceeding commenced by writ" includes— (a) a proceeding in respect of which an order has been made under Rule 4.07(1); Order 44 -- 203 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 197 (b) a trial or inquiry under Order 50; (c) an assessment of damages or value under Order 51. 44.02 Application (1) This Order applies only to a proceeding commenced by writ. (2) In a proceeding in which the plaintiff claims damages for bodily injury, the evidence of a person as an expert witness, if not subject to Order 33, is subject to this Order. 44.03 Service of statement of expert evidence (1) A party who intends at trial to adduce the evidence of a person as an expert witness shall, not later than 10 days before the day fixed for trial, serve on every other party a statement in accordance with paragraph (2). (2) The statement shall— (a) give the name and address of the witness; (b) describe his qualifications to give evidence as an expert; and (c) give the substance of the evidence it is proposed to adduce from him as an expert. (3) In a proceeding in which the plaintiff claims damages in respect of death resulting from medical or the like treatment or advice given in respect of any physical or mental condition of the deceased, then, unless the Court otherwise orders, a party who is required to serve a statement under paragraph (1) may exclude from that statement any expression of opinion on the question of liability and any statement with respect to a fact on which the opinion is based and which relates only to the question of liability. Order 44 -- 204 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 198 44.04 Making statement of other party evidence A party may put in evidence a statement served on him by another party in accordance with Rule 44.03. 44.05 No evidence unless disclosed in statement Save with the leave of the Court or by consent of the parties, a party shall not except in cross- examination adduce from a witness at the trial of a proceeding any evidence to which this Order applies unless that party has served a statement in accordance with this Order. 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, on application made by the plaintiff without notice to the defendant, and on proof of service of the Order 45 -- 205 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 199 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. (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 him or on his 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 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; Order 45 -- 206 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 200 (d) place the proceeding in the list of cases for trial and give directions for the filing and service of affidavits or otherwise. 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. Order 45 -- 207 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 201 (7) On application to a Master under paragraph (6) the Master may, as appropriate— (a) where he 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. 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. Order 46 -- 208 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 202 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 secretary; (c) where application is made to the Taxing Master for costs to be taxed, with the Taxing Master's secretary. (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. Order 46 -- 209 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 203 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 Secretary. (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 or the Taxing Master, the Master's or the Taxing Master's secretary, 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 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. Order 46 -- 210 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 204 (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. 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 he did not attend the hearing of the application; or (b) was not made on notice to that person. 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 Order 47 -- 211 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 205 breach of statutory duty) shall be tried with a jury if 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 he desires to have the proceeding so tried, and 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. 47.03 Payment of jury fees (1) At the time a proceeding is set down for trial, otherwise than under Rule 48.06, with a jury the proper jury fees shall be paid by the plaintiff. (2) If the defendant signifies that he desires to have the proceeding tried with a jury under Rule 47.02(1), the defendant shall pay the amount of the proper jury fees to the plaintiff within 14 days after— (a) completing and signing a certificate of readiness for trial; or (b) an order has been made under Rule 48.06 that the proceeding be set down for trial with a jury. (3) If the defendant does not pay the amount of the proper jury fees to the plaintiff within the time limited by paragraph (2), the plaintiff may set the proceeding down for trial without a jury, unless the Court otherwise orders. Order 47 -- 212 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 206 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. ORDER 48 SETTING DOWN FOR TRIAL 48.01 Application Except where otherwise provided, 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). 48.02 Setting down by plaintiff In any proceeding at any time after the close of pleadings or, if the Court makes an order that there be no pleadings, at the expiration of 10 days after the order or of such other time as the Court appoints, the plaintiff may set the proceeding down Order 48 -- 213 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 207 for trial by filing a duly completed and signed certificate of readiness for trial and giving and filing notice of trial in Form 48A. 48.03 Setting down by defendant and dismissal for want of prosecution If the plaintiff does not set the proceeding down for trial within 28 days after the day it can be set down for trial under Rule 48.02, the defendant may before the plaintiff sets the proceeding down for trial, set it down for trial by filing a duly completed and signed certificate of readiness for trial and giving and filing notice of trial, or may apply to the Court under Rule 24.01 to dismiss the proceeding for want of prosecution. 48.04 Certificate of readiness (1) A certificate of readiness for trial shall be in Form 48B and before it is filed shall be duly completed by all parties to the proceeding in the manner indicated in the form. (2) Except with the leave of the Court a certificate of readiness shall not be filed unless it states that the parties are ready to proceed with the trial upon having not less than 14 days' notice. (3) The certificate of readiness shall state the place at which the proceeding is to be set down for trial. (4) Each person who signs the certificate of readiness shall state in the certificate his opinion as to the number of days the trial can reasonably be expected to occupy. 48.05 Interlocutory steps after setting down (1) After a certificate of readiness is filed, except as provided under paragraph (2) or by order of the Court no party to the proceeding shall do any act or take any step in respect of the matters referred to in the certificate which otherwise he would be Order 48 -- 214 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 208 required or permitted to do or take under these Rules. (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 or 3 of Order 26; or (c) limit the power of the Court at the trial to make an order for amendment or otherwise. 48.06 Order for setting down (1) If the plaintiff or any party who files an appearance refuses or neglects to complete a certificate of readiness for trial, any other party may apply to the Court for an order that the proceeding be set down for trial. (2) The Court may by order set the proceeding down for trial with such directions with respect to the listing of the proceeding, the payment of jury fees or other matters as it thinks fit. 48.07 Order for setting down of country case (1) Where a proceeding is to be tried at a place other than Melbourne, any party may serve on any other party in any manner provided by Rule 6.07, for completion by him and return to the party serving it, a form of certificate of readiness for trial bearing an indorsement in Form 48C. (2) If a party on whom a form of certificate is served under paragraph (1) does not complete and return it within 21 days, the proceeding may, Order 48 -- 215 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 209 notwithstanding anything to the contrary in Rules 48.02, 48.03 and 48.05, be set down for trial upon the filing of a certificate of readiness for trial which is not completed by that party but which bears an indorsement that it is filed pursuant to this Rule and upon the giving and filing of notice of trial in Form 48A. (3) After a proceeding has been set down for trial under paragraph (2), if the certificate filed contains a material misstatement or there is other good cause, the Deputy Prothonotary or the Court may direct that the proceeding shall cease to be set down. 48.08 Entry in list for trial (1) Where a proceeding is to be tried in Melbourne, the Prothonotary shall not accept for filing a certificate of readiness which is not duly completed and signed. (2) On the due setting down of a proceeding for hearing the Prothonotary shall enter it in an appropriate list for trial. (3) The Listing Master may remove a proceeding from or restore a proceeding to a list or transfer a proceeding from one list to another. 48.09 Sittings for which trial set down (1) Setting down for trial in Melbourne shall be taken to be for the day on which the proceeding comes on for trial. (2) Setting down for trial elsewhere than in Melbourne shall be taken to be for the next sitting of the Court at the place for which it is set down for trial, unless the Court otherwise orders. Order 48 -- 216 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 210 48.10 Further consideration (1) This Rule applies where a proceeding has been adjourned for further consideration pending the taking of any account or the making of any inquiry by a Master. (2) Unless the Court otherwise orders— (a) after the expiration of 14 and within 21 days from the order of the Master on the taking of the account or the making of the inquiry, any party may set the proceeding down for further consideration; (b) the further consideration of the proceeding shall not take place before the expiration of 14 days from the day it was set down under paragraph (2)(a); (c) the party setting down the proceeding under paragraph (2)(a) shall give not less than seven days' notice to the other party of the day the proceeding may come on for further consideration. 48.11 Papers for Judge (1) Where there are pleadings between any parties, the party setting the proceeding down for trial shall at the time of doing so file— (a) in a proceeding for damages for or arising out of death or bodily injury, one copy; (b) in any other proceeding, two copies— of all the pleadings. (2) For the purpose of paragraph (1) the pleadings shall include— (a) particulars of any pleading given pursuant to an order of the Court or the request of a party; and Order 48 -- 217 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 211 (b) any request by a party in writing for particulars. 48.12 Pre-trial Conferences (1) This Rule applies to any proceeding whether commenced by writ or otherwise. (2) Where a proceeding has been set down or otherwise 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. (3) 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 him to be necessary or desirable refer the proceeding to a Master. (4) Upon a reference under paragraph (3), the Master may make any order or give any direction— (a) to ensure that a party or his 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. (5) Except as all the parties who attend the conference in writing agree, no evidence shall be admitted of anything said or done by any person at the conference. (6) The agreement may be made at the conference or later. Order 48 -- 218 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 212 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, he shall begin; (b) where the burden of proof on all the questions lies on the defendant, he 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 his case and may then adduce his 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— Order 49 -- 219 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 213 (a) the opposite party adduces evidence, he may first make an opening address and after adducing his evidence, he 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, he 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. (2) The Court may set aside or vary any judgment, order or verdict obtained where a party is absent at the trial. Order 49 -- 220 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 214 (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. * * * * * ORDER 50 REFERENCES OUT OF COURT 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 him to— (a) decide the question; or (b) give his 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 him stating, with reasons, his decision or opinion; Order 50 -- 221 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 215 (c) may direct that the special referee give such further information in his 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. 50.03 Report on reference (1) The special referee may in his report submit any question arising on the reference for the decision of the Court or make a statement of facts found by him 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 Order 50 -- 222 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 216 special referee for further consideration by him 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. 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. Order 50 -- 223 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 217 (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 him. (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. (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. 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 Order 50 -- 224 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 218 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. * * * * * 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. Order 51 -- 225 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 219 51.04 Order for damages Where damages are assessed by a Master, he shall by order state the amount at which they are assessed. 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. 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 the taking of any account or 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. Order 52 -- 226 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 220 (3) The Court shall not order that an account be taken— (a) as against a defendant who has not filed an appearance unless he 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 (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 his 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 his account and verifying affidavit; and Order 52 -- 227 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 221 (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 his account admits receiving shall give to the accounting party notice of the charge, stating, so far as he is able, the amount which he 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. 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. Order 52 -- 228 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 222 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 has determined under paragraph (2) and the application shall not proceed until the order is made. 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 his. (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. Order 53 -- 229 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 223 (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. 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 on each defendant, if any, and 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— Order 53 -- 230 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 224 (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. 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 he 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. Order 53 -- 231 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 225 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 (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 Order 54 -- 232 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 226 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; (c) notwithstanding anything in Rule 9.03(1), and without limiting the powers of the Court under Order 9, all persons having a Order 54 -- 233 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 227 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 he 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 anything in 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. 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 Order 54 -- 234 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 228 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; (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. Order 54 -- 235 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 229 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. 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 may order that the whole or any part of the land be sold, and 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 shall state whether notice has been given to every person interested in the land, and, if it has not, shall state what special reason exists for making the order notwithstanding. Order 55 -- 236 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 230 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 he 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; Order 55 -- 237 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 231 (b) in any other case, by the person having the conduct of the sale or his 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. 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. Order 56 -- 238 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 232 (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) The originating motion shall, in addition to complying with the requirements of Rule 5.05, state the grounds upon which the relief or remedy specified in the originating motion is sought, and, 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 copy of the warrant, order, conviction, inquisition or record in respect of which the relief is sought, verified by affidavit, is produced or, 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. Order 56 -- 239 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 233 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 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. (8) In an urgent case the Court may dispense with compliance with any of the requirements of paragraphs (4) to (7). Order 57 -- 240 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 234 (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. 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 him at his office or other place of employment with some Order 57 -- 241 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 235 person apparently employed there and apparently not less than eighteen 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. 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 his 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 Order 57 -- 242 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 236 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. 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. Order 58 -- 243 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 237 (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 4 of Chapter II, 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. 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 Order 58 -- 244 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 238 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. 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; (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 Order 58 -- 245 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 239 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— (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. 58.07 Institution of appeal An appeal to which this Part applies shall not be instituted by writ or originating motion but by application to a Master, without notice to any other person, for an order under Rule 58.09. 58.08 Application for order under Rule 58.09 (1) An application for an order under Rule 58.09 shall be by attendance before the Master supported by affidavit filed before or upon the attendance. (2) An affidavit under paragraph (1) 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. (3) Unless the Master otherwise orders, the evidence on which the appellant may rely upon the application shall be confined to that afforded by any affidavit under paragraph (1). Order 58 -- 246 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 240 58.09 Hearing of application (1) Subject to paragraph (3), if the appellant shows to a Master a prima facie case for relief, the Master shall by order— (a) state each question of law that the appellant shows to be raised by the appeal; (b) give directions with respect to the service of the order and the filing and service of affidavits; and (c) refer the appeal for hearing and determination by a Judge. (2) If the appellant does not show a prima facie case for relief the Master shall refuse the application. (3) The Master may refuse the application if satisfied that in all the circumstances a refusal would impose no substantial injustice. 58.10 Refusal of application If the application for an order under Rule 58.09 is refused, then, subject to any appeal against the refusal, the appeal shall stand dismissed. 58.11 Setting aside or variation (1) A person affected by the making of an order under Rule 58.09 may apply to a Master to have the order set aside or varied. (2) If the order made under Rule 58.09 is set aside, then, subject to any appeal against the setting aside, the appeal shall stand dismissed. 58.12 Evidence on appeal Unless a Master or the Judge hearing the appeal otherwise orders, the evidence on which the parties may rely upon the appeal shall be confined Order 58 -- 247 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 241 to that afforded by the affidavits filed under or in accordance with this Part. 58.13 Further directions A Master or the Judge hearing the appeal may give any further or other directions as may be conducive to the effective, complete, prompt and economic determination of the appeal. 58.14 Report A Master or the Judge hearing the appeal may call for a report from the court or other body 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. 58.15 Stay Upon an application for an order under Rule 58.09 a Master may grant any stay necessary for the proper hearing and determination of the application or the appeal. 58.16 Application for leave Insofar as an appeal is deemed to be an application for leave to appeal, the application shall be made by originating motion in Form 5C and shall be heard and determined by a Master. PART 4—OTHER APPEALS 58.17 Application of Part This Part applies to an appeal to the Court under section 79 of the Children and Young Persons Act 1989. Order 58 -- 248 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 242 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. Order 58 -- 249 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 243 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. 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 him. (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. Order 59 -- 250 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 244 (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. (4) Where a judgment or order requires a person to do an act but does not fix a time within which he 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 or, where a Master gives the judgment or makes the order, to his secretary. 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— Order 59 -- 251 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 245 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. (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 he 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) he 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. Order 59 -- 252 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 246 59.06 Consent judgment or order by filing (1) 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. (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 shall state that it is given or made under this Rule and 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; Order 59 -- 253 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 247 (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; (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; Order 59 -- 254 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 248 (b) to which any chapter of the Rules of the Supreme Court other than Chapter I applies. 59.07 Consent to judgment or order by party 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, on the application of a party, and if satisfied that any other party to be bound who is not in attendance consents, give judgment or make an order in those terms without requiring that other party to attend. (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 which is produced to the Court by the party applying for the judgment or order. (3) Any document accepted under paragraph (2) shall be placed on the Court file. 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 Order 60 -- 255 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 249 (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, is sealed by the Prothonotary with the seal of the Court or, in the case of an order to which Rule 60.04 applies, is signed by a Judge or a Master. (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 him 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 Order 60 -- 256 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 250 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 the Judge or the Master by whom the order was made so directs, an order may be drawn up by a party and signed by the Judge or the 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. 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 he 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. Order 60 -- 257 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 251 60.06 Drawing up and settling (1) Where the Prothonotary is requested to draw up and settle the form of a judgment or order, he 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. (3) Where the Prothonotary makes an appointment to settle the draft of a judgment or order, he 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 Order 60 Order 61 -- 258 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 252 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. 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; "section" means section of the Act; 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 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 shall be in Form 61B. (2) An application to the Court under section 8 for the variation or cancellation of an order that a judgment debt be paid by instalments shall be in Form 61C. -- 259 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 253 (3) Where an application is made under section 6 or section 8 by a judgment debtor, the judgment debtor shall— (a) where the judgment debtor is— (i) a natural person, file an affidavit of his 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 by a judgment creditor, the judgment creditor shall file an affidavit stating the facts on which the application is based and 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 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 shall be in Form 61D. (6) A notice by a Master under section 6(4) shall be in Form 61E. (7) A notice of objection by a judgment creditor or judgment debtor under section 6(5) shall be in Form 61F and shall be filed within 14 days after the judgment creditor or judgment debtor receives notice from a Master under section 6(4). (8) Where a notice of objection under section 6(5) is filed, a Master shall set the matter down for hearing before a Judge. Order 61 -- 260 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 254 (9) A notice by a Master under section 6(6) shall be in Form 61G. (10) A notice by the Court under section 6(7) 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) shall be in Form 61J and shall be filed with the secretary to a Master. (2) Each party shall execute the agreement in the presence of a witness who shall by his signature attest that execution. (3) An affidavit or affidavits verifying compliance with paragraph (2) shall be filed with the secretary to a Master. (4) An order under section 7(3) for the payment of a judgment debt by instalments shall be in Form 61K. (5) A notice by a Master under section 7(4) shall be in Form 61L. 61.04 Summons for oral examination of judgment debtor (1) A summons under section 14(1) or section 17(1) 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. Order 61 -- 261 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 255 (3) An application to a Master for the issue of a summons under section 17(1) shall be supported by affidavit evidence of— (a) the making of the instalment order; and (b) default in payment of any instalment under that order. (4) A warrant under section 14(2) or section 17(2) 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 (5)(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) shall be in Form 61P. Order 61 -- 262 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 256 61.05 Notice of instalment order confirmed, varied or cancelled A notice under section 18(2) shall be in Form 61Q. 61.06 Order for imprisonment An order for imprisonment made under section 19(1) 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) 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) 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; (b) left at the usual or last known place of residence or of business of the judgment debtor or judgment creditor with a person Order 61 -- 263 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 257 apparently over the age of sixteen 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. ORDER 62 SECURITY FOR COSTS 62.01 Definitions In this Order, unless the context or subject-matter otherwise requires— "plaintiff" includes any person who makes a claim in a proceeding; "defendant" includes any person against whom a claim is made 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 his own benefit, but for the benefit of some other person, and Order 62 -- 264 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 258 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 his originating process; (e) the plaintiff has changed his address after the commencement of the proceeding in order to avoid the consequences of the proceeding; (f) under any Act or the Corporations Law 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 his address or to state his 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 his claim. 62.05 Variation or setting aside The Court may set aside or vary any order requiring a plaintiff to give security for costs. Order 62 -- 265 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 259 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. Order 63 -- 266 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 260 (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 he 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 to costs payable or to be taxed under these Rules or any order of the Court and 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. (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. Order 63 -- 267 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 261 (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, his defence shall be struck out. (4) In paragraph (3)— "plaintiff" includes any person who makes a claim in a proceeding; "defendant" includes any person against whom a claim is made 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. 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, Order 63 -- 268 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 262 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. (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. Order 63 -- 269 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 263 (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; (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. Order 63 -- 270 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 264 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. 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 Order 63 -- 271 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 265 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; (b) under Rule 35.05(2) disputing the authenticity of a document, and afterwards the authenticity of that document is proved in the proceeding— he shall pay the costs of proof, unless the Court otherwise orders. 63.19 Interlocutory injunction Order 63 -- 272 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 266 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 his 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. 63.22.1 Evidence transcript costs If any evidence in a proceeding is recorded and transcribed in a manner authorised by Part VI of the Evidence Act 1958, and the Court does not direct by and to whom the costs of the recording and transcribing are to be paid, then, unless the Order 63 -- 273 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 267 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 undue delay or negligence or by any other misconduct or default, 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 his 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 is in default 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; (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. Order 63 -- 274 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 268 (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. (5) Order 50 shall, with any necessary modification, apply to a reference to the Taxing Master for inquiry and report made under paragraph (4). (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) Where in a proceeding for debt or damages (other than a proceeding in which the jurisdiction of the County Court is unlimited) the plaintiff by judgment or by the acceptance in accordance with Rule 26.03(4) of an offer of compromise recovers 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 he would have been entitled if he 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 to the defendant any amount by which the additional costs exceed the costs payable to the plaintiff. Order 63 -- 275 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 269 (2) For the purpose of paragraph (1) the amount which a plaintiff recovers by judgment or otherwise shall include any amount which under section 66(1) of the Workers Compensation Act 1958 as amended by the Workers Compensation (Actions) Act 1981 and in force for the time being or pursuant to section 79(3) of the Workers Compensation Act 1958 as in force immediately before the commencement of the Workers Compensation (Actions) Act 1981 is deducted from the amount for which the plaintiff would, but for the deduction, be entitled to judgment. (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, but for the set-off and any deduction of the kind referred to in paragraph (2), be entitled to judgment exceeds one-half of the amount to which the jurisdiction of the County Court is limited. (4) Paragraph (1) does 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, with any necessary modification, apply where the plaintiff obtains by judgment or by the acceptance in accordance with Rule 26.03(4) of an offer of compromise relief other than for the recovery of a debt or damages and 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. Order 63 -- 276 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 270 63.26 Trustee or mortgagee A party who sues or is sued as trustee or mortgagee shall, unless the Court otherwise orders, 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; or (c) such other basis as the Court may direct. 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. Order 63 -- 277 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 271 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. 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 he 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 Order 63 -- 278 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 272 exceeding 30 per cent of the solicitor's charges allowed on the taxation of costs with respect to the proceeding generally or 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 the Act, shall have and may exercise all the power and authority which under the Act or these 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. Order 63 -- 279 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 273 (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; (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 his client. Order 63 -- 280 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 274 63.38 Summons for taxation (1) An application to the Taxing Master for costs to be taxed shall be made by summons filed in the office of the Taxing Master. (2) Where the taxation is made pursuant to an order or judgment, a copy of the order or judgment shall be lodged with the Taxing Master when the summons is filed. (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. 63.39 Filing of bill (1) A party who applies for costs to be taxed shall file a bill in respect of the costs with the Taxing Master at the time the summons under Rule 63.38 is filed. (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 his 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. Order 63 -- 281 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 275 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; (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. Order 63 -- 282 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 276 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 it is paid before the taxation of that disbursement takes place. 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. 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. Order 63 -- 283 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 277 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 state by a list each item in the bill to which the party objects, and 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. 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; Order 63 -- 284 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 278 (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. 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 Order 63 -- 285 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 279 (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. (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 him of a request in writing to do so by a party liable for the costs, the Taxing Master may order the party entitled to file and serve a summons under Rule 63.38 and 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— Order 63 -- 286 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 280 (a) disallow the costs of the party or allow a nominal or other sum for costs; (b) order him 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 his 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. (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 Order 63 -- 287 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 281 (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 allows the costs or of his disallowance of the costs. (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 clerical mistake in an order made under this Rule or 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. Order 63 -- 288 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 282 (2) An application under paragraph (1) shall be made by notice. (3) The notice 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 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. (5) Upon the application the Taxing Master shall reconsider and review the taxation upon the objections stated in the notice and 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. Order 63 -- 289 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 283 (3) An application under paragraph (2) shall be made by notice. (4) The notice 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 shall also state specifically and concisely the grounds of objection to that order and the order sought in its place. (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 Order 63 -- 290 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 284 63.58 Application This Part applies— (a) where costs are payable to a solicitor by his 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 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 his 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 Order 63 -- 291 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 285 agreement between that person and the client, be taxed on a party and party basis in accordance with Rule 63.29. 63.61 Solicitor and client basis (1) On a taxation of the costs payable to a solicitor by his 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 his 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 Order 63 -- 292 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 286 commence a proceeding in respect of the matter or, if that court or tribunal has no scale of costs, in accordance with Appendix A. 63.63 Procedure on taxation (1) Subject to the following Rules and to any Act or order of the Court, costs under this Part shall be taxed as provided by Part 5, and 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. Order 63 -- 293 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 287 (3) Unless the Court otherwise orders, the summons shall be filed within 14 days after the day the order is made. 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 him 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 him 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 him of a request in Order 63 -- 294 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 288 writing by the client that he serve a bill he does not do so; (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 him of a request in writing by any person interested that the bill be taxed he 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, etc. 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. 63.71 Gross sum for costs (1) Where costs are incurred improperly or without reasonable cause or are wasted by undue delay or Order 63 -- 295 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 289 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 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, his 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. 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 Order 63 -- 296 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 290 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. 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; Order 63 -- 297 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 291 (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 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 Order 63 -- 298 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 292 (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 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. 63.85 Bill reduced by a sixth (1) This Rule applies to the taxation of a bill of costs payable out of a fund. Order 63 -- 299 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 293 (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. PART 8—BARRISTERS' FEES 63.86 Barristers' fees (1) Application to the Taxing Master to tax fees chargeable by a barrister under section 67 of the Act shall be made by summons filed in the office of the Taxing Master. (2) Order 46 shall, with any necessary modification, apply to the application. (3) An appeal under section 67(13) of the Act shall be made to a Judge and Rule 77.05 shall, with any necessary modification, apply. ORDER 64 APPEAL TO COURT OF APPEAL 64.01 Definitions In this Order, unless the context or subject-matter otherwise requires— "appeal" includes— (i) an application for a new trial; (ii) an application to set aside a decision; (iii) a cross-appeal— and, subject to the provisions of the County Court Act 1958, includes an appeal from the County Court; Order 64 -- 300 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 294 "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 within 14 days after the day the decision of the court of first instance was given or, if leave to appeal is necessary, within 14 days of leave being granted. (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 within 14 days after the decision or, 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. 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. Order 64 -- 301 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 295 (4) A notice of appeal may be served on a party personally or at his address for service under these Rules, including Rule 1.19. (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 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 shall state whether the whole or part only and which part of the decision of the court of first instance is complained of, and 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. 64.07 Filing of notice of appeal Order 64 Order 64 -- 302 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 296 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 7 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 him 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 considers it necessary or desirable, require the attendance of the parties. (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. -- 303 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 297 (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. Order 64 -- 304 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 298 (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 (b) with respect to— Order 64 -- 305 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 299 (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. 64.16 Appeal taken to be abandoned (1) If the appellant does not— Order 64 -- 306 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 300 (a) within the time fixed by or under Rule 64.08 deliver to the Registrar a notice 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), the Court of Appeal may order that an appeal not be taken to be abandoned. (3) In respect to 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 him of the notice of appeal, or within such further time as the Court of Appeal allows, serve a copy of the notice of cross-appeal on the appellant and any other party directly affected by the cross-appeal. (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. Order 64 -- 307 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 301 (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. (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. Order 64 -- 308 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 302 (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. (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 Order 64 -- 309 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 303 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 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 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. (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. Order 64 -- 310 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 304 (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 that the stamp upon any document is sufficient, or 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. 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— Order 64 -- 311 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 305 (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; (h) for an order under Rule 64.16(3) as to the payment of costs where an appeal is taken to be abandoned; (j) for an order under Rule 64.17(2) for extension of time to serve a copy of the notice of cross-appeal; (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; Order 64 -- 312 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 306 (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 him of the jurisdiction and powers of the Court of Appeal. 64.27 Exercise of powers by Master In the absence of the Registrar or at his request, any Master may exercise any power or authority conferred on the Registrar by or under this Order or Order 65. 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 shall be made by summons served on all parties interested. (2) Where it is satisfied that the delay caused by proceeding in accordance with paragraph (1) would or might entail irreparable or serious 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. Order 65 -- 313 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 307 (3) The Court of Appeal may set aside any order made under paragraph (2) on the application of any party affected thereby. 65.03 Service of summons Service of a summons under Rule 65.02 shall be made not less than three days before the day for hearing named in the summons, unless the Court of Appeal otherwise orders. 65.04 Documents for application (1) Before the hearing of any application to the Court of Appeal— (a) the applicant shall deliver to the Registrar of the Court of Appeal for the use of the members of the Court of Appeal four copies and to each respondent to the application three copies of the summons (or other initiating process), of all affidavits and, unless the Registrar of the Court of Appeal otherwise directs, all exhibits in support of the application; and (b) each respondent shall deliver to the Registrar of the Court of Appeal for the use of the members of the Court of Appeal four copies and to the applicant three copies of all affidavits and, unless the Registrar of the Court of Appeal otherwise directs, all exhibits to be used by him on the hearing of the application. (2) The applicant shall deliver the documents referred to in paragraph (1)(a) to the Registrar of the Court of Appeal not less than three days before the day named in the summons for the hearing of the application. Order 65 -- 314 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 308 (3) In the preparation of copy documents for the purpose of paragraph (1) regard shall be had so far as practicable to any notes published by the Registrar of the Court of Appeal from time to time in accordance with Rule 64.09(9). 65.05 Procedure on application Order 46 shall, with any necessary modification, apply to an application to the Court of Appeal under this Order. 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; Order 66 -- 315 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 309 (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. (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. Order 66 -- 316 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 310 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 (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 he refuses or neglects to do the act within that time; Order 66 -- 317 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 311 (b) a judgment requires a person to abstain from doing an act, and he 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; (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 production before the Order 66 -- 318 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 312 Court or before an examiner or other person for the purpose of the proceeding and for his detention in custody in the meantime; and (b) order the person in default to pay any costs and expenses occasioned by the default. 66.07 Attendance of corporation (1) This Rule applies where the Court by subpoena or otherwise makes an order in any proceeding for the production by a corporation of any document or thing and 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 production before the Court or before an examiner or other person for the purpose of the proceeding and for his 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 Order 66 Order 66 -- 319 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 313 Nothing in Rules 66.06 and 66.07 shall affect the power of the Court to punish for contempt. 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. -- 320 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 314 (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. Order 66 -- 321 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 315 (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 he were a party. (2) Where obedience to a judgment may be enforced against a person not a party, the judgment may be enforced against him by the same means as if he 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. Order 66 -- 322 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 316 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. 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. Order 67 -- 323 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 317 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. 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 Order 67 Order 68 -- 324 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 318 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. 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; -- 325 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 319 (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 his 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; (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; Order 68 -- 326 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 320 (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. 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; Order 68 -- 327 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 321 (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 (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. Order 68 -- 328 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 322 (5) A copy of an order under paragraph (2) shall be delivered to the Sheriff by the party obtaining the order. (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 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 money recoverable under section 107(1) of the Service and Execution of Process Act 1992 of the Commonwealth as amended and in force for the time being. 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. ORDER 69 WARRANT OF SEIZURE AND SALE 69.01 Definitions In this Order, unless the context or subject-matter otherwise requires— Order 69 -- 329 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 323 "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 him to be sufficient. (2) Subject to paragraph (3), the Sheriff shall take or sell property— (a) in such order as seems to him 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 Order 69 -- 330 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 324 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 him 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 he 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). 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 him best to give publicity to the sale. (2) The Sheriff shall not advertise the sale of any land until the creditor has satisfied him by such means as he may reasonably require that— (a) in the case of land under the operation of the Transfer of Land Act 1958, a copy of the Order 69 -- 331 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 325 warrant has been served on the Registrar of Titles and that a memorandum of that service has been entered in the Register Book; (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 him to be on the land; (c) a statement of the last known address of the debtor; and (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 Book and of the entries in the Register Book 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 69 -- 332 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 326 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. 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 he 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. 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. Order 70 -- 333 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 327 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. ORDER 71 ATTACHMENT OF DEBTS 71.01 Definitions and application (1) In this Order, unless the context or subject-matter otherwise requires— "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; Order 71 -- 334 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 328 "society" means a society within the meaning of the Building Societies Act 1986 and a society registered under Part III of the Co- operation Act 1981. (2) This Order shall not apply to debts being earnings within the meaning of Order 72 due or accruing to the judgment debtor. 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 in a society 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; Order 71 -- 335 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 329 (d) that a receipt for money deposited in the account must be produced before money is withdrawn. (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 in a society 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) The Court shall, in making an order under paragraph (1), 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. Order 71 -- 336 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 330 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 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 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 state— (a)(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 hands of the garnishee to the extent of the amount specified in the summons; Order 71 -- 337 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 331 (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— as the case requires; and (b) 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. Order 71 -- 338 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 332 (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 may on the hearing of a garnishee summons 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. Order 71 -- 339 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 333 (2) Where on the hearing of a garnishee summons the garnishee does not dispute the debt, or where he 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 determine the question of liability or 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 him under, an order made under Rule 71.09 shall be a valid discharge of his liability to the judgment debtor to the extent of the amount paid or levied notwithstanding that subsequently the garnishee proceedings are set aside or the judgment from which they arose is reversed or varied. Order 71 -- 340 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 334 71.13 Money in court (1) Where money is standing to the credit of the judgment debtor in court, the Court may, on the application of the judgment creditor made by summons, 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 The costs of the judgment creditor of a garnishee application under this Order shall, unless the Court otherwise orders, be retained by the judgment creditor out of the money recovered by him 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. 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; Order 72 -- 341 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 335 "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; "emloyer" 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 Order 72 -- 342 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 336 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— (a) any sum deducted from those earnings under Division 2 of Part VI of the Income Tax Assessment Act 1936 of the Commonwealth; and (b) any sum deducted from those earnings that would be an allowable deduction— (i) under section 82H of that Act other than life insurance premiums, not being life insurance premiums payable in respect of superannuation; or (ii) under section 82HA of that Act; "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 the last preceding pay- day or, where there is no last preceding pay- day, the date on which the employer became, or last became, the judgment debtor's employer; "pay-day" means an occasion on which earnings to which the attachment of earnings order relates become payable; Order 72 -- 343 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 337 "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 the last preceding pay- day, or 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 Order 72 -- 344 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 338 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 his 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 him setting forth— Order 72 -- 345 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 339 (i) the name and address of his employer or, if he has more employers than one, of each of his 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 him or on his behalf containing such particulars as are specified in the direction of his 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. (4) For the purpose of this Rule the Court may act upon evidence by or on behalf of the judgment Order 72 -- 346 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 340 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) shall be made by summons in Form 72D and 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 the judgment to which the order relates but not exceeding a rate that appears to the Court to be necessary for the purpose of— Order 72 -- 347 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 341 (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 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. Order 72 -- 348 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 342 (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 him of the effect of the order and of his obligations under this Order; and (b) two forms of notice that the judgment debtor is not in his 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— Order 72 -- 349 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 343 (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 him 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 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 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. Order 72 -- 350 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 344 72.09 Execution after attachment of earnings Unless the Court otherwise orders, where an attachment of earnings order is in force, no warrant of execution shall issue and 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. Order 72 -- 351 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 345 (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 his 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 him. 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. Order 72 -- 352 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 346 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 him 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 him is the employer of the judgment debtor at the time of service of the order but ceases to be his employer at any time thereafter, that person shall, forthwith after he ceases 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 him to the judgment debtor while the application, or any appeal from an order made on the application, is pending. Order 72 -- 353 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 347 (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 him at his usual or last known place of residence or business by registered post. ORDER 73 CHARGING ORDERS AND STOP ORDERS AND NOTICES 73.01 Definitions In this Order, unless the context or subject-matter otherwise requires— "corporation" includes a building society within the meaning of the Building Societies Act 1986 and a society registered under Part III of the Co-operation Act 1981; "funds" or "funds in court" means any money, any stock issued by or any funds of or annuity granted by any government, or any stock of any corporation standing or to be placed to the credit of an account in the books of the Court; Order 73 -- 354 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 348 "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; "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 or under the Corporations Law; 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 (in this Order called "a charging order") impose a charge on the beneficial interest of the judgment debtor in any securities. Order 73 -- 355 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 349 73.03 Filing and service of charging summons (1) The Court may, on the application of a judgment creditor, 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; (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, cause or permit any transfer of any of the securities to be made, or 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 him of his interest Order 73 -- 356 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 350 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. 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 causes or permits any of the securities to which the summons relates to be transferred or 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 his interest in any of the securities to which a charging summons relates made after the service of it on him and before the application for the charging order is heard shall be valid as against the judgment creditor, unless the Court otherwise orders. Order 73 -- 357 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 351 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. (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 Order 73 -- 358 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 352 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. 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 by summons in the proceeding in which the funds are in court, or, 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 Order 73 -- 359 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 353 expenses of the applicant and of any party to the application or other person against whom an order is sought. 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 or under the Corporations Law. (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 his 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 his address for service for the purpose of Rule 73.14 by filing and serving on the corporation notice of the change. Order 73 -- 360 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 354 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 his address for service a notice informing him 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). ORDER 74 ENFORCEMENT BY APPOINTMENT OF RECEIVER Order 73 -- 361 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 355 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 shall have regard to the amount claimed by the judgment creditor, the amount likely to be obtained by the receiver and the probable costs of his appointment and may direct an inquiry on these or any other matters. 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 arrest in Form 75A. Order 74 -- 362 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 356 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 cause him to be informed of the contempt with which he is charged and adopt thereafter such procedure as in the circumstances the Court thinks fit. 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 he 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. Order 75 -- 363 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 357 (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. (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 arrest and detention in custody Order 75 -- 364 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 358 until he is brought before the Court to answer the charge, unless he gives security, as the Court directs, for his 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. (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 give security for his 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 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. Order 75 -- 365 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 359 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. (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 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. Order 75 -- 366 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 360 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 enter upon and take possession of the real and personal estate of the person bound and to collect, receive and get into their hands the rents and profits of his real and personal estate and keep them under sequestration in their hands until the person bound complies with the judgment to be enforced by sequestration or until further order. (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 shall give the same authority and direction to the sequestrators with respect to the real and personal estate of the Order 76 -- 367 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 361 officer as in the case of an order against a corporation and 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 him. (3) The Court may dispense with service under paragraphs (1) and (2). 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; Order 77 -- 368 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 362 (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; County Court Act 1958, section 51 and any of the provisions of Part IV; Evidence Act 1958, Divisions 1, 1A, 1B and 1C of Part I; Guardianship and Administration Board Act 1986, section 66; Instruments Act 1958, section 5; Magistrates' Courts Act 1971, sections 88(1) and (5), 90 and, except as to the power to admit a person to bail, 92; Magistrates' Courts Act 1971, sections 88(1) and (5), 90 and 92, where Part XI of that Act is by another Act applied to an appeal to the Court from the order, decision or determination of a tribunal; Property Law Act 1958, section 84(3) and, where the application is not opposed, the other provisions of section 84; Service and Execution of Process Act 1901 of the Commonwealth, sections 11, 16(1); 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); Order 77 -- 369 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 363 State Trust Corporation of Victoria Act 1987, section 52; State Trustees (State Owned Company) Act 1994, section 11; Subdivision Act 1988, section 38; Supreme Court Act 1986, sections 18, 22, 24, 32, 58, 59, 60, 60A, Division 2 of Part 6 (except section 75), sections 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) and 77.01(b) and (c), the trial of a proceeding shall not be held before a Master and a Master shall not give any judgment or make any order at the trial of a proceeding. Order 77 -- 370 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 364 (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 application for an order under Rule 58.09; (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. (6) A Master shall not have authority to extend or abridge any time fixed by an order of a Judge unless that Judge so directs. Order 77 -- 371 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 365 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 hear and determine the application or 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 him. 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 Order 77 -- 372 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 366 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 him; (b) by special leave of the Judge, rely upon an affidavit or oral evidence not used or given before the Master. (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. Order 77 -- 373 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 367 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. (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. Order 77 -- 374 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 368 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 may, when giving the judgment or at any later time, 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. Order 78 -- 375 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 369 (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 direct a party to— (a)(i) examine the claims of persons claiming to be creditors of the estate and determine, so far as he is able, to which of the claims the estate is liable; and (ii) determine, so far as he is able, what are the other debts or liabilities of the deceased; and (b) file an affidavit stating his conclusions and reasons. (3) Where the judgment in an administration proceeding directs an inquiry for unascertained persons entitled, the Court may direct a party to— (a)(i) examine the claims of persons claiming to be entitled and determine, so far as he is able, which of them are valid; and (ii) determine, so far as he is able, what other persons are entitled; and (b) file an affidavit stating his conclusions and reasons. (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 Order 78 -- 376 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 370 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 his 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 shall, with any necessary modification, 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; (b) on any other debt, from the date of the judgment at the rates payable on judgment debts from that date. Order 78 -- 377 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 371 (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 the debts of a deceased person include funeral, testamentary and administration expenses and, 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. 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 Order 78 -- 378 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 372 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. 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 Order 79 -- 379 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 373 or his solicitor, each signature of a party to be verified by the indorsed certificate of a solicitor. 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 copy of the order and, 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. Order 79 -- 380 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 374 79.05 Certificate of receipt Where money is received by the Senior Master under an order of the Court, he shall as soon as practicable send to the party obtaining the order a certificate of receipt. 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 his 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 Order 79 -- 381 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 375 money for the period of the loss the last rate fixed under section 113(14) of the Act with respect to the common fund known as Common Fund No. 2. (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. (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), he 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 for the benefit of any person, estate or trust to a common fund, unless he 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. Order 79 -- 382 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 376 (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). 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. 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 Order 80 -- 383 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 377 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 he 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; (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, Order 80 -- 384 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 378 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. 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 Order 80 -- 385 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 379 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. (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 Order 80 -- 386 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 380 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. 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 1858 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 by a person nominated for that purpose by the court or tribunal concerned or, if no person is so nominated, by the Victorian Government Solicitor with the consent of the Attorney-General. (2) The application shall be made by originating motion not joining any person as a defendant, and shall be supported by affidavit to which shall be exhibited the letter of request, certificate or other document pursuant to which the application is made, and, if that document is not in the English language, a translation in that language. 81.02 Examiner Order 81 Order 81 -- 387 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 381 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"). 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 his 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. -- 388 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 382 (3) Where the examiner receives an exhibit on the examination, he shall, on the conclusion of the examination, return the exhibit to the person producing it unless that person consents to its retention by him. (4) Where the examiner retains an exhibit under paragraph (3), he 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. __________________ Order 81 -- 389 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 383 FORM 5A RULE 5.02(1) WRIT IN THE SUPREME COURT 19 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 -- 390 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 384 (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 his 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, 19 ] 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 -- 391 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 385 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 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. Form 5B -- 392 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 386 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, 19 ]. 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 [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— Form 5B -- 393 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 387 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 5C RULES 5.02(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, 19 ]. Form 5C -- 394 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 388 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 5D RULE 5.02(2) ORIGINATING MOTION (where no defendant) IN THE SUPREME COURT 19 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, 19 ] 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, 19 ]. Prothonotary The address of the plaintiff is— ___ Form 5D -- 395 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 389 FORM 5E RULES 5.02(2), 53.02(3) ORIGINATING MOTION FOR RECOVERY OF LAND UNDER ORDER 53 IN THE SUPREME COURT 19 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, 19 ] 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 -- 396 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 390 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, 19 ]. 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]. Form 5E Form 5E -- 397 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 391 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. [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 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. Form 7A -- 398 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 392 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, 19 ]. Prothonotary of the Supreme Court of the State of Victoria. ___ FORM 8A RULE 8.05(2) NOTICE OF APPEARANCE [heading as in originating process] FILE an appearance for [full name of defendant] the abovenamed defendant. Dated [e.g. 15 June, 19 ]. [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 8A -- 399 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 393 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, 19 ]. [Signed] [continue as in Form 8A] ___ FORM 10A RULE 10.04(5) HEADING AND NOTICE ON COUNTERCLAIM WHERE DEFENDANT NEW PARTY IN THE SUPREME COURT OF VICTORIA 19 No. AT BETWEEN A.B. Plaintiff and C.D. Defendant (by original proceeding) Form 8B -- 400 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 394 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. 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 Form 10A -- 401 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 395 [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 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, 19 ]. [Signed] [continue as in Form 8A] ___ FORM 11A RULE 11.02 THIRD PARTY NOTICE IN THE SUPREME COURT 19 No. OF VICTORIA AT BETWEEN A.B. Plaintiff and Form 10B -- 402 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 396 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 his 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. 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; Form 11A -- 403 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 397 (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, 19 ]. 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— 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 -- 404 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 398 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, 19 ]. Prothonotary ___ FORM 12A RULE 12.05(1) 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. Form 11B -- 405 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 399 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, 19 ]. Sheriff ___ 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 19 . 2. By a compromise entered into on 19 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]; Form 15A -- 406 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 400 (b) the exhibits to the affidavits including the opinion of of Counsel dated 19 . 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 his 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 19 ]. 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 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 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] Form 15B -- 407 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 401 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] 19 . [name] 19 . 2. By a compromise entered into on 19 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 19 . 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 his 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 19 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. Form 15B -- 408 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 402 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 attaining the age of 18 years. [continue as in Form 15A] ___ 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. 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, 19 ]. [Signed] To the Prothonotary And to ___ FORM 29A RULE 29.02(2) NOTICE FOR DISCOVERY [heading as in originating process] To the [identify party] Form 19A -- 409 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 403 You are required to make discovery of documents within 42 days after service of this notice on you. Dated [e.g. 15 June, 19 ]. [Signed] ___ 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. (a) 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 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. Form 29B -- 410 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 404 [Describe each document in the Schedules as original or copy.] SCHEDULE 1 Part 1 1. 2. 3. Part 2 4. 5. 6. 7. SCHEDULE 2 8. Sworn, etc. ___ FORM 29C RULE 29.10(5) NOTICE TO PRODUCE [heading as in originating process] To the [identify party] TAKE NOTICE that the requires you to produce for his inspection the following documents referred to in your [writ, pleading, particulars, affidavit, etc.] [describe documents required]. Dated [e.g. 15 June, 19 ]. [Signed] ___ Form 29C -- 411 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 405 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, 19 ]. 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, 19 ]. [Signed] ___ 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, 19 ]. 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, 19 ]. [Signed] ___ Form 29D -- 412 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 406 FORM 35A RULE 35.03(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, 19 ]. [Signed] ___ FORM 35B RULE 35.03(4) NOTICE OF DISPUTE [heading as in originating process] To the [identify party] The disputes the following facts specified in the 's notice dated the day of 19 . Form 35A -- 413 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 407 1. [identify each fact] 2. or The disputes the authenticity of the following documents mentioned in the 's notice dated the day of 19 . 1. [identify each document] 2. Dated [e.g. 15 June, 19 ]. [Signed] ___ FORM 39A RULE 39.05(b) DEED OF GUARANTEE [heading as in originating process] THIS guarantee is made the day of 19 , 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 19 , 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 Form 39A -- 414 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 408 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 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 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, Form 41A -- 415 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 409 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 , 19 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. 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 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] Form 41C -- 416 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 410 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 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 Form 41D -- 417 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 411 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 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, 19 ]. ___ 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]; Form 42A -- 418 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 412 *(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, 19 ]. 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 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]; Form 42B -- 419 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 413 (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 he 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.] SCHEDULE [description of documents and things] FILED [e.g. 15 June, 19 ]. 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 Form 42B -- 420 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 414 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 he 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 -- 421 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 415 SCHEDULE [description of documents and things] FILED [e.g. 15 June, 19 ]. 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 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— Form 42D -- 422 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 416 (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 he 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.] 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 to answer concerning the possession or custody of those documents and things. SCHEDULE [description of documents and things] FILED [e.g. 15 June, 19 ]. 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; Form 42D -- 423 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 417 (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 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, 19 ] 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 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, 19 ]. This summons was filed by of , solicitor for the plaintiff. ___ Form 45A -- 424 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 418 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, 19 ] at a.m. [or p.m.] or so soon afterwards as the business of the Court allows. FILED [e.g. 15 June, 19 ]. This summons was filed by of , solicitor for the [identify party]. ___ FORM 48A RULE 48.02 NOTICE OF TRIAL [heading as in originating process] To the [identify party] TAKE NOTICE of trial of this proceeding [or of trial of the question in this proceeding ordered to be tried] [or of the assessment of damages in this proceeding] by a Judge [and jury of six] [or by a Master or as the case may be] for the next sittings at . Dated [e.g. 15 June, 19 ]. [Signed] ___ Form 46A -- 425 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 419 FORM 48B RULE 48.04 CERTIFICATE OF READINESS FOR TRIAL [heading as in originating process] NOTE— (1) Section A of the Plaintiff's Part must be completed by the plaintiff or his solicitor in all cases. Section B of the Plaintiff's Part must also be completed by the plaintiff or his solicitor where the plaintiff's claim is for damages for or arising out of death or bodily injury. Section A of the Defendant's Part must be completed by the defendant or his solicitor in all cases. Section B of the Defendant's Part must also be completed by the defendant or his solicitor where the plaintiff's claim is for damages for or arising out of death or bodily injury. The General Part must be completed by the plaintiff or his solicitor and the defendant or his solicitor in all cases. (2) Each defendant separately represented must complete a Defendant's Part. (3) The party or solicitor preparing a certificate of readiness must sign and date each part relating to that party before presenting the certificate of readiness to any other party or his solicitor for signature. PLAINTIFF'S PART SECTION A I/WE, the undersigned, certify as follows: 1. Pleadings are closed and the plaintiff does not propose to apply before trial for any amendment. 2. All particulars of the defence that have been requested have been served and it is not proposed to seek further particulars of the defence. 3. The defendant has served answers to the plaintiff's interrogatories and it is not proposed to seek further answers. [Either 3 or 4 must be deleted.] 4. The plaintiff does not intend to interrogate. 5. Such inspection as is desired of the documents listed in the defendant's affidavit of documents has been had and it is not proposed to seek further Form 48B -- 426 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 420 discovery or inspection from the defendant. [Either 5 or 6 must be deleted.] 6. The plaintiff does not intend to serve a notice for discovery. Dated [e.g. 15 June, 19 ]. [Signed] SECTION B I/WE, the undersigned, certify as follows: 1. Any offer of settlement made by the defendant whether by offer in writing served on the plaintiff in accordance with Part 2 of Order 26 or otherwise has been discussed with the plaintiff and instructions have been given by the plaintiff not to accept it. 2. Instructions have been obtained from the plaintiff as to whether any offer of settlement should be made and any offer which the plaintiff has authorised has been communicated to the defendant or been made the subject of an offer in writing served on the defendant in accordance with Part 2 or 3 of Order 26. 3. Particulars of special damage (including particulars of loss of earnings, loss of earning capacity, or both) to a date not more than 14 days prior to the date of service of this certificate on the defendant have been served on the defendant. Dated [e.g. 15 June, 19 ]. [Signed] DEFENDANT'S PART SECTION A I/WE, the undersigned, certify as follows: 1. Pleadings are closed and the defendant does not propose to apply before trial for any amendment. 2. All particulars of the statement of claim and reply (if any) that have been requested have been served and it is not proposed to seek further particulars of the statement of claim or reply. 3. The plaintiff has served answers to the defendant's interrogatories and it is not proposed to seek further answers. [Either 3 or 4 must be deleted.] 4. The defendant does not intend to interrogate. 5. Such inspection as is desired of the documents listed in the plaintiff's affidavit of documents has been had and it is not proposed to seek further discovery or inspection from the plaintiff. [Either 5 or 6 must be deleted.] Form 48B -- 427 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 421 6. The defendant does not intend to serve a notice for discovery. 7. Third party proceedings have not been instituted by any of the defendants. [Either 7 or 8 must be deleted.] 8. Third party proceedings have been instituted by the defendant and all interlocutory matters therein completed. Dated [e.g. 20 June, 19 ]. [Signed] SECTION B I/WE, the undersigned, certify as follows: 1. Any offer of settlement made by the plaintiff whether by offer in writing served on the defendant in accordance with Part 2 or 3 of Order 26 or otherwise has been discussed with the defendant and instructions have been given by the defendant not to accept it. 2. Instructions have been obtained from the defendant as to whether any offer of settlement should be made and any offer of settlement which the defendant has authorised has been communicated to the plaintiff or been made the subject of an offer in writing served on the plaintiff in accordance with Part 2 of Order 26. * * * * * Dated [e.g. 20 June, 19 ]. [Signed] GENERAL PART 1. This proceeding is defended by [names of parties defending]. or This proceeding is undefended. 2. The parties to this proceeding are ready to proceed with the trial upon having not less than 14 days' notice. 3. This proceeding is to be set down for trial at [insert place of trial]. Form 48B -- 428 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 422 4. The number of days the trial can reasonably be expected to occupy is in the opinion of— (a) the plaintiff [number of days] (b) the defendant [number of days] (c) the third party [number of days]. 5. The third party confirms the statements in the Defendant's Part, Section A, paragraph 8. Dated , 19 . Solicitor for the Plaintiff Solicitor for the Defendant Solicitor for the Third Party ___ FORM 48C RULE 48.07 INDORSEMENT ON CERTIFICATE OF READINESS FOR TRIAL [heading as in originating process] If this certificate is not completed by you and returned to the within 21 days after it is served on you for completion, this proceeding will be set down for trial without a certificate completed by you and will remain set down unless the Deputy Prothonotary or the Court otherwise directs. To the [identify party] and to his solicitor— ___ Form 48C -- 429 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 423 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 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, 19 ] 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]. Form 53A -- 430 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 424 SCHEDULE [Describe land as in judgment] Issued [e.g. 15 June, 19 ]. 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 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, l9 ] and thereafter submit to the further order of the Court as to his 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, 19 ]. By the Court ___ Form 57A -- 431 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 425 FORM 58A RULE 58.18 IN THE SUPREME COURT OF VICTORIA AT MELBOURNE 199 No. In the matter of section 79 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 79 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 19 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 -- 432 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 426 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, 19 ] 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 him, as the case may be] will be bound by the judgment [or order] to the same extent as you [or he] 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, 19 ]. [Signed] ___ FORM 60A RULE 60.08 GENERAL FORM OF JUDGMENT GIVEN [heading as in originating process] JUDGMENT JUDGE [or MASTER]: [e.g. Mr. Justice or Master ] Form 59A -- 433 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 427 DATE GIVEN: [e.g. 20 June, 19 ] 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, 19 ] [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 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] Form 60B -- 434 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 428 THE JUDGMENT OF THE COURT IS THAT: 1. 2. [terms of judgment] 3. Prothonotary ___ 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 -- 435 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 429 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, 19 ]. ATTENDANCE: OTHER MATTERS: THE JUDGMENT OF THE COURT IS THAT: [e.g.] The defendant by himself his 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 60E RULE 60.08 JUDGMENT AT TRIAL BY JUDGE WITH A JURY [heading as in originating process] JUDGE: DATE GIVEN: ORIGINATING PROCESS: Form 60D -- 436 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 430 HOW OBTAINED: Trial with a jury of six, commenced on , 19 . 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 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:] Form 60F -- 437 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 431 [e.g.] The proceeding be set down for trial at [or as the case may be] DATE AUTHENTICATED: Prothonotary ___ 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: Form 60G -- 438 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 432 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 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] Form 60J -- 439 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 433 DATE AUTHENTICATED: Prothonotary [Note: This form is a combined form of interlocutory and final judgment. The plaintiff may at his 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 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 -- 440 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 434 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 his 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 -- 441 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 435 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, 19 ] 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 , 19 . Signature of Applicant or his Solicitor [Note that where the application is made by a judgment debtor, the judgment debtor must file an affidavit of his financial situation which gives the information required by Form 72C.] ___ Form 61A -- 442 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 436 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, 19 ] for $ and costs. On , 19 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 , 19 , 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 . The usual or last known place of residence or of business or registered office of the [judgment debtor or judgment creditor] is . Form 61B -- 443 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 437 Dated , 19 . Signature of Applicant or his Solicitor [Note that where the application is made by a judgment debtor, the judgment debtor must file an affidavit of his financial situation which gives the information required by Form 72C.] ___ 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, 19 ] for $ and costs. On , 19 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 , 19 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]. Form 61C -- 444 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 438 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]. TAKE NOTICE that the application will be heard before the Judge in the Practice Court, Supreme Court, William Street, Melbourne, on , 19 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 , 19 . Signature of Applicant or his Solicitor [Note that where the application is made by a judgment debtor, the judgment debtor must file an affidavit of his financial situation which gives the information required by Form 72C.] ___ FORM 61D RULE 61.02(5) ORDER RELATING TO PAYMENT OF JUDGMENT DEBT BY INSTALMENTS [Follow Form 60C except as below.] [heading as in originating process] 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, 19 ] by instalments as follows: Form 61D -- 445 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 439 [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 , 19 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, 19 ]: [complete appropriately] or The order made on , 19 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, 19 ] be varied as follows: [complete appropriately] or The order made on , 19 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, 19 ] be cancelled [or be confirmed and the application dismissed]. ___ 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 , 19 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, 19 ] by instalments as follows: [state amount of each instalment, weekly, monthly Form 61E -- 446 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 440 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 , 19 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, 19 ]. Dated , 19 . 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 secretary 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 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 , 19 that [complete appropriately]. or to the refusal on , 19 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 , 19 . Signature of Objector or his Solicitor ___ Form 61F -- 447 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 441 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 , 19 on the application of the [judgment creditor or judgment debtor] that [complete appropriately] [or to the refusal by Master on , 19 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 , 19 at a.m. [or p.m] or so soon afterwards as the business of the Court allows. Dated , 19 . Master ___ 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, 19 ] 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] Form 61G -- 448 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 442 On , 19 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 , 19 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 , 19 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]. TAKE NOTICE that the [judgment creditor or judgment debtor] filed notice of objection to the order of the Master and that on , 19 the Court made an order that the order of the Master be confirmed [or varied as follows: complete appropriately] [or cancelled]. Dated the , 19 . By the Court Prothonotary ___ 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 Form 61J -- 449 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 443 debtor] in the Supreme Court dated [e.g. 20 June, 19 ] 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: 4. The [judgment debtor] acknowledges that he 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 may be required to attend before the Court. Dated the day of 19 . Signed by the judgment creditor: Witness: Signed by the judgment debtor: Witness: ___ Form 61J -- 450 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 444 FORM 61K RULE 61.03(4) ORDER FOR INSTALMENT PAYMENT OF JUDGMENT DEBT AFTER AGREEMENT [Follow Form 81C except as below.] [heading as in originating process] THE COURT ORDERS THAT: In accordance with an agreement dated , 19 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, 19 ], 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 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 , 19 , in accordance with an agreement dated , 19 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 Form 61K -- 451 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 445 [judgment creditor] against the [judgment debtor] dated [e.g. 20 June, 19 ] 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 , 19 . Master ___ 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, 19 ] 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 , 19 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 , 19 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, 19 ]. You are required to produce to the Court on the examination the following documents: [description of documents]. Form 61M -- 452 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 446 The examination will be held 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 , 19 at a.m. [or p.m.] or so soon afterwards as the business of the Court allows. Issued , 19 . 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 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 , 19 to be examined concerning his 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 and to bring him before the [continue as in Form 61M, specifying the time and place as required by section 14(3) or 17(3)]. Issued , 19 . By the Court Prothonotary ___ Form 61N -- 453 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 447 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 , 19 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, 19 ] for $ and costs. or TAKE NOTICE that on , 19 a warrant was issued for the apprehension of the [judgment debtor] for his failure to comply with a summons requiring him to attend before the Court on , 19 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, 19 ] 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 , 19 . Master ___ Form 61P -- 454 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 448 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 , 19 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, 19 ]. TAKE NOTICE that on , 19 , 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 , 19 . By the Court Prothonotary ___ 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 , 19 [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. Form 61Q -- 455 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 449 Dated , 19 . Master ___ 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 , 19 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 , 19 [or herewith]. Filed [e.g. 15 June, 19 ]. 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: Form 63A -- 456 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 450 [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 19 ]. [signed] ___ 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, 19 ] 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 , 19 [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 Form 68A -- 457 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 451 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 , 19 . 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 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, 19 ] 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 , 19 . By the Court Prothonotary Form 68B -- 458 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 452 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 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, 19 ] 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, 19 ] 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]; Form 68C -- 459 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 453 (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]. SCHEDULE [Describe goods as in judgment] Issued , 19 . 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 69A RULE 69.06(3) ADVERTISEMENT OF SALE BY THE SHERIFF On , 19 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 -- 460 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 454 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 , 19 ] [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 , 19 ] 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, 19 ] 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 , 19 . The application will be heard on etc. [continue as in Form 46A]. [insert the following at end of summons] Form 71A -- 461 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 455 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 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 his costs of the garnishee application)] do forthwith pay to the judgment creditor $ , the debt due from him 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 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 under this order in priority to the judgment debt and interest. ___ Form 71B -- 462 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 456 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 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 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 his costs of the garnishee proceedings out of the balance of the debt due [or accruing] from him to the judgment debtor. ___ FORM 72A RULE 72.02(3) ATTACHMENT OF EARNINGS SUMMONS [heading as in originating process] To the [judgment debtor] of [address] Form 71C -- 463 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 457 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, 19 ] 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 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, 19 ] 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 , 19 that the [judgment debtor] [insert terms of order not complied with]. 3. The [judgment debtor] is employed by of as a [occupation]. Form 72B -- 464 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 458 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 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 , 19 [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: Form 72C -- 465 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 459 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 building society deposit, debentures etc.: 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, building society, etc.: Other investments including shares, debentures, bonds: Money owing to you: From , $ From , $ Total: Value of interest in partnership or business: Form 72C -- 466 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 460 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: 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: Form 72C -- 467 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 461 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: (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 -- 468 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 462 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 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, 19 ] 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 Form 72D -- 469 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 463 The [judgment debtor] has persistently failed to comply with an order with respect to the judgment made by the Supreme Court on , 19 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 , 19 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 , 19 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 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 , 19 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, 19 ] 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 , 19 at a.m. to be examined concerning the means and ability of the [judgment debtor] or Form 72F -- 470 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 464 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 , 19 a statement in writing signed by the [judgment debtor] setting forth the following particulars, namely: [complete appropriately]. ___ 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 , 19 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, 19 ] 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 , 19 a statement in writing signed by him or on his behalf containing the following particulars of his indebtedness to the [judgment debtor] that became payable during the period , 19 to , 19 . [complete appropriately]. ___ Form 72G -- 471 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 465 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, 19 ] 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 , 19 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 him 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 , 19 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 -- 472 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 466 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 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]— Form 72J -- 473 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 467 (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. 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. Form 72J -- 474 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 468 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 him in his employment or alters his position to his 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 , 19 . Prothonotary ___ FORM 72K RULE 72.06(3) NOTICE BY EMPLOYER THAT JUDGMENT DEBTOR IS NOT IN HIS EMPLOY [heading as in originating process] To the Prothonotary, And to the [judgment creditor] of [address]. Whereas an order was made on , 19 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 , 19 .] Dated , 19 . [Signature of Employer] ___ Form 72K -- 475 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 469 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 , 19 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 , 19 because [state reason]. Dated , 19 . 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 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 Form 72L -- 476 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 470 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, 19 ] 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 , 19 . 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. 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 73B RULE 73.13(2)(a)(i) AFFIDAVIT AS TO STOCK In the Supreme Court of Victoria 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 Form 73B -- 477 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 471 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 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 -- 478 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 472 FORM 75A RULE 75.02(b) ARREST WARRANT IN SUMMARY PROCEEDINGS FOR CONTEMPT IN FACE OF SUPREME COURT IN THE SUPREME COURT OF VICTORIA TO THE SHERIFF Arrest and bring him before the Court forthwith to answer a charge of contempt, and if it is not practicable to bring him before the Court forthwith, detain him in custody, and when it is practicable to bring him before the Court, do so forthwith. Dated [e.g. 15 June, 19 ]. Judge ___ FORM 75AA RULE 75.08.1 ARREST WARRANT PENDING CONTEMPT HEARING (heading as in originating process) TO THE SHERIFF Arrest and bring him before the Court forthwith to answer a charge of contempt, and if it is not practicable to bring him before the Court forthwith, detain him in custody, and when it is practicable to bring him before the Court, do so forthwith. Dated [e.g. 15 June, 19 ]. Judge ___ Form 75A -- 479 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 473 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 before the Court to answer a charge of contempt, detaining him in custody in the meantime, unless by paying $ into Court [or as the case may be], he gives security for his attendance in person before the Court to answer the charge and to submit to the judgment of the Court. Dated [e.g. 15 June, 19 ]. Judge ___ 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 to the Governor of that prison. or Arrest and take him to the prison at and deliver him to the Governor of that prison. To the Governor of the prison at Receive into your custody and keep him until the further order of this Court [as the case may be]. Form 75B -- 480 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 474 His committal is for contempt of court in that he [state nature of his contempt]. Dated [e.g. 15 June, 19 ]. Judge __________________ Form 75C -- 481 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 475 APPENDIX A SCALE OF COSTS Instructions $ 1. To institute or defend any originating proceeding (including a petition) or appeal, or to make or oppose any motion or application in the Court in its probate jurisdiction or under the Companies (Victoria) Code or the Corporations Law 161.00 2. To make or oppose any interlocutory application not otherwise provided for 38.00 3. For statement of claim whether indorsed on writ or third party notice or served separately, or counterclaim 80.00 4. For any other pleading, particulars in lieu of pleading or amended pleading 38.00 5. For counsel to advise or give an opinion 38.00 6. For counsel to make an interlocutory application where no other brief 38.00 7. For 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 80.00 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 -- 482 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 476 $ Originating Process 10. Writ or originating motion or summons (where filed as originating process) 91.00 11. If any of the above exceed three folios (when not drawn by counsel) for each extra folio 16.00 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 Law 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 Law and the obtaining from the Taxing Master of an order as to costs 1854.00 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 80.00 13. Subpoena 48.00 If a subpoena exceeds three folios, for each extra folio 6.20 These allowances include preparation of document, copy for filing and one copy for service and attendance to file Execution Process 14. Warrant of execution 91.00 This allowance includes preparation of the warrant, copy for filing and one copy for service and attendance to file App. A -- 483 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 477 $ Notices and Memoranda 15. Notice to produce or any other necessary or proper notice or memorandum not otherwise provided for, or any demand 31.00 This allowance does not apply to a short notice or memorandum indorsed on another document, but an allowance may be made therefor as part of the allowance for the document 16. If the notice is special, or necessarily exceeds three folios, for each folio 16.00 The above allowances include preparation of the notice and one copy for filing or service Appearance 17. Preparing and attending filing notice of appearance (including one copy for service) 56.00 Drawing Pleadings And Other Documents 18. (a) Pleadings, including petitions, indorsement constituting statement of claim on writ or third party notice, including particulars 80.00 (b) If exceeding three folios, for each extra folio 16.00 19. Any other necessary document, per folio 16.00 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 3.10 Engrossment and Copies 21. Engrossment of documents, per folio 3.10 App. A -- 484 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 478 $ 22 (a) Copy or photocopy of document, per page 1.20 (b) Reproduction of document from microfiche, microfilm or like process, per page, the actual cost or 1.20 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 1.20 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), 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 25.00 Or per folio 3.50 App. A -- 485 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 479 $ 26. Of all other documents, including deeds, correspondence (including incoming correspondence), exhibits, per folio 2.70 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 38.00 Clerk, per quarter hour 23.00 Service 28. Service of any document where necessary, and not able to be served by post 37.00 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 25.00 (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 App. A -- 486 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 480 $ 30. Service of document on a party by filing or leaving at the office of his solicitor or other address for service, where that mode of service is necessary 23.00 31. Service of document on a party by post or leaving at document exchange 12.00 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 on appeal 49.00 (b) On counsel with any other brief or papers or to appoint consultation or conference (including all attendances to settle counsel's fees) 31.00 33. (a) On consultation or conference with counsel 80.00 (b) Where a consultation or conference occupies more than one half hour, if the Taxing Master thinks it reasonable, for each subsequent half hour 80.00 (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 38.00 each half hour thereafter 38.00 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 80.00 35. (a) At trial or hearing, for each hour 161.00 But, according to circumstances, not to exceed per day of six hours (including luncheon and dinner adjournments) 771.00 App. A -- 487 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 481 $ or, If attended by clerk 384.00 (b) To hear reserved judgment, for each half hour 80.00 (c) By appointment or on short or formal application to a Judge or Master or the Taxing Master, Listing Master or Prothonotary 80.00 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) 771.00 37. To settle judgment or order, per half hour 80.00 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 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 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 771.00 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 23.00 40. If the exercise of skill or legal knowledge is involved so as to require the personal attendance of the solicitor, per quarter hour 38.00 App. A -- 488 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 482 $ Or, if attendance by solicitor's clerk, per quarter hour 23.00 Or such larger amount as the Taxing Master thinks reasonable having regard to the importance or difficulty of the subject matter of attendance 41. Making an appointment or similar attendance by telephone, at the discretion of the Taxing Master 9.90 42. Arranging attendance of a witness or any attendance for which no other provision is made, per quarter hour 23.00 43. Sending or receiving telex, telegram or facsimile documents 23.00 Or such larger amount as is reasonable in the circumstances having regard to the length 44. Letter making an appointment or forwarding document without explanation or the like 11.00 45. Letter, ordinary 20.00 46. Letter, special 28 00 Or such amount as the Taxing Master thinks reasonable 47. Circular letter, after the first 7.80 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 38.00 to 161.00 Or, if special or extensive, in the discretion of the Taxing Master. __________________ App. A -- 489 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 483 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), $101–$203, but in any event not to exceed $1338 in any one day 2. Person other than a professional person who is engaged in business as a principal on his own behalf per half day or part thereof, $123, but not in any event to exceed $205 in any one day 3. Any other witness per day, $56 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 $205 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 100 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. INTERPRETING ALLOWANCES App. B App. B -- 490 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 484 1. Attending professional, scientific or expert witness qualifying to give evidence, attending conference with solicitor or counsel $48, or for each hour, $18.00 but not in any event to exceed $143 in any one day 2. Attending court for absence from place of residence or business for four hours or less, $96, and for each hour or part thereof in excess of four hours, $18.00, but not in any event to exceed $143 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 100 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.". Dated: 29 February 1996 J. H. PHILLIPS, C.J. P. D. CUMMINS, J. ROBERT BROOKING, J.A. ALLAN W. McDONALD, J. R. C. TADGELL, J.A. T. H. SMITH, J. W. F. ORMISTON, J.A. DAVID ASHLEY, J. JOHN D. PHILLIPS, J.A. JOHN J. HEDIGAN, J. K. M. HAYNE, J.A. J. A. COLDREY, J. F. H. CALLAWAY, J.A. DAVID BYRNE, J. BARRY BEACH, J. G. M. EAMES, J. G. HAMPEL, J. J. M. BATT, J. F. H. R. VINCENT, J. PHILIP MANDIE, J. BERNARD G. TEAGUE, J. ═══════════════ NOTES Notes -- 491 of 492 -- S.R. No. 19/1996 General Rules of Procedure in Civil Proceedings 1996 485 NOTES—continued 1 S.R. No. 99/1986 as amended by S.R. Nos 286/1986, 327/1986, 72/1987, 166/1987, 286/1987, 334/1987, 57/1988, 181/1988, 437/1988, 108/1989, 273/1989, 300/1989, 131/1990, 132/1990, 153/1990, 248/1990, 275/1990, 355/1990, 68/1991, 105/1991, 155/1991, 180/1991, 240/1991, 97/1992, 211/1992, 294/1992, 295/1992, 52/1993, 71/1993, 85/1993, 142/1993, 63/1994, 171/1994, 196/1994, 71/1995, 113/1995, 129/1995, 155/1995 and 167/1995. -- 492 of 492 --