Australian Capital Territory Numbered Regulations Australian Capital Territory Numbered RegulationsSCHEDULE 3 Rule 11
CONSEQUENTIAL AND FORMAL AMENDMENTS
Omit the heading, substitute the following heading:
Repeal the Division, substitute the following rule:
“1. (1) A person may proceed in Court by solicitor or in person, subject to this rule.
“(2) A person under a disability shall proceed by a solicitor.
“(3) A corporation shall proceed in the Court by a solicitor unless the Court grants leave for an officer of the corporation to represent the corporation.
“(4) A relator shall proceed by a solicitor.
“(5) A solicitor shall act for a relator only if the relator has given the solicitor written authority to act in the proceedings, and the authority is filed in the Court.”.
Omit the heading.
(a) Omit “the provisions of”.
(b) Omit “accordingly—”, substitute “accordingly”.
Omit “subrule (3)”, substitute “paragraph (2) (a)”.
Repeal the rule, substitute the following rule:
“7. Rule 6 of Order 2 applies in relation to an address for service referred to in this Order.”.
Repeal the Order.
Repeal the rules, substitute the following rules:
“1. Where the solicitor for a defendant endorses on the originating application a statement that the solicitor—
(a) accepts service of the application on behalf of the defendant; and
(b) undertakes to enter an appearance to the action;
the application is to be taken to be duly served on the defendant at the time of the endorsement.
“2. Where an appearance to an action has been entered for a defendant, the originating application is to be taken to have been duly served on the defendant on the day of the appearance, without any proof of service of the application.
“2A. An originating application shall be served personally unless otherwise prescribed by a law of the Territory.”.
Repeal the rules, substitute the following rules:
“4. Service on an infant defendant may be effected by service—
(a) on a parent or guardian of the infant;
(b) if an infant has neither parent nor guardian—on a person who is responsible for the care of the infant, or with whom the infant resides; or
(c) if the Court so orders—on the infant;
unless the Court orders otherwise.
“5. Service on a defendant under a disability, other than an infant, may be effected by service—
(a) on a person who is responsible for the care of the defendant; or
(b) on a person with whom the defendant resides;
unless the Court orders otherwise.”.
(a) Omit “a writ of summons”, substitute “an originating application”.
(b) Omit “writ” (last occurring), substitute “application”.
Repeal the rule, substitute the following rule:
“8. If a plaintiff sues in person, and no person is able to be found at the address for service specified by the plaintiff in the originating application, any process in the action may be served on the plaintiff by leaving a copy at that address.”.
Omit all the words from and including “Service” to and including “whenever,” substitute “On application under rule 4, the Court may allow service of an originating application outside the Commonwealth if”.
Omit “any writ of summons in any such action”, substitute “an originating application in such an action”.
Omit the subrules, substitute the following subrules:
“(2) Service of an originating application in accordance with paragraph (1) (b) is to be taken to be good and effective service wherever the relevant parties are resident.
“(3) Where paragraph (1) (a) applies in relation to an action, in the absence of an agreement about service under paragraph (1) (b), on application under rule 4 the Court may allow service of an originating application in that action out of the Commonwealth.”.
Omit “Every application for leave to serve a writ of summons, or notice thereof, out of the Commonwealth,”, substitute “An application for leave to serve an originating application out of the Commonwealth”.
Add at the end “and”.
Omit the paragraph.
Repeal the rule.
(a) Omit “Any order giving leave to serve a writ of summons, or notice thereof,”, substitute “An order for the service of an originating application”.
(b) Omit “or notice” (last occurring).
(c) Omit “writ is to be served or the notice given”, substitute “application is to be served”.
Repeal the rules, substitute the following rule:
“9. This Order applies, with necessary changes, to the service outside the Commonwealth of any originating process of the Court other than an originating application.”.
(a) Before “Where” insert “ (1) ”.
(b) Omit “any writ of summons, originating summons, notice or other document”, substitute “a document”.
(c) Omit “the following procedure”, substitute “the procedure set out in this rule”.
(d) Omit “adopted—”, substitute “adopted.”.
Omit “ (1) ”, substitute “ (2) ”.
(a) Omit “ (2) ”, substitute “ (3) ”.
(b) After “Attorney-General” insert “of the Commonwealth”.
Omit “ (3) ”, substitute “ (4) ”.
Omit “ (4) ”, substitute “ (5) ”.
(a) Before “Where” insert “ (1) ”.
(b) Omit “the following procedures”, substitute “the procedure set out in this rule”.
(c) Omit “adopted:”, substitute “adopted.”.
(a) Omit “(a)”, substitute “ (2) ”.
(b) Omit “process;”, substitute “process.”.
(a) Omit “(b)”, substitute “ (3) ”.
(b) Omit “thereof;”, substitute “thereof.”.
(a) Omit “(c)”, substitute “ (4) ”.
(b) After “Attorney-General” insert “of the Commonwealth”.
(c) Omit “paragraph (b)”, substitute “subrule (3)”.
After “Attorney-General” insert “of the Commonwealth”.
Repeal the rule, substitute the following rule:
“1. A defendant in an action shall not take any step in the action, except under rule 17, before entering an appearance.”.
Omit the subrule, substitute the following subrules:
“(1) The defendant in an action shall enter an appearance by giving the Registrar a memorandum in duplicate in accordance with Form 9 in the First Schedule, dated on the day on which it is given, and stating—
(a) whether the defendant is represented by a solicitor;
(b) if the defendant is represented by a solicitor—the name of the solicitor;
(c) in accordance with rule 4—an address for the service of documents related to the proceedings in the action; and
(d) if any particulars of the defendant stated in the originating application are incorrect—the correct particulars.
“(1A) The Registrar shall seal the duplicate of the memorandum with a seal bearing the words ‘Appearance Entered' and the date of the appearance, and return the duplicate to the person entering the appearance.
“(1B) The sealed duplicate of the memorandum is evidence that the appearance was entered on the day indicated by the seal.”.
Repeal the rule, substitute the following rule:
“3. A defendant shall, on the day of entering an appearance, serve the sealed duplicate of the memorandum of appearance on the plaintiff at the plaintiff's address for service.”.
Repeal the rules, substitute the following rule:
“4. (1) If a solicitor appears for a defendant, the address for service included in the memorandum of appearance shall be—
(a) if the place of business of the defendant's solicitor is within the Territory—the address of that place; or
(b) in any other case—the address of a place within the Territory.
“(2) If a defendant appears in person, the address for service included in the memorandum of appearance shall be—
(a) if the defendant's residence or place of business is within the Territory—the address of that residence or place; or
(b) in any other case—the address of a place within the Territory.
“(3) A memorandum of appearance may include in the address for service—
(a) the number of an Australian Document Exchange Pty Ltd exchange box in the Territory; or
(b) a facsimile machine number.
“(4) The Registrar may refuse to file a memorandum of appearance if the address for service included in the memorandum is manifestly inconvenient for the plaintiff or for the Court, notwithstanding whether the address is otherwise in accordance with this rule.”.
Omit “such address” (first occurring), substitute “an address for service in accordance with rule 4”.
Repeal the rule.
Omit “the one”, substitute “a single”.
Repeal the rules, substitute the following rules:
“11. (1) A defendant may appear at any time before final judgment.
“(2) If a defendant enters an appearance after the time specified for appearance in the originating application, the defendant is not entitled to any additional time for delivering a defence, or for any other purpose, unless the Court otherwise orders.
“12. (1) On the filing of an affidavit under subrule (2), the Court may grant leave, in an action for the recovery of land, for a person in possession of the land to enter an appearance and defend, although the person is not named as a defendant in the plaintiff's originating application.
“(2) For the purposes of subrule (1), an affidavit by the person seeking to appear in the action shall be filed stating the capacity in which the person is in possession of the land.
“(3) Where a Court grants leave under subrule (1) to a person to appear in an action—
(a) the person is required to enter an appearance under this Order, and to give notice accordingly to the plaintiff, as if the person had been named as a defendant in the action; and
(b) in all subsequent proceedings in the action, the person is to be taken to be a defendant to the action.
“13. In an action for the recovery of land, the Court may strike out or confine an appearance or defence by a person who is not in possession of the land in his or her own right or by a tenant.
“14. Where a person appearing to defend an action for the recovery of land does so in the capacity of landlord, the memorandum of appearance shall include a statement to that effect.
“15. (1) A person appearing to defend an action for the recovery of land may limit the defence to part only of the property specified in the originating application, in accordance with this rule.
“(2) In the memorandum of appearance, the defendant shall describe with reasonable certainty the part of the property to which the defence is limited.
“(3) Unless a defence to an action for the recovery of land is limited in accordance with this rule, the defendant's appearance is to be taken to be an appearance to defend for the whole of the land.”.
Omit “process” (first occurring), substitute “application”.
Omit “process”, substitute “application”.
Omit “the application is by a defendant on whom the originating process”, substitute “an application for an order under subrule (1) is made by a defendant on whom the originating application”.
Omit “process”, substitute “application”.
Omit “Application”, substitute “An application for an order under subrule (1)”.
After “application”, insert “for an order under subrule (1)”.
Repeal the rules, substitute the following rules:
“1. In this Order, a reference to a failure to enter an appearance to an originating application is to be taken to be a reference to a failure to enter such an appearance within the time specified in the application.
“2. Before taking out proceedings under this Order upon default of appearance, the plaintiff shall file an affidavit of service of the originating application.
“3. (1) This rule applies where no appearance is entered to an originating application for a defendant who is under a disability.
“(2) Where this rule applies, the plaintiff shall not proceed with the action unless the Court assigns a guardian by whom the defendant may appear and defend the action.
“(3) On the application of the plaintiff, the Court may appoint a guardian for a defendant if—
(a) the originating application was served under rule 4 or 5 (as the case requires) of Order 10; and
(b) after the time has expired for the entry of an appearance to the originating application, notice of the application for the appointment of a guardian has been served under rule 4 or 5 (as the case requires) of Order 10 at least 6 days before the date set down for hearing the application for the appointment of a guardian.
“(4) The
Court may dispense with the requirement under
paragraph (3) (b) at the time of
hearing an application for the appointment of a guardian for a defendant.
“4. (1) Where an originating application includes a claim for debt or a liquidated demand, the plaintiff may enter final judgment in respect of that claim against any defendant not appearing to the application.
“(2) Final judgment under subrule (1) may be entered for—
(a) any sum not exceeding the amount specified in the application;
(b) interest—
(i) at the rate specified in the application to the date of judgment; or
(ii) if no interest is specified in the application—interest to the date of judgment, or a lump sum in lieu of such interest, determined by the Court; and
(c) costs.
“(3) In determining interest or a lump sum for the purposes of paragraph (2) (b), the Court may have regard to Practice Directions issued by the Court relating to interest up to judgment.
“(4) Where this rule applies, the plaintiff may proceed with the action in respect of a claim for debt or a liquidated demand against any defendant appearing to the application.
“5. (1) Where an originating application includes a claim for pecuniary damages or for the detention of goods, or both, the plaintiff may enter interlocutory judgment for damages, or for the value of the goods to be assessed, in respect of that claim against any defendant not appearing to the application.
“(2) Where this rule applies, the plaintiff may proceed with the action in respect of a claim for pecuniary damages or for the detention of goods against any defendant appearing to the application.”.
Omit “this or any other Order”, substitute “these Rules”.
(a) Omit “within the time limited for appearance”.
(b) Omit “writ”, substitute “originating application”.
Repeal the rule, substitute the following rule:
“9. In an action for the recovery of land, where the originating application includes a claim for mesne profits, arrears of rent, double value, damages for breach of contract or wrong or injury to premises, the plaintiff may enter judgment in accordance with rule 8, and sign interlocutory judgment in respect of that claim.”.
Repeal the rule, substitute the following rule:
“11. Unless otherwise provided for by this Order, if a defendant does not appear to an originating application, the action may proceed as if the defendant had appeared, subject to Order 18.”.
Repeal the rules.
Omit the heading, substitute the following heading:
Insert the following rule:
“1A. This Order applies where—
(a) an originating application is accompanied by a statement of claim; and
(b) the defendant enters an appearance to the application.”.
Omit the subrules, substitute the following subrules:
“(1) Where this Order applies, the plaintiff may apply to the Court for leave to enter judgment whether or not a defence has been delivered.
“(2) An application under subrule (1) shall be accompanied by—
(a) the originating application; and
(b) an affidavit or affidavits which—
(i) verify the cause of action;
(ii) in the case of a claim for debt or a liquidated demand—verify the amount claimed; and
(iii) state that in the belief of the deponent there is no defence to the action except (if relevant) as to the amount of damages claimed.
“(3) A deponent to an affidavit referred to in paragraph (2) (b) who includes in it an item of hearsay evidence shall—
(a) adduce evidence of the source of the information; and
(b) state that the deponent believes the information.
“(3A) On an application under this rule, the Court may make such order for the entry of judgment as it considers just having regard to the nature of the remedy or relief claimed, unless the Court is satisfied that—
(a) there is a good defence to the action on the merits;
(b) sufficient facts are disclosed to entitle the defendant to defend the action generally; or
(c) subrule (3B) applies.
“(3B) On an application under this rule, if the Court
considers that
a statement of claim in relation to a particular claim should
not (by virtue of subrule 10 (2) of Order 2) have been attached to the
originating application, the Court may—
(a) amend the originating application to strike out that claim; and
(b) allow the action to proceed in respect of the remainder of the originating application, subject to these Rules.”.
Omit “Judge”, substitute “Court”.
Omit the subrule, substitute the following subrule:
“(1) The defendant may show
cause against an application under
rule 1—
(a) by affidavit;
(b) if the statement of claim relates only to a claim for a debt or liquidated damages—by offering to pay into Court the total amount claimed; or
(c) with leave of the Court—by the examination on oath of the defendant or any other person.”.
Omit “The Judge may, if he or she thinks fit,”, substitute “For the purpose of hearing an application under rule 1, the Court may”.
Omit “Judge”, substitute “Court”.
Omit “Judge”, substitute “Court”.
Omit “the provisions of this rule shall apply”, substitute “this rule applies”.
Repeal the rule.
Repeal the rule, substitute the following rules:
“1A. This Order applies where—
(a) an originating application includes a claim for specific performance of a written contract for the sale or purchase of property (or any estate or interest in property); and
(b) the defendant enters an appearance to the application.
“1. (1) Where this Order applies, the plaintiff may apply to the Court for an order for specific performance of the contract and for any necessary consequential orders.
“(2) An application under subrule (1) shall be accompanied by—
(a) the originating application; and
(b) an affidavit or affidavits which—
(i) verify the cause of action; and
(ii) state that in the belief of the deponent there is no defence to the action except (if relevant) as to the amount of damages claimed.
“(3) A deponent to an affidavit referred to in paragraph (2) (b) who includes in it an item of hearsay evidence shall—
(a) adduce evidence of the source of the information; and
(b) state that the deponent believes the information.
“(4) On an application under this rule, the Court may make such order for the entry of judgment as it considers just, unless the Court is satisfied that—
(a) there is a good defence to the action on the merits; or
(b) sufficient facts are disclosed to entitle the defendant to defend the action generally.”.
Omit the subrule, substitute the following subrule:
“(1) The defendant may show cause against an application under
rule 1—
(a) by affidavit; or
(b) with leave of the Court—by the examination on oath of the defendant or any other person.”.
Omit “The Judge may, if he or she thinks fit,”, substitute “For the purpose of hearing an application under rule 1, the Court may”.
Omit “Judge”, substitute “Court”.
Repeal the rule.
Repeal the rule, substitute the following rule:
“1. (1) Within 10 days after entering an appearance to an originating application, or at any later time by leave of the Court, a defendant may apply to the Court for summary judgment.
“(2) On an application under this rule, the Court may make an order under subrule (3) if satisfied that—
(a) the action is frivolous or vexatious;
(b) there is a good defence to the action on the merits; or
(c) the action should be finally
disposed of summarily, or
without pleadings.
“(3) On an application under this rule, the Court may—
(a) order that judgment be entered for the defendant with or without costs;
(b) order that the plaintiff shall proceed to trial without pleadings; or
(c) if all parties consent—make an order disposing of the action finally, without appeal, in a summary manner.”.
Omit “The Judge may, if he or she thinks fit,”, substitute “For the purpose of hearing an application under rule 1, the Court may”.
Omit “Judge” (wherever occurring), substitute “Court”.
Repeal the rules, substitute the following rule:
“1. The Court shall make an order for proper accounts, with all necessary inquiries and directions, if—
(a) an originating application specifies that an account is to be taken; or
(b) the defendant—
(i) fails to appear; or
(ii) at a directions hearing or otherwise, fails to satisfy the Court that there is any preliminary question to be tried.”.
(a) Omit “a writ of summons, or notice,”, substitute “an originating application”.
(b) Omit “writ or notice”, substitute “application”.
Omit all the words from and including “, and sue out” to and including “thereof,”, substitute “the originating application and serve the new defendant with the application”.
Omit “a writ of summons in an action”, substitute “an originating application”.
Omit all the words after “copy” (first occurring), substitute “of the originating application and of any pleadings”.
Omit “a writ”, substitute “an originating application”.
Omit “Order 3, rule 6 as if the third party claim were a writ”, substitute “ rule 7 of Order 2 as if the claim were an originating application”.
Omit “a writ of summons”, substitute “an originating application”.
Repeal the rule.
Omit “indorsement of the writ”, substitute “originating application”.
Repeal the rule.
Repeal the rule, substitute the following rule:
“6. (1) Where a defendant has entered an appearance to an originating application including a claim for debt or a liquidated demand, the defence to that claim or demand shall be delivered—
(a) within 14 days after the time limited for appearance in the application; or
(b) within such extended time as the Court allows.
“(2) No defence need be delivered if the plaintiff applies for entry of judgment under Order 15.”.
Omit “a writ of summons”, substitute “an originating application”.
Repeal the rules, substitute the following rule:
“2. (1) Where an originating application contains only a claim for debt or a liquidated demand, and a defendant fails to deliver a defence within the time required under these rules, the plaintiff may enter final judgment against the defendant.
“(2) Final judgment under subrule (1) may be entered for—
(a) any sum not exceeding the amount specified in the application;
(b) interest—
(i) at the rate specified in the application to the date of judgment; or
(ii) if no interest is specified in the application—interest to the date of judgment, or a lump sum in lieu of such interest, determined by the Court; and
(c) costs.
“(3) In determining interest or a lump sum for the purposes of paragraph (2) (b), the Court may have regard to Practice Directions issued by the Court relating to interest up to judgment.
“(4) Where this rule applies in relation to a defendant to an application, the plaintiff may proceed with the action in respect of a claim for debt or a liquidated demand against any other defendant appearing to the application.”.
Omit “writ of summons”, substitute “originating application”.
(a) Omit “the plaintiff has endorsed”, substitute “an originating application for the recovery of land includes”.
(b) Omit “upon a writ for the recovery of land”.
Omit “writ”, substitute “originating application”.
Omit the subrule.
Omit “issue of originating process”, substitute “commencement of proceedings”.
Omit all the words from and including “commenced” to and including “matter,”.
Omit “writ”, substitute “originating application (or any accompanying statement)”.
Omit “writ”, substitute “originating application (or any accompanying statement)”.
Omit “writ”, substitute “originating application (or any accompanying statement)”.
Omit “writ issued”, substitute “the action is commenced”.
Omit “a writ is sued out”, substitute “an originating application is made”.
Omit “writs”, substitute “originating applications”.
Omit “writ of summons”, substitute “originating application”.
Omit “a writ is issued against a firm, and is served as provided by”, substitute “an originating application is served against a firm under”.
Omit “a writ”, substitute “an originating application”.
Omit “writ of summons”, substitute “originating application”.
Omit all the words after “jurisdiction” (first occurring), substitute “when the action commenced, and has not entered an appearance to the action, unless the member—
(a) is made a party to the action under the law relating to the service of originating applications out of the jurisdiction; or
(b) is served with the originating application within the jurisdiction after the action commenced.”.
Omit “issue of the writ of summons”, substitute “commencement of the action”.
Omit “writ of summons”, substitute “originating application”.
Omit “a writ”, substitute “any document”.
Omit “a writ of summons”, substitute “an originating application”.
Omit “a writ of summons”, substitute “an originating application”.
Repeal the Order.
Omit the heading, substitute the following heading:
Omit “summons”, substitute “application”.
Repeal the rule, substitute the following rule:
“3. The Court may order an originating application in an action under this Order to be served on such persons as it thinks fit.”.
Before “application” insert “originating”.
Repeal the rule.
Omit “summons” (wherever occurring), substitute “application”.
Omit “summons” (first occurring), substitute “originating application”.
Omit “summons” (first occurring), substitute “originating application”.
Omit “summons”, substitute “application”.
Omit “summons”, substitute “originating application”.
Omit “summons” (wherever occurring), substitute “application”.
(a) Omit “summons” (first occurring), substitute “originating application”.
(b) Omit “summons” (last occurring), substitute “application”.
Omit “the summons”, substitute “an originating application under rule 4”.
Omit “The application”, substitute “An application under rule 4”.
Omit “such summons”, substitute “an application under rule 4”.
Omit “, whether on summons or otherwise,”.
Omit “The issue of a summons”, substitute “The making of an application”.
Omit “writ of summons”, substitute “originating application”.
(a) Omit “Order 4, rule 1”, substitute “Order 2, rules 24 and 25”.
(b) Omit “Orders 8, 9,”, substitute “Orders 8,”.
Omit “Order 6”.
Repeal the rule.
Omit
“Order 4, subrule 6 (4)”, substitute “Order 3,
subrule 3
(2)”.
Omit “indorsement on a writ of summons”, substitute “originating application”.
Omit “a writ of summons”, substitute “an originating application”.
Omit “the provisions of these Rules relating to the service of a writ of summons”, substitute “law relating to the service of originating applications”.
Omit the paragraph, substitute:
“(b) have annexed to it the following documents:
(i) a copy of the originating application by which the proceedings were instituted, together with any accompanying statement;
(ii) an affidavit of service of the application on the defendant, or a copy of the memorandum of appearance of the defendant;
(iii) copies of any pleadings;
(iv) a statement of the grounds on which the judgment was based;”.
Omit the subparagraph, substitute the following subparagraph:
“(i) a copy of the originating application by which the proceedings were instituted, together with any accompanying statement;”.
(a) Omit “writ of summons, or originating summons,”, substitute “originating application”.
(b) Omit “appeared to the writ or summons,”, substitute “entered an appearance,”.
After rule 3 of Order 75B, insert the following rule:
“3A. The Rules apply in relation to an application for the commencement of proceedings under this Order as if the application were an originating application, except as otherwise provided by this Order.”.
Omit “Order 2A, rule 8”, substitute “Order 2, rule 21”.
Omit “appointed under section 7 of”, substitute “under”.
Add at the end the following subrule:
“(4) The Rules apply in relation to an application for an adoption order as if the application were an originating application, except as otherwise provided by this Division.”.
Omit the rule, substitute the following rule:
“2. (1) The Rules apply in relation to an application as if the application were an originating application, except as otherwise provided by the Act and this Order.
“(2) The Rules apply in relation to a reference to the Court under Division 4 of Part XVI of the Act as if a statement under section 276 of the Act setting out a question referred by the Assembly were an originating application, except as otherwise provided by the Act and this Order.”.
Omit “originating summons”, substitute “application”.
Omit “WRIT IN FOREIGN COUNTRY”, substitute “ORIGINATING APPLICATION OUTSIDE THE COMMONWEALTH”.
Omit the words “ a writ of summons [ or as the case may be, describing the document ] ”, substitute “ an originating application ”.
Omit “ Writ issued ”, substitute “ Originating application filed ”.
(a) Omit “ [ plaintiff or defendant ] ”, substitute “ [plaintiff or defendant] ”.
(b) Omit “ [ statement of claim , or defence, or affidavit, dated the day of 19 ] ”, substitute “ [originating application or statement attached to the originating application or statement of claim or affidavit, dated the day of 19 ] ”.
Omit the forms.