“ ORDER 12

        (a)     the plaintiff's solicitor;

        (b)     if the plaintiff is a person under a disability—the person's guardian or next friend;

        (c)     if the plaintiff is a corporation—a member or officer of the corporation with knowledge of the facts so far as they are known to the corporation;

        (d)     if the plaintiff is a corporation for which a receiver or a receiver and manager has been appointed—the receiver or the receiver and manager;

        (e)     if the plaintiff is a corporation for which a liquidator, provisional liquidator or administrator has been appointed—the liquidator, provisional liquidator or administrator;

        (f)     if the plaintiff is a body of persons that can sue and be sued in its own name or in the name of an officer or someone else—a member or officer of the body with knowledge of the facts so far as they are known to the body;

        (g)     if the plaintiff is the Commonwealth, a State or a Territory—an officer or employee of the Commonwealth, State or Territory with knowledge of the facts so far as they are known to the Commonwealth, State or Territory;

        (h)     in any other case—an officer or employee of the plaintiff having knowledge of the facts so far as they are known to the plaintiff.”.

Order 14, rule 7A—

    Omit the rule.

Order 14, rule 8—

    Omit “a judgment”, substitute “final judgment”.

Order 14, rule 9—

    Omit all the words after “may enter”, substitute “final judgment against any defendant not appearing to the application for the possession of the land and interlocutory judgment for the claim”.

Order 14, new rules 9A and 9B—

    After rule 9 insert the following rules:

“9A     Trial of action after entry of interlocutory judgment

    Unless the court otherwise orders, after entry of an interlocutory judgment against a defendant in an action, the plaintiff may proceed to trial on 1 or more of any claims for damages only, another form of pecuniary relief only or the value of goods only, or on 2 or more of these issues, as the case may be.

“9B     Form of interlocutory or final judgment

    An interlocutory or final judgment must be in accordance with form 10A of Schedule 1.”.

Order 17, subrule 2 (1)—

    Omit “ viva voce ”, substitute “oral”.

Order 19, rule 17—

    Omit the rule, substitute the following rule:

“17     Persons with a mental disability

    A person with a mental disability may—

        (a)     sue as plaintiff in an action by his or her guardian, manager or next friend; and

        (b)     defend an action by his or her guardian, manager or a litigation guardian appointed for the purpose.”.

Order 19, subrule 21 (2)—

    Omit the subrule, substitute the following subrule:

“(2)     Any consent as between a person with a mental disability and any person acting on his or her behalf is effective only if the consent is sanctioned by the court.”.

Order 19, rule 41—

    ( a)     Omit “ cestuis que trustent ”, substitute “beneficiaries”.

    ( b)     Omit “ cestui que trust ”, substitute “beneficiary”.

Order 19, rule 43—

    Omit “ cestui que trust ”, substitute “beneficiary”.

Order 20, rule 3—

    Omit “ Order 10 (except rule 7) and Order 11”, substitute “Order 2, rules 18A to 18D (inclusive) and Order 10”.

Order 21, rules 6 and 7—

    Repeal the rules, substitute the following rules:

“6     Discharge or variation of order

    A person who is served with an order under rule 4 may apply to the court for the discharge or variation of the order—

        (a)     if the person is under a disability and has no guardian ad litem —within 12 days after the appointment of a guardian ad litem ; or

        (b)     in any other case—within 12 days after service of the order on the person.

“7     Enforcement of order—person under disability

    If an order under rule 4 is served on a person who is under a disability and has no guardian ad litem , the order does not have effect while the person may apply to the court under rule 6 for the discharge or variation of the order.”.

Order 23, rule 13—

    Omit “infant, lunatic, or person of unsound mind not so found by inquisition”, substitute “infant or a person with a mental disability”.

Order 31, rule 7—

    After “may enter”, insert “final”.

Order 31, rule 8—

    Omit all the words after “may enter”, substitute “final judgment against any defendant not appearing to the application for the possession of the land and interlocutory judgment for the claim, and proceed with the action against the others”.

Order 31, new rules 9A and 9B—

    After rule 9 insert the following rules:

“9A     Application for final judgment—debt or liquidated amount

“(1)     A plaintiff applying to enter final judgment for a debt or liquidated demand under rule 2, 6 or 9 must file with the registrar—

        (a)     an affidavit in accordance with form 10 of Schedule 1 that is sworn, not earlier than 14 days before it is filed by—

              (i)     the plaintiff or, if there are 2 or more plaintiffs, any plaintiff; or

              (ii)     a qualified person; and

        (b)     a draft judgment in accordance with form 10A of Schedule 1.

“(2)     The plaintiff's solicitor may make an affidavit under this rule only if the source of the knowledge of the facts deposed is—

        (a)     the plaintiff; or

        (b)     if there are 2 or more plaintiffs—any plaintiff; or

        (c)     another qualified person.

“(3)     In this rule—

        (a)     the plaintiff's solicitor;

        (b)     if the plaintiff is a person under a disability—the person's guardian or next friend;

        (c)     if the plaintiff is a corporation—a member or officer of the corporation with knowledge of the facts so far as they are known to the corporation;

        (d)     if the plaintiff is a corporation for which a receiver or a receiver and manager has been appointed—the receiver or the receiver and manager;

        (e)     if the plaintiff is a corporation for which a liquidator, provisional liquidator or administrator has been appointed—the liquidator, provisional liquidator or administrator;

        (f)     if the plaintiff is a body of persons that can sue and be sued in its own name or in the name of an officer or someone else—a member or officer of the body with knowledge of the facts so far as they are known to the body;

        (g)     if the plaintiff is the Commonwealth, a State or a Territory—an officer or employee of the Commonwealth, State or Territory with knowledge of the facts so far as they are known to the Commonwealth, State or Territory;

        (h)     in any other case—an officer or employee of the plaintiff having knowledge of the facts so far as they are known to the plaintiff.

“9B     Trial of action after entry of interlocutory judgment

    Unless the court otherwise orders, after entry of an interlocutory judgment against a defendant in an action, the plaintiff may proceed to trial on 1 or more of any claims for damages only, another form of pecuniary relief only or the value of goods only, or on 2 or more of these issues, as the case may be.”.

Order 31, new rule 13A—

    After rule 13 insert the following rule:

“13A     Form of interlocutory or final judgment

    An interlocutory or final judgment must be in accordance with form 10A of Schedule 1.”.

Order 34, rule 12—

    Omit “ viva voce ”, substitute “oral”.

Order 36, rule 2—

    Omit “examined viva voce ”, substitute “orally examined”.

Order 38, rule 13—

    Omit “coverture,”.

Order 39, rule 1—

    Omit “examined viva voce ”, substitute “orally examined”.

Order 40, rule 24, proviso—

    Omit “ viva voce ”, substitute “orally”.

Order 42, paragraph 2 (6) (a)—

    Omit the paragraph, substitute the following paragraph:

    “(a)     for a draft or minute for—

              (i)     an interlocutory or final judgment mentioned in Order 14 (Default of appearance) or Order 31 (Default of pleading)—be in accordance with form 10A of Schedule 1; or

              (ii)     any other judgment—be in accordance with form 50AA in Schedule 1.”.

Order 42, paragraph 2 (6) (b)—

    Omit “in the case of”, substitute “for”.

Order 46, subrule 1 (2)—

    Omit “or his or her solicitor,”.

Order 46, subrule 1 (3)—

    Omit the subrule.

Order 50, rules 3 and 4—

    Repeal the rules.

Order 50, rule 6—

    Omit “ rule 3 upon”, substitute “Order 2, rule 18D on”.

Order 50, rule 7—

    Omit “ rule 3”, substitute “Order 2, rule 18D”.

Order 55, rule 10—

    Omit “Clerk”, substitute “registrar”.

Order 55, rule 32—

    Omit all the words after “direct”, substitute “the judicial tribunal to which the writ of prohibition was issued to hear or determine the matter in question or proceed as if the writ had not been issued”.

Order 55, rule 45—

    Omit “as provided for by Order 11”.

Order 58, rule 1—

    Omit “ cestui que trust ” (wherever occurring), substitute “beneficiary”.

Order 58, paragraph 3A (g)—

    Omit “ cestuis que trustent ”, substitute “beneficiaries”.

Order 61, paragraph 3 (a)—

    Omit “Orders 8, 10, 12, 13, and 14”, substitute “Orders 8, 10 (other than rule 12), 12, 13 and 14”.

Order 65, subrule 58 (3)—

    Omit “in accordance with Order 67 rule 2”.

Heading to Order 69A—

    Omit “ UNDER PART XIX ”, substitute “ TO TRANSFER PROCEEDINGS UNDER PART 20 ”.

Order 72, rule 1—
    Omit “the Third Schedule” (wherever occurring), substitute “Schedule 3”.
Order 72, rule 51B—
    Omit “the Third Schedule”, substitute “Schedule 3”.
Order 75B, subrule 2 (1)—

    Omit the definitions of “body corporate”, “company”, “contributory”, “corporation”, “officer” and “official liquidator”.

Order 75B, subrules 37 (9) and (10)—
    Omit “Order 2A, rule 8”, substitute “Order 2, rule 21”.
Order 75B, rule 41—
    Add at the end the following subrule:

“(3)     The substituted applicant must serve the respondent personally with the order.”.

Order 76, subrule 1 (3)—
    Omit “the Eighth Schedule”, substitute “Schedule 8”.
Order 76, rule 25—

    Repeal the rule, substitute the following rule:

“25     Service of notice of applications

“(1)     A notice of an application for an order under the Act must be served personally.

“(2)     However, a notice may be served on—

        (a)     the director by giving the notice to a member of the staff of the director's office; and

        (b)     the principal officer of a private adoption agency by giving the notice to a member of the staff of the agency.

“(3)     An affidavit of service must be in accordance with form 20.”.

Order 80, rule 2—
    Omit “the Eleventh Schedule” (wherever occurring), substitute “Schedule 11”.
Order 80, rule 14—

    Repeal the rule.

Order 81, subrule 2 (1)—

    (a)     Insert after item 2 in the table:

“2A     Discrimination Tribunal

Discrimination Act 1991 section 108D”;

    (b)     Insert after item 6 in the table:

“6A     Residential Tenancies Tribunal

Residential Tenancies Act 1997 section 126”; and

    (c)     Omit item 7, substitute:

“7     Small Claims Court

Magistrates Court (Civil Jurisdiction) Act 1982 Part 21”.

Order 81, subrule 8 (2)—

    Omit “the Second Schedule”, substitute “Schedule 2”.

Order 81A, rule 6—
    Omit “the Second Schedule”, substitute “Schedule 2”.
Order 82, subrule 3 (3)—

    Insert “personally” before “served”.

Heading to the Schedules—

    Omit the heading:

“ THE SCHEDULES ”.

Heading to First Schedule—

    Omit the heading, substitute the following heading:

“ SCHEDULE 1 ”.

First Schedule, form 2—

    (a)     Insert after “ Service of documents— ³ ”, on a new line, “ If represented by a solicitor, the following information may be provided : ”.

    (b)     Insert after “ Australian Document Exchange Box No.:* ”, on a new line, “ Postal address (if different from above): * ”.

    (c)     Omit “ Facsimile machine ”, substitute “ Fax ”.

    (d)     Omit from note 3 “Order 2, rule 6”, substitute “ Order 1, subrule 4 (1), definition of address for service and Order 2, paragraph 4 (4) (e) and subrule 4 (4A) ”.

First Schedule, form 8—

    Omit “ THE COMMONWEALTH ”, substitute “ AUSTRALIA ”.

First Schedule, form 9—

    (a)     Insert after “ Service of documents— ”, on a new line, “ If represented by a solicitor, the following information may be provided: ”.

    (b)     Insert after “ Australian Document Exchange Box No.:* ”, on a new line, “ Postal address (if different from above) :* ”.

    (c)     Omit “ Facsimile machine ”, substitute “ Fax ”.

    (d)     Relocate the reference to note 4 from after “Address for service:” to after “Service of documents—”.

    (e)     Omit from note 4 “ Order 13, rule 4 ”, substitute “ Order 1, subrule 4 (1), definition of address for service and Order 13, paragraph 2 (1) (c) and subrule 2 (1AA) ”.

First Schedule, new forms 10 and 10A—

    After form 9 insert the following forms:

    FORM 10     O 14 r 4, O 15, r 1 and O 31 r 10A

AFFIDAVIT IN SUPPORT OF APPLICATION FOR DEFAULT JUDGMENT FOR DEBT

[ Heading as in Form 1 ]

On ( date ) I, ( name ) of ( address ), ( occupation ), say on oath:

1     [ Set out the facts entitling you to make this affidavit. ]

=     [ Set out the source of your knowledge of the facts deposed. ]

=     I believe that the defendant is indebted to me/the plaintiff* for the cause of action set out in the originating application (dated) for $ , plus costs and interest accruing from the date of this affidavit to the date of judgment*, made up as follows:

Amount claimed in originating application:     $ Less payments made or credit accrued:     $* [ If applicable: insert date and amount of any payments or credits made since the beginning of the proceeding that reduces the amount for which judgment is sought. ] Total of claim : $ [ If applicable: explain any discrepancy between this amount and the amount claimed in the statement accompanying the originating application claiming for a debt or liquidated demand (form 3) ] Plus interest of : $* [ If applicable: insert the amount on which interest is calculated, the rate of interest and the period for which the rate is applicable. Repeat for each change in the amount or rate of interest. ] TOTAL AMOUNT CLAIMED: $ (excluding costs and interest accruing from the date of this affidavit to the date of judgment.)

=     No payment has been made, and no credit has accrued, since the beginning of the proceeding that reduces the amount for which judgment is sought.*

=     I am/the plaintiff* is entitled to claim interest on the total amount claimed mentioned above at the rate of $ per day until the date of judgment.*

    [ If applicable: the interest is to be calculated in accordance with O 14, r 4 (3) or O 31, r 2(3). ]

=     I am/the plaintiff* is entitled to judgment for costs of $ made up as follows:

[ Insert particulars of how costs are made up. ]

Sworn by the deponent—

Signature:

Witness:     [ Signature, name and title of person before whom         affidavit is sworn or affirmed ]

*     Strike out where inapplicable.         = Number as appropriate.

    FORM 10A     O 14 r 9B and O 31 r 13A

DEFAULT JUDGMENT

[ Heading as in Form 1 ]

DATE OF JUDGMENT:

ORIGINATING APPLICATION:     [ Insert date. ]

HOW OBTAINED:             In default of appearance/defence.*

AFFIDAVITS READ:         Affidavit of service/nondelivery of defence* sworn by                                                 ( name ) of ( address ) on ( date ).

OTHER MATTERS:         Appearance entered on ( date ).*

THE JUDGMENT OF THE COURT IS THAT:

=     The plaintiff recover against the defendant $ .*

=     The plaintiff recover possession of the property described in the originating application/statement of claim* and known as block ( number ), section ( number ) of ( suburb ) contained in Certificate of Title Volume ( number ), Folio ( number ) (and known as ( street address )).*

=     The plaintiff recover against the defendant damages to be assessed.*

=     The plaintiff recover against the defendant costs of $ /costs as taxed.*

DATE ENTERED:     ( Date to be inserted by court. )

REGISTRAR                

*     Strike out where inapplicable.         = Number as appropriate.

First Schedule, form 19A—

        (a)     Omit “ of the Australian Capital Territory his or her successors and assigns for the sum of $     of lawful money of Australia to be paid to the Registrar, his or her successors and assigns, ”, substitute “ for $     ([Insert amount in figures]) to be paid to the Registrar ”.

    (b)     Omit all the words after “ CONDITIONS ”, substitute the following:

“ This obligation remains in effect unless:

(a)     the defendant fails to pay into court the amount accepted by the plaintiff within 14 days after the acceptance;

(b)     the Supreme Court orders otherwise; or

(c)     all parties to the action consent to the discharge of the bond by a notice signed by or on behalf of the parties that is filed in the Office of the Registrar. ”.

First Schedule, form 19B—

    Omit “ the First Schedule ”, substitute “ Schedule 1 ”.

Heading to Third Schedule—

    Omit the heading, substitute the following heading:

“ SCHEDULE 3 ”.

Schedule 4, item 34, column 2—

    Omit “Facsimile copy”, substitute “Fax copy”.

Heading to Eighth Schedule—

    Omit the heading, substitute the following heading:

“ SCHEDULE 8 ”.

Eighth Schedule, forms 1 to 3 (inclusive), 6 to 8 (inclusive) and 10 to 18 (inclusive)—

    Omit “[ Address of a place not more than 10 kilometres from the office of the Registrar ]”.

Heading to Eleventh Schedule—

    Omit the heading, substitute the following heading:

“ SCHEDULE 11 ”.

Schedule 12, form 93—

    Omit “Order 2A, rule 8”, substitute “Order 2, rule 21 ”.

Schedule 12, form 93C—

    Insert “ and Investments” after “Securities” (wherever occurring).

Schedule 12, form 127—

    Insert “ and Investments” after “Securities” (wherever occurring).

Schedule 12, form 128—

    (a)     Insert “and Investments” after “Securities”.

    (b)     Omit “ASC office”, substitute “Commission's office”.

Schedule 13A, subrules 36 (5), (7) and (8) and 37 (5), (7) and (8)—

    Omit “Order 2A, rule 8”, substitute “Order 2, rule 21 ”.

Further amendments

    The following provisions are amended by omitting “the First Schedule” (wherever occurring) and substituting “Schedule 1”:

Order 1, rule 5

Order 2, subrule 11 (1) and rules 12 and 13

Order 12, subrule 10 (2)

Order 19, rules 18 and 48

Order 23, rule 5

Order 25, rule 12

Order 26, subrules 1 (3) and (4), 2 (1) and 4 (2)

Order 28, subrule 3 (1)

Order 34, paragraph 11 (a), rules 14 and 18 and subrule 19 (5)

Order 34B, rule 3

Order 35, subrule 2 (1), paragraphs 3 (1) (a) and (2) (a) and subrule 8 (1)

Order 36, rule 9

Order 37A, rule 1

Order 38, rule 24

Order 39, rules 12 and 24B, subparagraph 24C (1) (b) (ii), rule 24J, paragraph 24P (a) and subrules 31 (4), 50 (2), 51 (2), 52 (2) and 53 (2)

Order 42, subrule 14 (3)

Order 43, rules 10 and 12 and subrule 31 (2)

Order 47, rule 5

Order 49, rule 2

Order 52, paragraph 19 (3) (b)

Order 55, rules 14, 17 and 33

Order 59, rule 16

Order 61, paragraph 5 (1) (ba)

Order 61A, paragraph 5 (c)

Order 82, subrule 3 (1)

Endnotes

Rules amended

1     Republished as in force on 1 February 1999.

Notification

2     Notified in the Gazette on 27 October 1999.

Changes to rule headings

3     The following changes to rule headings are made on the commencement of rule 2 of these rules:

Rule	Change
Order 1, rule 5	Omit from the heading First Schedule and substitute Schedule 1 .
Order 19, rule 41	Omit the heading, substitute the following heading: Beneficiaries .
Order 25, rule 22	Omit the heading, substitute the following heading: Existence of record .
Order 34A, rule 5	Omit the heading, substitute the following heading: Discovery to identify right to obtain relief .
Order 55, rule 32	Omit the heading, substitute the following heading: Direction to proceed .

© Australian Capital Territory 2003