Australian Capital Territory Numbered Regulations Australian Capital Territory Numbered RegulationsThese rules amend the Supreme Court Rules .
Note Schedule 1 also contains amendments to the Supreme Court Rules .
3 Interpretation
Order 1 rule 4 is amended by inserting in subrule (1) the following definitions:
“"defend", for Division 19.2—see order 19 rule 16.
"person with a legal disability "means—
(a) a child; or
(b) a person with a mental disability.
"sue", for Division 19.2—see order 19 rule 16.”.
4 Right of proceeding in court
Order 8 subrule 1 (2) is omitted and the following subrule substituted:
“ (2) A person with a legal disability may only proceed by a solicitor.”.
5 Substitution
Order 10 rule 8 is repealed and the following rule substituted:
“ 8 Service on defendants with a mental disability
“ (1) This rule applies to a defendant in a proceeding who is a person with a mental disability and an adult.
“ (2) Unless the court otherwise orders, a document in the proceeding (including a document for which personal service is necessary) may be served on the defendant by serving it on—
(a) a person responsible for the defendant's care; or
(b) a person with whom the defendant lives.
“ (3) A document may be served on the defendant only if the court so orders, whether before or after the document is served on the person.”.
6 Substitution
Order 14 rule 3 is repealed and the following rule substituted:
“ 3 Default by defendant with a legal disability
“ (1) This rule applies if no appearance is entered to an originating application for a defendant with a legal disability.
“ (2) The plaintiff may proceed with the application only if the court assigns a litigation guardian by whom the defendant may appear and defend the action.
“ (3) On application by the plaintiff (the guardianship application ), the court may appoint a litigation guardian for a defendant if—
(a) the originating application was served under order 10 rule 7 or 8; and
(b) notice of the guardianship application has been served under order 10 rule 7 or 8—
(i) after the time for the entry of an appearance to the originating application has ended; and
(ii) at least 6 days before the hearing date for the guardianship application.
“ (4) The court may dispense with the requirement under paragraph (3) (b) at the hearing of the guardianship application.”.
7 Claims for debt and liquidated demands—final judgment
Order 14 subrule 4 (6) is amended by omitting paragraph (b) of the definition of qualified person and substituting the following paragraph:
“(b) if the plaintiff is a person with a legal disability—the person's litigation guardian;”.
8 Substitution
Order 19 rule 12 is repealed and the following rule substituted:
“ 12 Amendment on misjoinder or nonjoinder of parties
“ (1) A cause or matter is not defeated because of the misjoinder or nonjoinder of parties, and the court may in every cause or matter deal with the matter in controversy in relation to the rights and interests of the parties before it.
“ (2) The court may order—
(a) that a person who is a party be struck out if the person has been improperly joined; or
(b) that a person be added as a party if—
(i) the person ought to have been joined; or
(ii) the addition of the person as a party is necessary to allow the court effectively and completely to decide all the questions involved in the cause or matter.
“ (3) An order may be made under subrule (2)—
(a) at any stage of the proceeding; and
(b) on the application of a party or on its own initiative; and
(c) on the terms the court considers just; and
(d) whether the person to be struck out or added is, or should be, a plaintiff or defendant.
“ (4) However, a person may not be added as a plaintiff suing without a litigation guardian, or as a litigation guardian of a plaintiff who is a person with a legal disability, without his or her written consent.”.
3 Substitution
Order 19 rules 14 and 15 are repealed and the following rules substituted:
“ 14 Change of parties—amendment of application and service etc
“ (1) Unless the court otherwise orders, if a person is added or substituted as defendant, the plaintiff must—
(a) file an amended copy of the originating application; and
(b) serve the person with a sealed copy of the amended originating application in the same way as an original defendant is served.
“ (2) Unless the court otherwise orders, if the person is added as defendant, the proceeding against the person is taken to have begun only when the order adding the person is made.
“ 15 Probate actions
In a probate action—
(a) a person who is named as defendant by the originating process, or on whom notice of the action is served by the court's direction, may enter an appearance in the action; and
(b) a person not named as a defendant may apply to the court for leave to intervene in the action; and
(c) application for leave to intervene in the action must be made by motion supported by an affidavit showing the interest of the applicant in the deceased person's estate; and
(d) a person with leave to intervene is not entitled to be heard in the action until the person enters an appearance; and
(e) a person with leave to intervene becomes a defendant on filing an appearance and the proceeding continues as if—
(i) the person had been named as a defendant by the originating process; and
(ii) the person had been served with the originating process when the process was issued; and
(f) if the court gives leave to intervene, it may give the directions it considers appropriate for filing and service of pleadings, the filing of an affidavit of testamentary scripts or other matters.”.
4 Substitution
Order 19 Division 2 is repealed and the following Division substituted:
“ Division 19.2—People with legal disability
“ 16 Meaning of sue and defend
In this Division, to sue and to defend include to be a party to a cause or matter.
“ 17 Children
A child may sue as plaintiff in any action, and defend any action, by his or her litigation guardian.
“ 18 People with a mental disability
A person with a mental disability may sue as plaintiff in any action, and defend any action, by his or her litigation guardian.
“ 19 Appearance of people with a legal disability
A person with a legal disability may only enter an appearance by his or her litigation guardian.
“ 20 Appointment of litigation guardian
“ (1) A litigation guardian may be appointed without an order of the court for the appointment.
“ (2) However, a solicitor applying to enter an appearance as a litigation guardian must make and file an affidavit in accordance with form 11 in Schedule 1.
“ 21 Written authority of litigation guardian or relator
“ (1) A person's name may be used in an action as litigation guardian of a person with a legal disability, or as relator, only if the person has signed a written authority to the solicitor for the person's name to be used that way.
“ (2) An authority must be filed by the solicitor.
“ 22 Consent on behalf of person with a legal disability
“ (1) This rule applies to a consent about the taking of evidence or any other procedure that is given in a cause or matter by the litigation guardian of a party who is a person with a legal disability.
“ (2) If the consent is given with the court's approval, the consent has effect as if—
(a) it had been given by the party; and
(b) the party were not a person with a legal disability.”.
11 Substitution
Order 19 rule 49 is repealed and the following rule substituted:
“ 49 Service of notice on person with a legal disability
Notice of a judgment or order must be served on a person with a legal disability in the same way as an originating application may be served on a defendant under order 10 rules 7 and 8.”.
12 Substitution
Order 21 is repealed and the following order substituted:
“ ORDER 21
CHANGE OF PARTIES BY DEVOLUTION OR TRANSFER
“ 1 Effect of death or bankruptcy
If a party to a proceeding dies or becomes bankrupt but the cause of action survives, the proceeding is not suspended or ended by the death or bankruptcy.
“ 2 Change of party—new party
“ (1) This rule applies if, at any stage during a proceeding, the interest or liability of a party (the initial party ) is transferred to, or devolves on, someone else (the new party ).
“ (2) The court may order that the new party be substituted for the initial party if the substitution of the new party is necessary to allow the court effectively and completely to decide all the questions involved in the proceeding.
“ (3) An application for an order under this rule may be made in the absence of any other party.
“ (4) Unless the court otherwise orders, a sealed copy of an order made under this rule must be served on each party, including the new party and the initial party.
“ (5) However, if the order is made on application, a sealed copy of the order need not be served on the applicant.
“ (6) The court may give directions to give effect to subrule (4), including directions about who is to serve the documents required to be served on a party under the subrule.
“ (7) Unless the court otherwise orders, if the new party is a defendant, the plaintiff must—
(a) file an amended copy of the originating application; and
(b) serve the new party with a sealed copy of the amended originating application in the same way as an original defendant is served.
“ (8) Unless the court otherwise orders, if the new party is a defendant, the proceeding against the new party is taken to have begun only when the order adding the new party is made.
“ 3 Change of party—new side or capacity
“ (1) The court may make an order under rule 2 for someone (the new party ) to be made a party even if the person is already a party.
“ (2) If the new party is already a party on the other side of the proceeding, the court must, in the order, direct that the new party cease to be a party on the other side.
“ (3) If the new party is already a party on the same side of the proceeding but in a different capacity, the court may, in the order, direct that the person cease to be a party in the different capacity.
“ 4 Variation or discharge of order for new party etc
“ (1) A person made a party under rule 2 may apply to have the order varied or discharged within 14 days after—
(a) if the person is a person with a legal disability who does not have a litigation guardian—the appointment of a litigation guardian; or
(b) in any other case—service of a sealed copy of the order on the person.
“ (2) If a copy of an order under rule 2 is served on a person with a legal disability who does not have a litigation guardian, the order does not have effect in relation to the person while the person may apply to the court under subrule (1) for variation or discharge of the order.
“ 5 Notation of order in cause book
If an order is made under rule 2, the registrar must ensure that the order is noted in the cause book.
“ 6 Death and no continuation
“ (1) This rule applies if a party to a proceeding dies but the cause of action survives.
“ (2) If the party is the plaintiff and the person entitled to proceed delays prosecution of the proceeding without due cause, the defendant may apply for an order that the plaintiff's proceeding be dismissed, and the defendant have judgment on any counterclaim, unless the person proceeds within a stated time.
“ (3) If the party is the defendant and the person entitled to proceed delays prosecution of the proceeding without due cause, the plaintiff may apply for an order that the plaintiff have judgment on the plaintiff's claim, and any counterclaim be dismissed, unless the person proceeds within a stated time.”.
13 Substitution
Order 23 rule 13 is repealed and the following rule substituted:
“ 13 Allegations not denied are admitted except against person with a legal disability
An allegation of fact in a pleading, other than a petition or summons, is taken to be admitted unless—
(a) it is denied specifically or by necessary implication in the pleading of the opposite party; or
(b) it is stated to be not admitted in the pleading of the opposite party; or
(c) the opposite party is a person with a legal disability.”.
6 Substitution
Order 26 rules 8 and 9 are repealed and the following rules substituted:
“ 8 Approval of settlement of action by person with a legal disability
“ (1) In an action in which there is a claim for an amount (including an amount of damages) by or on behalf of a person with a legal disability, a settlement or compromise may not be entered into, and an amount paid into court may not be accepted, without the court's approval.
“ (2) This rule applies whether the person is suing alone or with another party.
“ 9 Amount recovered by person with legal disability to be paid into court
An amount (including an amount of damages) recovered, awarded or agreed to be paid in an action in relation to the claim of a person with a legal disability must be paid into court.
“ 10 Court orders about recovered etc amounts
“ (1) The court may make an order directing how an amount recovered, awarded or agreed to be paid in an action in relation to the claim of a person with a legal disability (the claimant ) must be dealt with.
“ (2) Without limiting subrule (1), the court may, by order, direct—
(a) the payment of all or a part of the amount to—
(i) the claimant or his or her litigation guardian for—
(A) expenses incurred by or paid for, or on behalf of, the claimant; or
(B) the maintenance or benefit of the claimant; or
(ii) the claimant's solicitor in relation to costs; or
(b) the investment of all or a part of the amount on behalf of the claimant in the way stated in the order; or
(c) the investment of all or a part of the interest received from an investment under this rule on behalf of the claimant in the way stated in the order; or
(d) the changing of an investment made on behalf of the claimant under this rule; or
(e) the sale of securities in which an amount is invested on behalf of the claimant under this rule at the time, and on the conditions, stated in the order; or
(f) the payment of all or a part of the amount, or the transfer of a security or investment under this rule (including an account with an authorised deposit-taking institution), on behalf of the claimant.
“ (3) In this rule:
"amount" includes an amount of damages.”.
15 Application for final judgment—debt or liquidated amount
Order 31 subrule 9A (3) is amended by omitting paragraph (b) of the definition of qualified person and substituting the following paragraph:
“(b) if the plaintiff is a person with a legal disability—the plaintiff's litigation guardian;”.
16 Privileged documents
Order 34 rule 1A is repealed.
17 Substitution
Order 34 rule 23 is repealed and the following rule substituted:
“ 23 Failure to comply with order
“ (1) If a party (the failing party ) fails to comply with an order to answer interrogatories, or for discovery or inspection of documents, the party interrogating may apply to the court for an order under this rule.
“ (2) The court may, by order, do the following under this rule in relation to the failing party:
(a) find the party (or, for a party with a legal disability, the party's litigation guardian) to be in contempt of court and deal with the party accordingly;
(b) if the party is a plaintiff—dismiss the party's action;
(c) if the party is a defendant—strike out the party's defence (if any), and place the party in the same position as if the party had not defended.”.
18 Repeal
Order 34 rule 28 is repealed.
19 Substitution
Order 37 rule 5 is repealed and the following rule substituted:
“ 5 Person with a legal disability
“ (1) If a person with a legal disability is a party to a special case in a cause or matter, the special case must not be set down for argument without the court's leave.
“ (2) The application for leave must be supported by sufficient evidence that the statements contained in the special case are true, as far as they affect the interests of the person with a legal disability.”.
20 Substitution
Order 38 rule 18 is repealed and the following rule substituted:
“ 18 Order of evidence and addresses
“ (1) The court may give directions about the order of evidence and addresses and the conduct of the trial generally.
“ (2) Subject to any contrary direction—
(a) if the plaintiff has the burden of proof on any question—the plaintiff presents his or her case first; and
(b) if the defendant has the burden of proof on every question—the defendant presents his or her case first.
“ (3) Subject to any contrary direction—
(a) if the only parties in a trial are a single plaintiff and a single defendant and there is no counterclaim—the order of evidence and address is to be in accordance with subrules (4) to (8); and
(b) in any other case—the order of evidence and addresses is to be in accordance with those subrules as far as is practicable.
“ (4) The party who presents his or her case first (the first party ) may make an address opening the party's case and may then bring evidence in support of the case.
“ (5) If, during the presentation of the first party's case, no document or thing is admitted in evidence or by tender by the other party, then, after the first party has brought evidence in support of his or her case, the other party must decide whether or not to present evidence.
“ (6) If the other party elects not to present evidence, the first party may make a closing address and the other party may then make a closing address.
“ (7) If the other party elects to present evidence—
(a) the other party may first make an opening address and, after presenting any evidence in support of it, may make a closing address; and
(b) after the party has made a closing address, the first party may make a closing address.
“ (8) If, during the presentation of the first party's case, a document or thing is admitted in evidence or by tender by the other party and, after that case is brought—
(a) the other party presents evidence—
(i) the other party may first make an opening address and, after presenting any evidence in support of it, may make a closing address; and
(ii) after the party has made a closing address, the first party may make a closing address; or
(b) the other party does not present evidence—the other party may make a closing address and the first party may then make a closing address.”.
21 Substitution
Order 52 Division 3 is repealed and the following Division substituted:
“ Division 52.3—Accounts
“ 25 Accounts of liquidators, guardians etc
This order applies to the accounts of a liquidator, or of a guardian, manager or litigation guardian of a person with a legal disability, in the same way (but subject to any necessary modifications) as it applies to the accounts of a receiver.”.
22 Applications for relief without administration
Order 58 rule 1 is amended by omitting “returnable in Chambers” and substituting “and a notice of motion”.
23 Accounts, merchants etc
Order 58 rule 13 is amended by omitting “The Judge in Chambers” and substituting “A judge in a proceeding to which this order applies”.
24 Substitution
Order 58 Division 3 is repealed and the following Division substituted:
“ Division 58.3—Proceedings relating to people with a legal disability
“ 14 Evidence on application to appoint guardian etc
On application for the appointment of a guardian of a child and allowance for maintenance, the evidence must show—
(a) the age of the child; and
(b) the nature and amount of the child's assets and income; and
(c) what relatives the child has.
“ 15 Appointment of litigation guardian may be required
At any time during a proceeding, a judge may require a litigation guardian to be appointed for a person with a legal disability.”.
25 Substitution
Order 65 rule 9 is repealed and the following rule substituted:
“ 9 Solicitor appointed litigation guardian
“ (1) If the court appoints a solicitor as litigation guardian of a person with a legal disability, the court may direct that the costs incurred exercising the functions of litigation guardian must be paid either—
(a) by the parties, or 1 or more of the parties, to the cause or matter in which the appointment is made; or
(b) out of a fund in court (if any) in which the person is interested.
“ (2) The court may give directions for the repayment or allowance of costs mentioned in subrule (1).”.
26 Substitution
Order 72 Division 3 is repealed and the following Division substituted:
“ Division 72.3—Administration during minority
“ 20 Grants of administration during minority
“ (1) A grant of administration during minority may be made to the guardian of a child.
“ (2) A grant is subject to the limitations or conditions the court orders.
“ 21 Election and assignment of guardians
“ (1) A child 7 years or older may elect a guardian.
“ (2) The court may assign a guardian for a child when a guardian has not been, or may not be, elected.
“ (3) In a family with a child 7 years or older and a child under 7 years old, an elected guardian may act for all the children without special assignment.
“ (4) If the guardian of a child makes an application for administration, the guardian must produce evidence of his or her election or assignment.”.
27 Application as to time and mode of sale etc of real estate
Order 72 subrule 36 (1) is amended by omitting “in case 1 party is an infant or is of unsound mind, and no guardian or committee of his or her person or estate has been appointed” and substituting “if a party is a person with a legal disability and does not have a litigation guardian”.
28 Commencement of proceedings
Order 83 rule 3 is amended by omitting “summons” and substituting “application”.
29 Insertion
After order 83 rule 6 the following rules are inserted:
“ 6A Payment into and out of court
“ (1) A party to an arbitration agreement (the respondent ) may at any time pay into court an amount in satisfaction of a claim to which the agreement applies.
“ (2) However, if a defence setting up tender before the commencement of the arbitration is claimed in the arbitration, the amount claimed to have been tendered must be paid into the court.
“ (3) The respondent may, without leave, make additional payments increasing any amount paid in.
“ (4) The respondent must give notice of the payment to the other parties to the arbitration agreement in accordance with form 83 in Schedule 1 and must state in the notice—
(a) the claim the amount is intended to satisfy; and
(b) whether liability is admitted or denied.
“ (5) Each party receiving notice of payment must, within 3 days after receiving it, give a written acknowledgment of its receipt to the party who gave the notice.
“ 6B Acceptance of amount paid into court
“ (1) This rule applies if an amount is paid into court under rule 6A by a party to an arbitration agreement (the respondent ) in satisfaction of a claim of another party to the agreement (the claimant ).
“ (2) However, this rule does not apply if a defence setting up tender before the commencement of the arbitration is claimed in the arbitration.
“ (3) Within 14 days after receiving notice of payment or, if more than 1 payment has been made, within 14 days after receiving notice of the last payment, the claimant may accept the amount in satisfaction of the claim by giving the respondent and the registrar notice in accordance with form 84 in Schedule 1.
“ (4) If the parties consent, or the registrar is satisfied by affidavit that the amount paid into court has been accepted under subrule (2), the amount must be paid to the claimant or, on the claimant's written authority, to his or her solicitor, and all further proceedings on the claimant's claim are stayed.
“ (5) If the claimant accepts the amount paid into court, the claimant may file a bill of costs for taxation unless the arbitrator or umpire otherwise directs.
“ (6) The bill of costs may be filed not earlier than 4 days after payment of the amount out of court.
“ (7) The bill of costs may cover—
(a) the claimant's costs up to the date of payment of the amount into court; and
(b) the claimant's reasonable costs in accepting the amount.
“ (8) The claimant may sign judgment for the taxed costs.
“ (9) Judgment may be signed not earlier than 48 hours after taxation.
“ (10) If the respondent had made a counterclaim and the notice of payment into court stated that in making the payment the respondent had taken into account and intended to dispose of the counterclaim, all further proceedings on the counterclaim against the claimant are stayed if the claimant accepts the payment.
“ 6C Amount remaining in court
If an amount paid into court in relation to an arbitration agreement is not accepted under rule 6B, the amount may only be paid out—
(a) with the agreement of the parties to the agreement; or
(b) in accordance with a certificate of the arbitrator or umpire or an order of the court.
“ 6D Nondisclosure of amount paid into court
No statement of the fact that an amount has been paid into court under rule 6A may be included in a pleading in the arbitration, and no communication of that fact may be made to the arbitrator or umpire on the hearing of the arbitration, until all questions of liability and amount of debt or damages have been decided.”.
30 Insertion
After order 83 Division 1 insert the following Division:
“ Division 83.2—Subpoenas issued under the Arbitration Act
Note The court has wide powers to issue subpoenas under the Arbitration Act, s 17. This Division applies to those subpoenas (see the definition of subpoena in rule 11A).
“ 11A Definitions for div 83.2
In this Division:
"arbitrator", in relation to a subpoena, means the arbitrator for the arbitration in relation to which the subpoena was issued.
"proceeding", except in Division 83.2, means an arbitration proceeding.
"subpoena" means a subpoena issued under the Arbitration Act.
"umpire", in relation to a subpoena, means the umpire for the arbitration in relation to which the subpoena was issued.
“ 11B Issue—forms 85 to 88
“ (1) Unless the court otherwise orders, the registrar may issue a subpoena at the request of a party to a proceeding.
“ (2) A subpoena is to be issued under seal.
“ (3) A party requesting the issue of a subpoena must file a copy of the subpoena, but need not file a praecipe for subpoena.
“ (4) Subpoenas are to be in the forms numbered 85 to 88 in Schedule 1.
“ 11C Return date for subpoena for production
Unless the court otherwise orders, a subpoena for production must not require a person to produce a document earlier than 14 days after the service of the subpoena.
“ 11D Conduct money
“ (1) If a party serves a subpoena requiring the person named to attend or to produce a document or thing, or both, the party must, at the time of service, tender to the person—
(a) an amount sufficient to allow the person to comply with the subpoena; and
(b) a written undertaking to compensate the person for any expense or loss reasonably incurred in complying with the subpoena.
“ (2) If the person named in a subpoena is a corporation, the amount and undertaking mentioned in subrule (1) may be tendered to anyone on whom the subpoena may be served.
“ (3) If a person named in a subpoena has not received an amount that the person considers adequate to compensate for expense or loss reasonably incurred, or expected to be reasonably incurred, in complying with the subpoena, the person may, after having given the party who served the subpoena at least 7 days notice of his or her intention to do so, apply in writing to the arbitrator or umpire to decide the amount that is sufficient to compensate for the expense or loss.
“ (4) A decision under subrule (3) is taken to be a judgment of the court for the amount decided against the party who served the subpoena and may be enforced accordingly.
“ 11E Production by non-party
“ (1) This rule applies to a subpoena for production of a document or thing in relation to a proceeding that requires attendance before the arbitrator or umpire.
“ (2) Unless the court otherwise orders, if the person named in the subpoena is not a party, the subpoena must allow the person to produce the document or thing to the arbitrator or umpire, at the address nominated by the arbitrator or umpire and included in the subpoena, not later than the day before the first day the person's attendance is required, instead of attending and producing the document or thing as required by the subpoena.
“ (3) If a document or thing is produced to the arbitrator or umpire under subrule (2), the arbitrator or umpire must give a receipt to the person producing the document or thing.
“ (4) This rule does not apply to a part of the subpoena that requires the person named to attend to give evidence in the proceeding.
“ 11F Costs of complying with subpoena
“ (1) This rule applies if a person named in a subpoena for production of a document or thing—
(a) is not a party; and
(b) incurs substantial expense or loss in complying with the subpoena that is in excess of the amount provided under rule 11D (Conduct money).
“ (2) The arbitrator or umpire may order the party who served the subpoena to pay the person an amount, decided by the arbitrator or umpire, sufficient to compensate the person for the expense or loss reasonably incurred in complying with the subpoena.
“ (3) An amount under subrule (2) is in addition to any amount the person served with the subpoena is entitled to be paid under rule 11D, or because of order 65 rule 7 (Scales of costs) and Schedule 4 (Costs).
“ (4) An order under subrule (2) is taken to be an award of the umpire or arbitrator against the party who served the subpoena and may be enforced accordingly.
“ 11G Banker's books
“ (1) This rule applies if—
(a) the person named in the subpoena is an officer of a bank; and
(b) the bank is not a party; and
(c) the subpoena requires the person to produce a banker's book; and
(d) the contents of the banker's book can be proved under a law in force in the Territory in a way other than the production of the book.
“ (2) Unless the court otherwise orders, the subpoena must expressly allow the person to produce proof of the relevant entries in accordance with that law, instead of producing the banker's book.
“ (3) The registrar is not required to work out whether this rule applies to a subpoena when issuing it, but the court may set aside as irregular a subpoena which does not comply with subrule (2).
“ 11H Subpoenas to produce document
“ (1) A subpoena to produce a document must have written on it or annexed to it a written statement commencing with the words ‘Order 83 rules 11M and 11N of the Rules of Court are as follows—' and followed by the text of rules 11M and 11N.
“ (2) Subrule (1) does not apply to a subpoena if it is intended that the procedure provided for in rules 11M and 11N is not to be followed.
“ 11I Service of subpoenas
“ (1) A subpoena in a proceeding must be served personally.
“ (2) However, if the person named in the subpoena is a party and is represented by a solicitor in the proceeding, the subpoena may, with the solicitor's consent, be served on the person by leaving it at the solicitor's address for service.
“ (3) A subpoena is taken to be served personally on a medical expert if, at the place where the expert's practice is carried on—
(a) it is given to a person apparently engaged (whether as employee or otherwise) in the practice and apparently at least 16 years old; or
(b) if a person mentioned in paragraph (a) refuses to accept the subpoena—the subpoena is put down in the person's presence and the person is told of the nature of the subpoena.
“ (4) If a subpoena requires a medical expert to attend to give evidence, it may be served later than 6 weeks before the day fixed for the hearing of the proceeding only if—
(a) the subpoena is a subpoena served in accordance with leave given under subrule (5); or
(b) the court otherwise orders.
“ (5) If a medical expert to whom a notice has been delivered in accordance with rule 11J fails to attend the court on the day and at the time stated in the notice, the court may give leave for the service of a subpoena on the medical expert requiring the attendance of the medical expert.
“ 11J Notice instead of subpoena to medical expert
“ (1) In a proceeding, instead of a subpoena, a notice may be delivered to a medical expert stating the date and time fixed for the hearing of the proceeding and requesting the expert's attendance.
(2) A notice under subrule (1)—
(a) may be delivered in the same way as a subpoena may be served on a medical expert under subrule 11I (1) or (3); and
(b) must not be delivered later than 6 weeks before the date fixed for the hearing of the proceeding.
“ 11K No shortening of time for service
The parties may not, by consent, shorten the time prescribed under this Division for service of a subpoena on, or delivery of a notice under subrule 11J (1) to, a medical expert.
“ 11L Setting aside
“ (1) The court may, on motion by the person named in a subpoena, set aside the subpoena entirely or in part.
“ (2) Notice of a motion under subrule (1) must be filed and served on the party who served the subpoena.
“ 11M Delivery of documents to the arbitrator or umpire—no objection
“ (1) This rule applies if a party serves a subpoena on a person (the served person ) to produce a document and the served person does not object to producing the document to the arbitrator or umpire or to its being made available by the arbitrator or umpire for inspection by a party.
“ (2) The party serving the subpoena may arrange with the served person that the document be sent or delivered to the arbitrator or umpire.
“ (3) If an arrangement is made under subrule (2), the served person must—
(a) post the document and related material to the arbitrator or umpire so as to reach the arbitrator or umpire before the day stated in the subpoena; or
(b) deliver the document and related material to the arbitrator or umpire before that day.
“ (4) On receiving a document produced in accordance with this rule, the arbitrator or umpire must notify the party that served the subpoena or the party's solicitor that the arbitrator or umpire has received the document from the served person.
“ (5) The arbitrator or umpire may allow a party or, if requested by a party, someone else to inspect a document produced under this rule.
“ (6) If the served person produces documents to the arbitrator or umpire in accordance with this rule and with an arrangement with the party who served the subpoena, the served person has answered the subpoena and is taken to have complied with it.
“ (7) In this rule:
"related material", for a document required to be produced under subpoena, means—
(a) the subpoena or a copy of the subpoena; or
(b) a schedule giving brief particulars of the document and containing an adequate reference to the proceeding in which the subpoena was issued and the name and address of the person producing the document.
“ 11N Delivery of documents to the arbitrator or umpire—objection
“ (1) This rule applies if a party serves a subpoena on a person (the served person ) to produce a document and the served person objects to producing the document to the arbitrator or umpire or to its being made available by the arbitrator or umpire for inspection by a party.
“ (2) The served person is not required to produce the document to the arbitrator or umpire, but must answer the subpoena by attending before the arbitrator or umpire at the time and place mentioned in the subpoena and make his or her objection to the arbitrator or umpire.”.
31 Schedule 1 forms 11 and 12
Schedule 1 forms 11 and 12 are omitted and the following forms substituted:
“ FORM 11 (See o 19 r 21)
AFFIDAVIT FOR ENTRY OF APPEARANCE AS GUARDIAN
[ Heading as in form 1 ]
On ( date ) I, ( name ) of ( address ), ( occupation ), say on oath:
1 AB, of is an appropriate person to act as litigation guardian of the defendant, and has no interest in the matters in question in this action [matter] adverse to that of the defendant.
2 The consent of AB to act as litigation guardian of the defendant is annexed.
Sworn etc.
[ The consent of the person to act as litigation guardian must be annexed. ]”.
“ FORM 12 (See o 19 r 48)
MEMORANDUM ON NOTICE OF JUDGMENT
[ Heading as in form 1 ]
To XY , of
Take notice:
1 From the service of this notice you [ or, as the case may be , the person with a legal disability] will be bound by proceedings in this cause in the same way as if you [ or the person with a legal disability] had been originally made a party.
2 You [ or the person with a legal disability] may, on entering an appearance at the Registrar's office, attend proceedings under this judgment [ or order].
3 You [ or the person with a legal disability] may within 1 month after the service of this notice apply to the Court to discharge, vary or add to the judgment [ or order].”.
32 Insertion of forms
Schedule 1 is amended by inserting after form 82 the following forms:
“ FORM 83 (See o 83 r 6A)
NOTICE OF PAYMENT INTO COURT
IN ARBITRATION
IN THE SUPREME COURT OF
THE
AUSTRALIAN CAPITAL
TERRITORY
SC No of 2000
In the matter of an arbitration agreement dated
BETWEEN AB Claimant AND CD Respondent |
CD has paid into court $ , and says that [that amount
or $ , part of that amount,]
[is enough to
satisfy the claimant's claim or is enough to satisfy the
claimant's claim for and
$ (the other part of
that amount) is enough to satisfy the claimant's claim
for
] [ and admits liability or but denies liability ]
.
Dated , 20 .
PQ ,
Solicitor for the respondent.
To XY , the claimant's solicitor.
“ FORM 84 (See o 83 rr 6B and 6D)
ACCEPTANCE OF AMOUNT PAID INTO COURT
IN ARBITRATION
IN THE SUPREME COURT OF
THE AUSTRALIAN CAPITAL
TERRITORY
In the matter of an arbitration agreement dated
BETWEEN AB Claimant AND CD Respondent |
XY accepts the amount of $ paid by CD into court in satisfaction of the claim in relation to which it was paid in (and abandons his or her other claims in the arbitration).
Dated , 20 .
XY,
Solicitor for the
claimant
To PQ , solicitor for
CD , and to RS ,
solicitor for EF
“ FORM 85 (See o 83 r 11B)
SUBPOENA TO GIVE EVIDENCE
( Heading as in form 1 )
To ( name )
( address )
THE COURT ORDERS that you must attend to give evidence—
(a) before ( arbitrator or umpire );
(b) at ( address nominated by the arbitrator or umpire );
(c) on ( insert date ) at ( insert time ) and until you are excused from further attending.
Dated , 20 .
By ( arbitrator or umpire )
( Signature and description
of officer of the Court )
Note 1 Failure to comply with this subpoena may be contempt of court and may result in your arrest. If you think the subpoena is oppressive, you may apply to the Court to have it set aside completely or in part.
Note 2 If you have not been paid an amount that you consider adequate to compensate you for expense or loss reasonably incurred, or expected to be reasonably incurred, in complying with this subpoena, you must still comply with the subpoena and you may apply in writing to ( arbitrator or umpire ) under order 83 subrule 11D (3) of the Supreme Court Rules for a decision about the amount that is sufficient to compensate you for the expense or loss. Before applying, you must give 7 days written notice of your intention to do so to the person who had the subpoena served.
Note 3 Any questions relating to the requirements of this subpoena should be addressed to ( name of party who requested the issue of the subpoena, or that party's solicitor ) and not to the Court or ( arbitrator or umpire ).
Issued at the request of ( name ), the applicant's solicitor ( or as the case may be ).
“ FORM 86 (See o 83 r 11B)
( Subpoena to an individual )
SUBPOENA TO PRODUCE
( Heading as in form 1 )
To ( name )
( address )
THE COURT ORDERS that you must attend and produce this subpoena and the documents and things described in the Schedule for the purposes of evidence—
(a) before ( arbitrator or umpire );
(b) at ( address nominated by the arbitrator or umpire );
(c) on ( insert date ) at ( insert time ) and until you are excused from further attending, but—
(i) instead of so attending you may produce this subpoena and the documents and things described in the schedule to ( arbitrator or umpire ) at the address above not later than the day before the 1st day on which you are required to attend; and
(ii) if, as an officer of a bank, you are required by this subpoena to produce a banker's book, the bank is not a party and section 48 of the Evidence Act 1995 (Cwlth) applies, you need not produce it if you produce proof of the relevant entries in it in accordance with that Act.
SCHEDULE
( Description of documents and things )
Dated , 20 .
By the Court
( Signature and description of officer of the Court )
Note 1 Failure to comply with this subpoena may be contempt of court and may result in your arrest. If you think the subpoena is oppressive, you may apply to the Court to have it set aside completely or in part.
Note 2 If you have not been paid an amount that you consider adequate to compensate you for expense or loss reasonably incurred, or expected to be reasonably incurred, in complying with this subpoena, you must still comply with the subpoena and you may apply in writing to ( arbitrator or umpire ) under order 83 subrule 11D (3) of the Supreme Court Rules for a decision about the amount that is sufficient to compensate you for the expense or loss. Before applying, you must give 7 days written notice of your intention to do so to the person who had the subpoena served.
Note 3 Original documents (where available) are to be produced to ( arbitrator or umpire ) in compliance with this subpoena unless otherwise indicated below:
photocopies of documents are acceptable. |
If photocopies of documents are indicated as being acceptable (see above) and are produced to ( arbitrator or umpire ) in compliance with this subpoena, you may elect to have the photocopies returned to you or destroyed by ( arbitrator or umpire ) on completion of the proceeding:
the photocopies should be returned | ||
| | | |
| | | the photocopies should be destroyed. |
(please tick appropriate box if applicable)
Note 4 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. However, you may in writing on or attached to this subpoena ask that they be posted to you at another address given by you or that you be told when they are available for collection.
Note 5 Any questions about the requirements of this subpoena should be addressed to ( name of party who requested the issue of the subpoena, or that party's solicitor ) and not to the Court or ( arbitrator or umpire ).
Issued at the request of ( name ), the applicant's solicitor ( or as the case may be ).
“ FORM 87 (See o 83 r 11B)
( Subpoena to a corporation for production and for its proper officer to answer questions etc about possession etc of documents )
SUBPOENA TO PRODUCE AND TO ANSWER QUESTIONS
( Heading as in form 1 )
To ( name of corporation )
( address )
THE COURT ORDERS that—
(a) you must produce this subpoena and the documents and things described in the schedule for the purposes of evidence by causing your proper officer to attend and produce them—
(i) before ( arbitrator or umpire );
(ii) at ( address nominated by the arbitrator or umpire );
(iii) on (insert date) or, if notice of a later date is given to you, that later date ( or state the beginning and concluding dates of sittings of the arbitrator or umpire and that notice would be given of a date during those sittings when the subpoena and documents and things are to be produced ) at (insert time) and until the officer is excused from further attending, but—
(A) instead of so attending you may produce this subpoena and the documents and things described in the schedule to ( arbitrator or umpire ) at the above place by hand or post in either case so that he or she receives them not later than the day before the 1st day on which your officer is required to attend; and
(B) if you are a bank, you are required by this subpoena to produce a banker's book, you are not a party to these proceedings and section 48 of the Evidence Act 1995 (Cwlth) applies, you need not cause your officer to produce it if you cause the officer to produce proof of the relevant entries in it in accordance with that Act; and
(b) the officer who is to attend must make inquiries for the purpose of answering, and, on attending, must answer, the questions ( arbitrator or umpire ) requires the officer to answer about possession or custody of those documents and things.
SCHEDULE
( Description of documents and things )
Dated , 20 .
By the Court
( Signature and description of officer of the Court )
Note 1 Failure to comply with this subpoena may be contempt of court and may result in the sequestration of your property or arrest of 1 or more of your officers, or both. If you think the subpoena is oppressive, you may apply to the Court to have it set aside completely or in part.
Note 2 If you have not been paid an amount that you consider adequate to compensate you for expense or loss reasonably incurred, or expected to be reasonably incurred, in complying with this subpoena, you must still comply with the subpoena and you may apply in writing to ( arbitrator or umpire ) under order 83 subrule 11D (3) of the Supreme Court Rules for a decision about the amount that is sufficient to compensate you for the expense or loss. Before applying, you must give 7 days written notice of your intention to do so to the person who had the subpoena served.
Note 3 Original documents (where available) are to be produced to ( arbitrator or umpire ) in compliance with this subpoena unless otherwise indicated below:
photocopies of documents are acceptable. |
If photocopies of documents are indicated as being acceptable (see above) and are produced to ( arbitrator or umpire ) in compliance with this subpoena, you may elect to have the photocopies returned to you or destroyed by ( arbitrator or umpire ) on completion of the proceeding:
the photocopies should be returned | ||
| | | |
| | | the photocopies should be destroyed. |
(please tick appropriate box if applicable)
Note 4 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. However, you may in writing on or attached to this subpoena ask that they be posted to you at another address given by you or that you be told when they are available for collection.
Note 5 Any questions about the requirements of this subpoena should be addressed to ( name of party who requested the issue of the subpoena, or that party's solicitor ) and not to the Court or ( arbitrator or umpire ).
Issued at the request of ( name ), the applicant's solicitor ( or as the case may be ).
“ FORM 88 (See o 83 r 11B)
SUBPOENA TO PRODUCE AND TO GIVE EVIDENCE
( Heading as in form 1 )
To ( name )
( address )
THE COURT ORDERS that you must attend and produce this subpoena and the documents and things described in the schedule for the purposes of evidence and that you must attend for the purposes of giving evidence—
(a) before ( arbitrator or umpire );
(b) at ( address nominated by the arbitrator or umpire );
(c) on ( insert date ) at ( insert time ) and until you are excused from further attending, but—
(i) instead of producing the documents and things described in the schedule when so attending, you may produce this subpoena and the documents and things described in the schedule to ( arbitrator or umpire ) at the place mentioned above not later than the day before the 1st day on which you are required to attend; and
(ii) if, as an officer of a bank, you are required by this subpoena to produce a banker's book, the bank is not a party and section 48 of the Evidence Act 1995 (Cwlth) applies, you need not produce it if you produce proof of the relevant entries in it in accordance with that Act.
SCHEDULE
( Description of documents and things )
Dated , 20 .
By the Court
( Signature and description of officer of the Court )
Note 1 Failure to comply with this subpoena may be contempt of court and may result in your arrest. If you think the subpoena is oppressive, you may apply to the Court to have it set aside completely or in part.
Note 2 If you have not been paid an amount that you consider adequate to compensate you for expense or loss reasonably incurred, or expected to be reasonably incurred, in complying with this subpoena, you must still comply with the subpoena and you may apply in writing to ( arbitrator or umpire ) under order 83 subrule 11D (3) of the Supreme Court Rules for a decision about the amount that is sufficient to compensate you for the expense or loss. Before applying, you must give 7 days written notice of your intention to do so to the person who had the subpoena served.
Note 3 Original documents (where available) are to be produced to ( arbitrator or umpire ) in compliance with this subpoena unless otherwise indicated below:
photocopies of documents are acceptable. |
If photocopies of documents are indicated as being acceptable (see above) and are produced to ( arbitrator or umpire ) in compliance with this subpoena, you may elect to have the photocopies returned to you or destroyed by ( arbitrator or umpire ) on completion of the proceeding:
the photocopies should be returned | ||
| | | |
| | | the photocopies should be destroyed. |
(please tick appropriate box if applicable)
Note 4 If you produce the documents and things to ( arbitrator or umpire ), you are still required to attend to give evidence.
Issued at the request of ( name ), the applicant's solicitor ( or as the case may be ).”.
33 Amendment of Subordinate Law 1995 No 15
Subordinate Law 1995 No 15 is amended by omitting from order 14A subrule 8 (2) as inserted by rule 12 “who is under a disability” and substituting “with a legal disability”.