DISTRICT COURT RULES, These Rules may be cited as "The District Court Rules, 1959."

Transcription

1 DSTRCT COURT RULES, These Rules may be cited as "The District Court Rules, 1959." These rules were sanctioned by Order in Council dated 9 April, 1959, published in Gazette of 10 April, 1959, p FEES 2. The Schedule of Scale of Fees Costs hereto forms part of these Rules. NTERPRETATON 3. n the construction of these Rules, unless the contrary intention appears, the following terms shall have the respective meanings hereinafter assigned to them, that is to say :- "Foreign Court"-The Court of a district into which process is issued from another Court. "Foreign district"-the district into which process is issued from another district. "Home Court"-The Court from which process is originally issued. "Home district"-the district from which process is originally issued. "Sealed"--Sealed with the seal of the particular District Court. "The Act"-"The District Courts Act of 1958." "Trial"-The trial of the action or the hearing of any matter in Court. OFFCE HOURS 4. The Registry of a Court shall be open on every day of the year except Saturdays, Sundays, Court holidays shall be open from nine o'clock in the forenoon until four o'clock in the afternoon except in vacation when it shall be open from nine o'clock in the forenoon until one o'clock in the afternoon: Provided that the Registry may from time to time either generally or on a particular occasion be closed or opened by order of the Court or a Judge. The Registry shall be closed between the hours of one o'clock two o'clock in the afternoon if the Court or a Judge so directs. S. The following days shall be observed as holidays of the Court, that is to say, New Years Day, Good Friday, Easter Monday, Easter Tuesday, Christmas Day, the three days following Christmas Day, Anzac Day, Labour Day, the birthday of the Sovereign (unless another day is appointed to be kept in place of any of the holidays aforesaid, then that other day); every day the afternoon of every day which, upon appointment by or under any Act to be observed as a public holiday, or, as the case may be, part public holiday, is by or under that Act required to be kept as a holiday at the place in question such other days as may be appointed by "The Holidays Acts, 1912 to 1954." DUTES OF THE REGSTRAR 6. The duty of acting in Court as Registrar keeping minutes of the proceedings of the Court shall be performed by the Registrar unless the Judge otherwise directs. The Judge may direct that any such dutie& may be performed by a Deputy Registrar or Oerk in the Registry.

2 548 DSTRCT COURTS Vol The Registrar shall have the custody of the seal of the Court shall keep or cause to be kept the books in the forms set forth in the Schedule every entry in such books shall have a number prefixed corresponding with that of the plaint to which the entry relates. Such seal shall bear the words "District Court" also the word "Registry" the name of the place where such Registry is situated. 8. The Registrar shall file or cause to be filed all documents delivered to him in any action or matter shall distinguish them by the number of the plaint or matter in respect of which they are filed. 9. The Registrar shall place or cause to be placed all documents the plaint summons before the Judge at the trial. He shall enter or cause to be entered in the appropriate book all particulars required by the form of such book. 10. The Registrar shall have the general supervision of the officers employed in the Registry shall distribute their duties from time to time in such manner as may be most expedient, but so that when any officer is appointed to discharge any special duty such duty shall be discharged by such officer. All acts things which by these Rules are required to be performed done in, or with reference to, the Registry shall be done by the Registrar or officers employed in the Registry, or with reference to them, as the case may be. 11. The Registrar shall sign seal issue all summonses warrants forthwith after the plaints are filed or warrants applied for respectively shall sign seal issue all judgments orders of the Court provided that all summonses subprenas judgments orders warrants may be signed sealed issued all documents may be received filed by a Deputy Registrar or a Registrar's clerk for the Registrar. 12. Where a plaint summons is required to be served by a bailiff in a foreign district, the Registrar shall transmit the same a copy thereof to the bailiff of the foreign district with a letter according to the form in the Schedule; if the plaint summons be returned to the Registrar by the bailiff of the foreign district not served, the Registrar shall forthwith give notice to the plaintiff of such non-service. 13. The Registrar shall, in all cases in which a plaint summons is to be served by a bailiff in a foreign district, require the plaintiff to deposit with him a sum of money sufficient to defray the expenses of incidental to such service. U. The Registrar shall deliver to the bailiff the plaint summons for endorsement as required by section 73. See notes to s. 33. SEARCHES 15. Searches may be made of the records of the Court during office hours. RECEPTS FOR AND PAYMENT OF MONEYS 16. Whenever money is paid into or deposited in Court, whether before or after judgment, an acknowledgment in writing of such payment or deposit shall be given by the Registrar or by his clerk on his behalf. Money to which suitors are entitled, shall be paid out to them upon dem made during office hours.

3 DSTRCT COURT RULES rr OFFCERS OF COURT, ETC. NOT TO BECOME SURETY 17. No officer of the Court, or practising solicitor, or clerk of such officer or solicitor, shall become surety in any case whereby the practice or an order of the Court security is required. WHERE FORMS NOT PROVDED 18. n proceedings for which forms are not provided in the Schedule, the Registrar shall frame the forms required, using as guides those so provided or the forms used in the Supreme Court. HEARNG OF REMTTED ACTONS 19. Upon receiving the Order of the Supreme Court under section 129 of the Act, the Registrar shall forthwith apply to the Judge of the District Court to appoint a day for the hearing of the action. 20. Where under section 129 of the Act any action is ordered to be tried in a District Court, the Registrar of the District Court mentioned in the order shall enter the action in the minute book of the Court, for hearing on the day appointed by the Judge of such Court, shall give notice to the parties or their solicitors pursuant to section 129 of the Act. CARRAGE OF ORDERS 21. Orders for the payment of money, or costs, or both, orders of adjournment, when directed to be served, shall in all cases be prepared by the party having the carriage of the order, or his solicitor, be settled signed sealed by the Registrar delivered to the bailiff, who shall send them by post or otherwise to the parties on whom they are respectively directed to be served. f a party having the carriage of any order required to be issued, fails for seven days from the making thereof to apply to have such order issued, the Registrar shall report that fact to a Judge, who may direct the party or his solicitor to appear before him, on the party or his solicitor appearing before him, the Judge may make such further order give such directions in the premises as he shall think proper. Provided that if any party haviqg the carriage of such an order does not within seven days from the date such order is made by the Court or a Judge, have such order settled, signed, sealed, by the Registrar, then any other party shall be at liberty to take such action. RE-SSUED WARRANTS 22. n all cases of warrants to be executed in a foreign district, the Registrar of the foreign Court shall, immediately on the receipt of the warrant, enter it in the foreign execution re-issued book. BALFF'S DUTES (Sections 37 to 42) 23. The bailiff shall keep books make returns in the forms set forth in the Schedule. 24. The bailiff shall attend personally, or by his lawful deputy, at the office of the Registrar when necessary for the purpose of receiving plaints summonses, warrants other documents, for performing any duty imposed upon him; shall at the said office, compare with

4 550 DSTRCT COURTS Vol. 4 the original, the copy of every plaint summons, warrant or other document delivered to him, so as to be able (where copies are delivered to him) to prove the agreement of the copy with the original. n Brisbane the attendance shall be on every day the Registry is open. 25. Where a plaint summons has been served in a foreign district by the bailiff of that district, he shall, nine clear days before the return day of the summons, transmit the copy thereof to the Registrar of the home district with an affidavit of such service, or, if the plaint summons has not been served, he shall return it with an affidavit stating why it has not been served; the affidavit shall state the same particulars as to service or non-service (as the case may be), as are required generally by the Act Rules in respect of the service or non-service of a plaint summons; if such affidavit be defective, the bailiff shall amend the same in conformity with the directions of the Judge of the home district. 26. Four days before the day of holding any Court, the bailiff shall deliver to the Registrar a list of all plaints summonses issued to him returnable at such Court, such return shall state the date mode of service, or the cause of non-service of each plaint summons. 27. Where the service of any plaint summons has been undertaken by the plaintiff, or any competent person employed by him, the plaint summons if served, or the plaint summons copy, if not served, shall be returned to the Registrar at least six days before the return day thereof together with an affidavit of service, or cause of non-service, of such plaint summons. 28. Where a plaint summons has not been served, remains in the hs of the bailiff, he shall, at the time of making out the list aforesaid, give notice to the plaintiff of the fact of such non-service, in the form set forth in the Schedule. 29. The bailiff shall enter in the order book all orders for the payment of money, or costs, or both, which he shall have received, the date on which he shall have caused the same to be posted or otherwise forwarded. 30. Every bailiff having or receiving any money by virtue of any process issued out of the home Court shall, as soon as practicable, pay over the same to the Registrar of the same Court, shall return all such process to the Registrar from whom he received the same, to be filed by him. 31. The bailiff shall enter in his warrant book every warrant which he has been required to execute, shall state, from time to time therein, what he shall have done under each warrant, if the same be not executed within one calendar month from the day of its delivery to him, why it was not executed; the bailiff shall at all reasonable times, give to a suitor all information that he may reasonably require as to the execution or non-execution of any warrant which has been issued at the instance of such suitor. 32. Whenever a warrant required to be executed in a foreign district has not been executed within one calendar month from the day of its receipt by the bailiff of the foreign Court, such bailiff shall, on the day after the termination of such month, make a return to the Registrar of

5 DSTRCT COURT RULES T the home Court of what he shall have done under such warrant, why it has not been executed; when the same warrant has not been executed during the time that it is in force, such bailiff shall return the same to the said Registrar, within twenty-four hours from the expiration of such time, shall endorse on such warrant the reason why the same could not be executed, he shall sign such endorsement, but the bailiff shall return such warrant to the said Registrar, at any time though unexecuted if he shall be directed to do so by the said Registrar, shall give such information as such Registrar may require in the matter of the warrant. 33. Whenever a warrant has been executed by the bailiff of the foreign district under section 171 of the Act, he shall make return forthwith of what he has done, to the bailiff of the home district, shall also forthwith transmit all moneys received under the said warrant to the Registrar of the Court from which it was issued. SOLCTORS 34. Where by the Act, or these Rules, any act may be done by any party, such act may be done either in person or by his solicitor, save where otherwise specially provided. 35. Where a party acts by a solicitor, service of any proceeding or document upon such solicitor or delivery of the same at his office, or sending the same to him by post, shall be deemed to be good service upon the party for whom such solicitor acts. 36. A solicitor acting for a party in any action or matter shall give notice in writing by post or otherwise to the Registrar to the other party, or his solicitor, that he is so acting, giving an address for service, whereupon service of any document, notice, or proceeding whatsoever authorised by the Act, or these Rules, to be served upon a solicitor so acting, shall be effected upon such solicitor accordingly, he shall be deemed to be the solicitor acting for the party on whose behalf he has given such notice, until notice of change of solicitor has been duly given. 37. No notice need be given under the preceding rule by a solicitor acting for the plaintiff, where the plaint summons has been filed by such solicitor, duly signed by him, or by a solicitor acting for the defendant, where a defence has been signed filed by him, or where he has signed an admission of service. 38. Any party who acts by a solicitor shall be at liberty to change his solicitor without any order for that purpose, but when any such change is made, he shall give notice in writing to the Registrar to the opposite party, or his solicitor, of such change, of the name or firm place of business of the new solicitor, the Registrar shall file the notice given to him. REPLEVN (Section 63) 39. n actions of replevin, no other cause of action shall be joined in the claim, which shall specify therein the goods the taking of which is complained of. 40. The plaint shall be in the form given in the third Schedule to the "Distress Replevin Ejectment Act of 1867."

6 552 DSTRCT COURTS Vol. 4 }lct referred to: Distress, Replevin, Ejectment }lct of 1867, 31 Vic. No. 16, title L}lNDLORD }lnd TENJ\NT. AGREEMENT UNDER SECTON Where the parties, in pursuance of section 67 of the Act, agree to the trial of an action in a District Court, a plaint shall be lodged a summons with plaint issued thereon, as in other cases, in such cases, the rules practice of the Court shall apply so far as the same can be applied. SUMMONS 42. f a plaint summons be not served before the date of the commencement of the sittings of the Court to which the defendant is summoned, the Registrar may from time to time as often as may be necessary, subject to the provisions of rule 77 as to time, alter the date of hearing to the date of commencement of the next sittings of the Court, give notice thereof to the parties, whether the defendant has entered a defence or not. RENEWAL OF SUMMONS ORGNAL SUMMONS N FORCE FOR TWELVE MONTHS 43. No summons shall be in force for more than twelve months from the day of the date thereof, including the day of such date; but if any defendant therein named has not been served within that time, the plaintiff may, before the expiration of the twelve months, apply in writing to the Registrar for leave to renew the summons. 44. The Registrar, if satisfied that reasonable efforts have been made to serve such defendant, service has not been effected, or for other good reason, may order that the summons be renewed for a further period not exceeding twelve months from the date of such renewal, inclusive of such date, so on from time to time during the currency of the renewed summons, the plaintiff may apply for such renewal accordingly: Provided that no summons shall, without the leave of the Court, be extended for periods exceeding in the aggregate five years from the date of the issue of the summons. 45. The summons shah be renewed by being marked with the word "Renewed" or "Renewed" for a period (stating it), the date of such renewal, such marking shall be sealed with the seal of the Court by the proper officer. (a) A summons so renewed shall remain in force be available to prevent the operation of any Statute whereby the time for the commencement of any action is, or may be, limited, for all other purposes, from the date of the issuing of the original summons. (b) Where a summons is renewed or an application is made for the purpose of preventing the operation of any Statute as aforesaid, it shall not be necessary that any attempt has been made to serve the summons on the defendant such purpose shall be a good reason for the Court to order that the summons be renewed. A fresh plaint shall not be filed. 46. Particulars of the renewal of the Summons shall be written in red ink in the plaint book.

7 DSTRCT COURT RULES T The production of a summons purporting to be marked so as to show that the same has been renewed in manner aforesaid, shall be sufficient evidence of its having been so renewed, of the commencement of the action as of the original date of the summons, for all purposes. SERVCE OF PLANTS AND SUMMONSES AND OTHER PROCESS UNDERTAKNG TO ACCEPT SERVCE 48. Any plaint summons, or other originating process, shall be deemed to have been duly served upon a party if a solicitor accepts service thereof on behalf of such party signs a memorum to that effect, undertakes to appear thereto according to the exigencies thereof. PERSONAL SERVCE, HOW EFFECTED 49. Unless by these Rules it is otherwise prescribed, personal service of any document whatsoever in any action shall be effected in the same manner as is prescribed in section 73 of the Act with respect to the service of a plaint summons. ON PARTCULAR DEFENDANTS HUSBAND AND WFE SO. Where husb wife are both defendants in any action, they shall both be served unless the Court or a Judge otherwise orders. NFANTS 51. Where an infant is a defendant in any action, service on his father, mother, or guardian, or if he has none, then upon the person with whom the infant resides, or under whose care he is, shall, unless the Court or a Judge otherwise orders, be deemed good service on the infant: Provided that the Court or a Judge may, on application, order that service made or to be made on the infant himself shall be deemed good service. MENTALLY SCK PERSONS 52. Where a mentally sick person, within the meaning of "The Mental Hygiene Act of 1938," is a defendant in any action, service- (i) On his committee, or other person authorised to administer his estate; or (ii) f he has no committee is confined in any mental hospital, private mental hospital, or hospital within the meaning of "The Mental Hygiene Act of 1938," the Public Curator; or (iii) n any other case, upon the person with whom the mentally sick person resides, or under whose care he is, shall, unless the Court or a Judge otherwise orders, be deemed good service on such defendant. Act referred to: Mental Hygiene Acts, 1938 to 1961; see now Mental Health Act of 1962, title MENTAL HEALTH. PRSONERS 53. Where a defendant is employed dwells, or is imprisoned in any prison, gaol, or other place of confinement, service at that place

8 554 DSTRCT COURTS Vol. 4 upon the governor or superintendent or any person appearing to be at the time the officer in charge thereof or, if service upon that person cannot be effected, then upon the gate-keeper or lodge-keeper of that place of confinement shall, unless the Court or a Judge otherwise orders, be deemed good service on such defendant. SEAMEN 54. Where a defendant is living or serving on board of any ship or vessel, service upon a person on board who is or appears to be at the time, in charge of the ship or vessel shall, unless the Court or a Judge otherwise orders, be deemed good service on such defendant. SOLDERS, ETC. 55. Where a defendant is serving as a member of any naval, military, or air force is residing or quartered in any barracks, camp, or other place, service at that place upon the adjutant or any officer or sergeant (or person holding a rank corresponding to or higher than sergeant) of the unit to which the defendant belongs, unless the Court or a Judge otherwise orders, be deemed good service on such defendant. ON AGENT-SERVCE ON AGENT 56. (1) Where a contract has been entered into within the State by or through an agent residing or carrying on business within the State, on behalf of a principal residing or carrying on business outside the State, a plaint summons in an action relating to or arising out of such contract may, by leave of the Court or a Judge given before the determination of such agent's authority, or of his business relations with the principal, be served on such agent. (2) A copy of the order giving such leave, of the plaint summons, shall forthwith be sent by post to the defendant at his last known place of residence or of business out of the State. (3) Nothing in this Rule shall invalidate or affect any other mode of service authorised by these Rules or by the laws of the Commonwealth of Australia or of a Territory thereof or of any State outside SERVCE BY LOCAL AUTHORTY N CERTAN CASES 57. n any action commenced by a Local Authority, within the meaning of "The Local Government Acts, 1936 to 1958," brought under or for any of the purposes of those Acts in a Court, service of any plaint summons or other process of the Court may be effected on the defendant by registered post, or certified mail service, at his usual or last known place of abode or business, or the address in Queensl for service last notified for the purpose by him to the Local Authority by separate written advice, or the registered office under or for the purposes of any Act which requires him or any firm of which he is a member to have a registered office. Act referred to: Local Government Acts, 1936 to 1963, title LOCAL AUTHORTES. SERVCE BY REGSTERED POST OR CERTFED MAL 58. Service on any person pursuant to these Rules or an order of the Court or Judge by registered post or certified mail service shall be effected by forwarding a sealed copy or copies of the plaint

9 DSTRCT COURT RULES rr summons, documents, or other process by prepaid registered post or, as the case may be, certified mail, as provided by the postal regulations for the time being in force, in a letter or packet addressed to such person at such place or address as by these Rules such service may be effected such service shall, unless the contrary is proved, be deemed to have been effected at the time when the letter or packet would be delivered in the ordinary course of post; the production of the registration receipt for a registered letter or packet, or a receipt of posting of a letter or packet sent by certified mail service, addressed as aforesaid, together with evidence on oath by the sender that such letter contained such sealed copy or copies, shall be sufficient proof of service of the plaint summons or other process: Provided that in the case of service by a Local Authority, within the meaning of "The Local Government Acts, 1936 to 1958," such testimony as to the contents of the letter may be given orally or on affidavit by the clerk or other officer of the Local Authority authorised by it in that behalf. J\ct referred to: Local Government Acts, 1936 to 1963, title LOCAL J\UTHORTES. PREVENTON OF SERVCE KEEPNG CLOSED HOUSE 59. Where a person keeps his place of residence or of business or any part thereof closed in order to prevent service on him of any plaint summons or other process being effected, the proof whereof to the satisfaction of the Court or a Judge or Registrar, as the case may be shall lie upon the party so prevented, it shall be sufficient service to affix a copy of such plaint summons or other process on a door of such place or part. Proof of the matters herein in this Rule required to be proved, may be made (a) on Summons for Directions prior to service, or (b) ex parte on Summons for leave to proceed after service, or (c) at the trial or hearing of the action or matter. VOLENCE OR THREATS 60. Where any person attempting to serve personally any plaint summons or other process is prevented by the violence or threats of the person to be served, or of any other person or persons in concert with him, from so effecting service, it shall be sufficient service to leave a copy of such plaint summons or other process as near to the person to be served, or to his place of residence or of business, as may be practica ble. DAYS ON WHCH SERVCE NOT TO BE EFFECTED 61. No plaint summons, subprena, notice, order, warrant, or other process (not being an execution against the person) shall be served or executed on Sunday, Christmas Day, Good Friday, or Anzac Day, but, subject to these Rules, such days shall be counted in the computation of any time prescribed by these Rules in relation to such service. SUBSTTUTED SERVCE SUBSTTUTED SERVCE MAY BE ALLOWED 62. (1) f it is made to appear to the Court or a Judge, that a party to any action in the Court is, from any cause, unable to effect service

10 556 DSTRCT COURTS Vol. 4 of any plaint summons, or other process in the action in any prescribed manner, the Court or a Judge may make such order for substituted or other service, or for the substitution for service of notice by advertisement or otherwise, as may seem just, where any such order has been carried out, the steps taken shall have the same effect as personal service. (2) Every application to the Court or a Judge for an order for substituted or other service, or for the substitution of notice for service shall be supported by an affidavit setting forth the grounds upon which the application is made. DSPUTES AS TO SERVCE 63. f any dispute arises or the Court or a Judge entertains any doubt as to the due service of any plaint summons or other process, the Court or Judge may make enquiries, either on oral evidence or on affidavits, whether such service was good or otherwise, may make such order thereon as to costs as may be just. 64. Under special circumstances, the Court or a Judge may order that a person who has not been regularly served but who has had knowledge of the issue of the plaint summons or other process, shall be deemed to have been sufficiently served; whereupon the action shall proceed as though such person had been regularly served. Substituted service can only be ordered in cases where, but for some difficulty in effecting it, personal service would be permissible, Sloman v. Governor of New Zeal (1876), 1 C.P.D. 563; Field v. Bennett (1886), 56 L..Q.B. 89. t has been held that if at the time of issue of a writ for service within the jurisdiction there could at law have been personal service of it upon the defendant sought to be served but circumstances prevented such service being made, substituted service of such writ may be allowed, Trent Cycle Co. v. Beattie (1899), 15 Times Rep But if at the time of issue, personal service of such writ could not at law have been made, then unless the evidence satisfies the court that the defendant went out of the jurisdiction to evade service, substituted service cannot be ordered, Fry v. Moore (1889), 23 Q.B. 395: Re Urquhart (1890),24 Q.B.D See also Deane v. Deane, [1929] St. R. Qd. 124; Grice v. Grice, [1930] St. R. Qd. 261, see rule 165. As to cases where it is not believed substituted service will bring knowledge of the proceedings to the person to be served, see Miscamble v. Phillips, [1936] St. R. Qd See also Wilson v. Harris (1903), 24 N.Z.L.R. 730 (service on agent allowed where defendant had left jurisdiction); Carl Kahn & Co. v. Henderson (1885), N.Z.L.R. 3 S.C. 364 (substituted service on defendant's wife ordered). As to the proper course when the whereabouts of the defendant is discovered after substituted service has been effected, see Scott v. Scott, [1933] Q.W.N.8. EFFECT OF DEFENDANT'S APPEARANCE 65. The appearance of a defendant at the trial, or the filing of his defence, in any action shall render proof of service in the action of the plaint summons on the defendant unnecessary. PROOF OF SERVCE NDORSEMENT OF SERVCE 66. f the service has not been personal, the indorsement referred to in section 73 of the Act shall contain the statement which has been made by the person to whom the plaint summons or other process was delivered, or other circumstances from which it may be inferred that the service of the plaint summons or other process has come to the knowledge of the defendant. 67. The plaint summons or other process so indorsed shall forthwith, upon indorsement, be delivered or forwarded to the Registrar of the Court where the plaint summons or other process was issued.

11 DSTRCT COURT RULES rr DEPOSTON AS TO SERVCE 68. The person who serves any plaint summons or other process, notice, or any other document, whatsoever in any action or matter may attend before any justice depose in writing, on oath, to the time, place, manner of the service. 69. Such deposition (herein referred to as the "affidavit of service") shall be indorsed on or annexed to the plaint summons, or other process, or document, or a copy thereof, shall, on production to the Court, or to a Judge, be sufficient proof of the service. 70. The plaint summons or other process, indorsed with the statement of service as referred to in section 73 of the Act, together with the affidavit of service, where that affidavit is made under the foregoing Rules, shall be filed with the Registrar of the Court where the plaint summons or other process was issued. 71. Nothing in the foregoing Rules as to proof of service shall prevent the proving of service by any other means. 72. Where a summons has been served in due time to prevent the operation of any Statute of Limitations, either party dies after such service, after the lapse of the period within which it is provided that an action may be brought, proceedings may be taken by or against the surviving party, or by or against the personal representative of the deceased party, within one year from the date appointed for the holding of the Court at which the summons required the defendant to appear. ADDRESS FOR SERVCE 73. Every plaint summons, defence defence counter-claim shall give an address for service of the plaintiff or the defendant as the case may be within five miles of the Registry of the Court at which the summons is issued in the following form:- "The address for service of the [Plaintiff or as the case may be] is at " 74. The address so given shall be the place at which the party giving such address may be served. Unless otherwise provided, any notice or service required by the Act these Rules may be made by posting the notice or document to be served, addressed to the person to be served or his solicitor at such address for service. FLNG PLANTS, ETC. 75. On filing the plaint summons the plaintiff shall, in all cases, deliver at the office of the Registrar as many copies thereof, as there are defendants an additional copy to be filed; where the plaintiff desires to abon any part of his claim, or to admit a counter-claim or set-off, sues in a District Court for the residue, the abonment, or the admission of the counter-claim or set-off, shall appear on the face of the plaint summons all copies. PLANT AND SUMMONS FOR RECOVERY OF VACANT LAND 76. Service of a plaint summons in an action to recover l may, in the case of vacant possession, when it cannot be effected on the defendant personally, be made by posting a copy of the summons upon the door of the dwelling-house, or, if there is no dwelling-house, then on some conspicuous part of the property.

12 558 DSTRCT COURTS Vol. 4 TMES FOR SERVCE OF SUMMONS 77. A summons shall be made returnable at a sittings of the Court of the district in which it is issued fixed to be held at such a date as will, if prompt service of the summons be effected, allow the period specified hereunder to elapse between the day of service the date fixed for return of the summons. The time so specified (with the exception of summonses served outside the State) are :- Number of clear days to elapse between the date 01 service return day. Where place of service is Not more than 100 miles from the Court 15 days More than 100 miles but not more than 200 miles 20 days More than 200 miles 25 days ADJOURNMENT WHERE NSUFFCENT TME 78. f such service has been made, the period specified as aforesaid has not elapsed before the return date, or where a counter-claim has been made the time limited for an answer to the counter-claim has not expired, such answer has not been filed, then- (a) Unless such time elapses during the sittings, the Judge orders that the action shall be tried, or (b) All the parties consent to the action being tried at that sittings, the trial of the action shall be adjourned to a date to be fixed by a Judge or adjourned by the Judge or in his absence, the Registrar to the next sittings of the court. ONE DEFENDANT OUTSDE DSTRCT 79. Where in case of persons jointly liable, all the persons so liable shall not reside or carry on business within the same district, it shall be lawful for the plaintiff to bring his action in the court of a district within which any of the persons jointly liable shall reside or carry on business, to serve any of such persons with a plaint summons in the manner hereinafter directed, such person may serve the other person or persons so jointly liable with a notice of such plaint summons, in order that he or they may join in defending such action; in case such other persons shall not so join in defending, the action may proceed, judgment be obtained execution issued against the person who shall have been served, notwithsting that any other person jointly liable may not have been served with any plaint summons or notice thereof or may not have joined in such action; no plea in abatement shall be allowed for, or advantage taken of, the non-joinder of the person or persons so jointly liable: Provided always that the person against whom execution may have been issued shall retain any right which he may have, to require contribution from any other person jointly liable with him, in case he shall have caused any such other person to be personally served with a copy of the plaint summons served upon him, in such action, three days before the day appointed for appearing answering the same the judgment or a copy thereof certified by the Registrar recovered against him in such action shall be admissible in evidence in any action for contribution afterwards brought by him against any person fk) personally served as aforesaid, but in case he shall not have caused such

13 DSTRCT COURT RULES rr other person to be personally served as aforesaid, then the liability of any such person to contribution shall be proved in the ordinary manner. DEFENCE (Section 75) 80. n every case in which the defendant shall have filed a defence, he shall on the day of filing, or as soon thereafter as shall be practicable, serve a copy thereof upon the plaintiff's solicitor upon the record or if he has no solicitor upon the plaintiff. ANSWER TO COUNTER-CLAM 81. f a party desires to contest a counter-claim, he shall file serve a reply within eight days of the service on him of the defence counter-claim. AMENDMENT 82. A plaintiff may amend his plaint or reply, a defendant his defence, or defence counter-claim, at any time before the trial, but the Judge may disallow any such amendment at the trial, or make such other order as to adjournment, costs, or otherwise as he may think fit. PARTES 83. Where a plaintiff avails himself of the provisions of section 101 of the Act proceeds against anyone or more of several persons jointly answerable the defendant or defendants sued may avail himself or themselves of any set-off or other defence to which he or they would be entitled if all the persons answerable were made defendants. PAYMENT NTO AND OUT OF CoURT (Section 80) 84. (1) n any action for a debt or damages the defendant may at any time after service of the plaint summons upon notice to the plaintiff pay into court a sum of money in satisfaction of the claim or where several causes of action are joined in one action in satisfaction of one or more of the causes of action; provided that with a defence setting up tender before action the sum of money alleged to have been tendered must be brought into Court. (2) Where the money is paid into court in satisfaction of one or more of several causes of action the notice shall specify the cause or causes of action in respect of which payment is made the sum paid in respect of each such cause of action unless the Court or a Judge otherwise order. (3) The notice shall be in the form 13. Receipt of the notice shall be acknowledged in writing by the plaintiff within three days. The notice may be modified or withdrawn or delivered in an amended form by leave of the court or a Judge upon such terms as may be just; provided that the defendant may without leave deliver a notice increasing the amount of any sum paid into court. (4)- (a) Where the money is paid into court under Sub-rule 1 the plaintiff may within seven days of the receipt of the notice of payment into court, or where more than one payment into the court has been made, within seven days of the receipt of the notice of the last payment into court, accept the whole

14 560 DSTRCT COURTS Vol. 4 sum or anyone or more of the specified sums in satisfaction of the claim or in satisfaction of the cause or causes of action to which the specified sum or sums relate, by giving notice to the defendant in the form 13A. Thereupon he shall be entitled to receive payment of the accepted sum or sums in satisfaction as aforesaid. (b) Payment shall be made to the plaintiff or on his written authority to his solicitor, thereupon proceedings in the action or in respect of the specified cause or causes of action (as the case may be) shall be stayed. (c) f the plaintiff accepts money paid into court in satisfaction of his claim, or if he accepts a sum or sums paid in respect of one or more specified causes of action, gives notice that he abons the other cause or causes of action, he may, after four days from payment out unless the court or a Judge otherwise order, tax his costs incurred to the time of payment into court, forty-eight hours after taxation may sign judgment for his taxed costs. (d) A plaintiff in an action for defamation who takes money out of court may apply by summons to a Judge in Chambers for leave to make in open court a statement in terms approved by the Judge. (e) This rule does not apply to an action or cause of action to which a defence of tender before action is pleaded. (5) f the whole of the money in court is not taken out under sub-rule 4, the money remaining in court shall not be paid out except in satisfaction of the claim or specified cause or causes of action in respect of which it was paid in in pursuance of an order of the court or a judge, which may be made at any time before, at or after trial. (6)- (a) Money may be paid into court under sub-rule 1 by one or more of several defendants sued jointly or in the alternative, upon notice to the other defendant or defendants. (b) f the plaintiff elects within seven days after receipt of notice of payment into court to accept the sum or sums paid into court, he shall give notice as in the form 13A to each defendant. (c) Thereupon all further proceedings in the action or in respect of the specified cause or causes of action (as the case may be) shall be stayed, the money shall not be paid out except in pursuance of an order of the court or a Judge dealing with the whole costs of the action or cause or causes of action (as the case may be). (d) n an action for defamation against several defendants sued jointly, if any defendant pays money into court the plaintiff may within seven days elect to accept the sum paid into court in satisfaction of his claim against the defendant making the payment shall give notice to all the defendants as in the form 13B. The plaintiff may then proceed to tax his costs against the defendant who has made such payment in accordance with sub-rule 4 (c) the

15 DSTRCT COURT RULES rr. 84, action shall thereupon be stayed as against that defendant. The plaintiff may continue with the action against any other defendant, but the sum paid into court shall be set off against any damages awarded to the plaintiff against the defendant or defendants against whom the action is continued. (7) A plaintiff or other person made defendant to a counter-claim may pay money into court in accordance with the foregoing sub-rules, with the necessary modification. (8) Except in an action to which a defence of tender before action is pleaded or in which a defence under section 22 of "The Defamation Law of Queensl" has been filed, no statement of the fact that money has been paid into court under the preceding sub-rules shall be inserted in any defence, answer or other document, no communication of that fact shall at the trial of any action be made to the Judge or Jury until all questions of liability amount of debt or damages have been decided, but the Judge s!1all, in exercising his discretion as to costs, take into account both the fact that money has been paid into court the amount of such payment. (9) Money paid into court under an order of the court or a Judge shall not be paid out of court except in pursuance of an order of the court or a Judge; provided that, where money has been paid into court by the defendant in satisfaction of a condition of an order giving leave to defend, he may (unless the court or a Judge shall otherwise order) by notice in writing appropriate the whole or any part of such money, any additional payment if necessary to the whole or any specified portion of the plaintiff's claim or if he pleads a tender may by his defence or answer appropriate the whole or any part of the money in Court as payment into Court of the money alleged to have been tendered; the money so appropriated shall thereupon be deemed to be money paid into court pursuant to the preceding sub-rules relating to money paid into court or money paid into court with a defence of tender as the case may be, shall be subject in all respects thereto. Act referred to: Defamation Law of 53 Vic. No. 12. see title DEFAMATON. Generally-The rule as to payment into court provides:- ( ) The fact amount of payment into court must be disclosed bv notice to the plaintiff.. (2) Payment into court is not to be disclosed in any defence. answer or other document or communicated at the trial to the judge or jury until all questions of liability or debt or damages have been decided, except where there is a defence of tender before action or a defence under s. 22 of the Defamation Law of (3) The judge in exercising his discretion as to costs shall take into account both the fact that money has been paid into court the amount of lch payment. (4) Payment into court may be made at any time on notice to the plaintiff; if there be co defendants. to those co-defendants. (5) Where tender is pleaded. payment out cannot be made except by order. See Forms No A, 13B, post. DSCONTNUANCE ds. f the plaintiff be desirous of not proceeding in any action or matter, he may give notice thereof to the Registrar to the defendant, or his solicitor, after the giving of such notice, the defendant shall not be entitled to any further costs than those reasonably incurred up to the 19

16 562 DSTRCT COURTS Vol. 4 time of the receipt of such notice, unless the Judge shall otherwise order; the Registrar upon the application of the defendant or his solicitor may sign judgment for the defendant's costs. JUDGMENT UPON ADMSSON OF DEFENDANT (Section 81) 86. All confessions under section 81 of the Act shall be delivered to the Registrar eight clear days before the return of the summons: Provided that at any time before the trial is called on, the defendant may confess admit the claim according to the form set forth in the Schedule, subject however to an order by the Judge to pay such costs as the plaintiff has incurred in consequence of the defendant's not having delivered such confession as hereinbefore required. JUDGMENT N CLAM FOR DAMAGES 87. When the claim made in an action is for pecuniary damages, or in detinue, the defendant fails or all the defendants, if more than one, fail to file a defence, the plaintiff may enter interlocutory judgment against such defendant, or defendants, the Registrar shall, after consultation with a Judge, fix a date time for the assessment of the damages, or the value of the goods, the damages, as the case may be in respect of the causes of action disclosed by the plaint. PARTCULARS 88. The court or a Judge may order particulars, or further better particulars, to be filed before proceeding with the assessment of damages. CONSENT TO JUDGMENT (Section 82) 89. n all cases of consent under section 82 of the Act the defendant may confess the amount of the plaintiff's costs judgment may be entered accordingly the amount of such costs shall be stated separately in the judgment. JUDGMENT SUMMONS 90. When a defendant obtains leave to defend, the action shall, unless the Judge shall otherwise order, be put in the list for hearing at the next ensuing sittings of the court for the district in which the summons was issued. 91. A defendant shall file with the Registrar all affidavits intended to be used by him on the hearing of a judgment summons one clear day before the return day thereof. JUDGMENT BY DEFAULT 92. Before signing judgment under section 83 an affidavit of debt by the plaintiff or some person able of his own knowledge to depose to the facts relied on in support of such judgment shall be filed. See Form No. 20, post. EVDENCE (Section 107) 93. Subprenas to witnesses may be is:jucd, without leave of a Judge, to be served either in the home or in any foreign district (subject to the provisions of the "Service Execution of Process Act, ") outside the State of

17 DSTRCT COURT RULES rr Act referred to: Service Execution of Process Act, (Commonwealth), see title PRACTCE. 94. t shall b sufficient if a subprena to a witness be served within a reasonable time before the return day thereof. 95. A subprena may be issued in blank, or with the names therein of some only of the witnesses it is desired to summon, on good cause being shown to the satisfaction of the Registrar. n every case, the party or solicitor issuing the subprena shall undertake to pay the extra fees (if any) payable if the names of more than three persons are afterwards inserted. PAYMENT OF EXPENSES OF WTNESS 96. f any witness who has been summoned to attend, shall, before he is sworn request the Judge to fix the amount to be paid to him as a witness, the Judge may do so, may decline to compel the witness to give his evidence until the amount so fixed shall have been paid to him or security given to the satisfaction of the Judge. DOCUMENTARY EVDENCE 97. Where any documents are produced to the court from proper custody, they shall be read without further proof if they appear genuine, if no objection be taken thereto; if the admission of any document so produced be objected to, the Judge may adjourn the hearing for proof of such documents, the party objecting shall pay the costs caused by such objection in case the documents shall afterwards be proved unless the Judge shall otherwise order. TRAL 98. The parties to any action or proceeding at any time before or at the time when the action or proceeding is called on, may by consent postpone the trial or hearing, as the Judge shall direct. 99. When an action or proceeding is adjourned, no order of adjournment shall be served on either party, unless by direction of the Judge When anything required by the rules practice of the court to be done by either party before or during the trial or hearing, has not been done the Judge may in his discretion, on such terms as he shall think fit, adjourn the trial or hearing, to enable the party to make compliance. EFFECT OF NON-COMPLANCE 101. Non-compliance with any of these rules or with any rule of practice for the time being in force, shall not render any proceedings void unless the court or a Judge so directs; but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner upon such terms as the court or Judge may think fit. NON-APPEARANCE OF PLANTFF 102. f at the return day of a summons, or at any adjournment of the court at which it is returnable, the plaintiff does not appear, the defendant does appear has not admitted, or does not admit, the plaintiff's claim either wholly or in part, the Judge may, in his discretion, award to the defendant such costs as he shall think just. ORDERS GRANTNG LEAVE 103. When the court gives leave to take any proceeding, it shall not be necessary to draw up any order unless the Judge otherwise directs.

18 564 DSTRCT COURTS Yo1. 4 NOTCE OF DEMAND OF JURY 104. Notice of dem of a jury shall be made in writing to the Registrar of the Court eight clear days before the day appointed for the hearing of the action. COSTS (Section 123) 105. The Judge shall in every case in which costs are allowed, direct what number of witnesses are to be allowed on taxation as between party party, their witnesses' expenses shall not exceed those mentioned in the Schedule of Scale of Fees Costs. EXPENSES OF WTNESSES 106. The expenses of witnesses, whether they have been examined or not, may, in the discretion of the Judge, be allowed although they have not been subpcrnaed. APPROPRATON OF MONEYS 107. Money paid into court on a judgment shall be appropriated first in satisfaction of the costs afterwards in satisfaction of the claim. COSTS OF WARRANTS OF EXECUTON 108. Costs of warrants of execution, whether executed or unexecuted, or unproductive, shall be allowed against the judgment debtor unless the Judge shall otherwise direct Costs of execution against the person whether executed or unexecuted shall be allowed against the defendant, unless the Judge shall otherwise direct. POSSESSON FEE 110. No possession fee shall be payable where an execution is paid out at the time of the levy; but if the officer shall necessarily remain in possession more than one hour, the execution shall be paid out on the day of levy, the possession fee for that day shall be charged paid. FLNG BLL OF COSTS 111. n all cases in which a solicitor shall have been employed by either party, such party shall recover costs of action, the amount whereof has not been determined by the Judge at the hearing, the solicitor of the party entitled to such costs shall, at any time within twelve calendar months after the date of judgment, file his Bill of Costs in taxable form with the Registrar, who shall thereupon fix a time for the taxation thereof. A copy of such Bill of Costs, with the appointment endorsed thereon, shall forthwith be served on the opposite party, if either party fail to appear the Registrar may tax ex parte: Provided that in undefended actions the service on the defendant of such Bill of Costs appointment to tax may be made by posting the same to the defendant's last known place of abode or address: Provided also that the time for filing a Bill of Costs may be extended by the Registrar, before or after the period aforesaid shall have expired. REMTTED Ar";"ONS (Section 129) 112. Where an action is remitted by order of the Supreme COllrt to a District Court the plaintiff shall lodge with the Registrar thereof, if