Supreme Court Amendment (Miscellaneous) Rules 20049 July 2004
We, the Honourable WILLIAM JOHN ELLIS COX, Companion of the Order of Australia, Chief Justice, and the Honourable PETER GEORGE UNDERWOOD, Officer of the Order of Australia, the Honourable EWAN CHARLES CRAWFORD and the Honourable PIERRE WILLIAM SLICER, Puisne Judges of the Supreme Court of Tasmania, on the recommendation of the Rule Committee, make the following Rules of Court under the Supreme Court Civil Procedure Act 1932 .
These Rules of Court may be cited as the Supreme Court Amendment (Miscellaneous) Rules 2004 .
These Rules of Court take effect on the day on which their making is notified in the Gazette.
In these Rules of Court, the Supreme Court Rules 2000 are referred to as the Principal Rules.
4. Rule 5 amended (Interpretation)
Rule 5 of the Principal Rules is amended by inserting after the definition of endorsement the following definition:hearsay rule has the same meaning as in the Evidence Act 2001 ;
5. Rule 34A inserted
After rule 34 of the Principal Rules , the following rule is inserted in Division 1:34A. Certificate of finalisation
(1) If an action or proceeding has been finalised otherwise than by judgment, order or discontinuance, the party who filed the originating process in the action or proceeding is to file a notice certifying that the action or proceeding has come to an end.(2) A notice filed under subrule (1) is to –(a) be in the prescribed form; and(b) be filed within 21 days after the action or proceeding has come to an end.
6. Rule 67 substituted
Rule 67 of the Principal Rules is rescinded and the following rule is substituted:If the Court or judge reserves the costs of a motion, application or other proceeding, those costs are to follow the event unless the Court or a judge otherwise directs.
7. Rule 88 amended (Actions)
Rule 88 of the Principal Rules is amended as follows:(a) by omitting from paragraph (o) "rule 90(a)" and substituting " rule 90(1)(a) ";(b) by omitting from paragraph (p) "rule 90(a)" and substituting " rule 90(1)(a) ".
8. Rule 89 amended (Applications to Court)
Rule 89(n) of the Principal Rules is amended by omitting "rule 90(n)" and substituting " rule 90(1)(n) ".
9. Rule 90 amended (Applications to judge in chambers)
Rule 90(1) of the Principal Rules is amended as follows:(a) by omitting from paragraph (s) " Part VIII of the Evidence Act 1910 " and substituting " Part 2 of the Evidence on Commission Act 2001 ";(b) by omitting from paragraph (zfa) " De Facto Relationship Act 1999 " and substituting " Relationships Act 2003 ".
10. Rule 93 amended (Certain judgments in open court)
Rule 93 of the Principal Rules is amended by omitting "paragraph (zk), (zl) or (zm) of rule 90" and substituting " rule 90(1)(zk) , (zl) or (zm) ".
11. Rule 147 amended (Application of rules)
Rule 147 of the Principal Rules is amended by omitting "This Division applies" and substituting " Rules 148 , 149 , 150 , 151 , 152 and 153 apply".
12. Rules 147A , 147B and 147C inserted
After rule 147 of the Principal Rules , the following rules are inserted in Division 10:147A. Service outside Australia
(1) Subject to rules 147B and 147C , originating process may be served outside Australia without an order of the Court where the proceedings fall either wholly or partly into one or more of the following cases:(a) if the person to be served is domiciled, or ordinarily resident, in the State;(b) if the proceedings are based on a cause of action arising in the State;(c) if the proceedings are based on a tort committed in the State;(d) if the proceedings, wholly or partly, are based on, or are for the recovery of damages in respect of, damage suffered in the State caused by a tortious act, or tortious omission, wherever occurring;(e) if the subject matter of the proceedings, in so far as it concerns the person to be served, is property in the State;(f) if the person to be served has submitted, or has agreed to submit, to the jurisdiction of the Court for the proceedings;(g) if the person to be served outside the State is joined as a party to proceedings that are brought against another person served, or to be served, in the State;(h) if a contract is the basis of proceedings and the contract –(i) is made in the State; or(ii) is made, on behalf of the person to be served, by or through an agent carrying on business, or residing, in the State; or(iii) is governed by the law of the State; or(iv) has been breached in the State;(i) if the proceedings are for contribution, or indemnity, for a liability enforceable by proceedings in the Court;(j) if the proceedings are for the perpetuation of testimony relating to property in the State;(k) if the proceedings concern the construction, effect or enforcement of –(i) an Act; or(ii) a regulation or other instrument of legislative character that has, or purports to have, effect under an Act;(l) if the proceedings concern the effect or enforcement of an executive, Ministerial or administrative action done, or purported to have been done, under –(i) an Act; or(ii) a regulation or other instrument of legislative character having, or purporting to have, effect under an Act;(m) if the proceedings concern the construction, effect or enforcement of –(i) an Imperial Act or Commonwealth Act affecting property in the State; or(ii) a regulation or other instrument of legislative character affecting property in the State that has, or purports to have, effect under such an Act;(n) if the proceedings are for the construction, rectification, setting aside or enforcement of any of the following that affects property in the State:(i) a deed;(ii) a will;(iii) a contract;(iv) another instrument;(v) an obligation;(vi) a liability;(o) if the proceedings are for an injunction for anything to be done in the State or against the doing of any act in the State, whether damages are sought or not;(p) if the proceedings are for –(i) the administration of the estate of a person who dies domiciled in the State; or(ii) relief which might be granted in proceedings for administration of such an estate;(q) if the proceedings are for –(i) the execution of a trust which is governed by the law of the State; or(ii) relief which might be granted in proceedings for the execution of such a trust;(r) if the proceedings affect the person to be served in respect of his or her membership of –(i) a corporation in the State; or(ii) an association formed, or carrying on any part of its affairs, in the State;(s) if the proceedings –(i) relate to an arbitration held in the State or governed by the law of the State; or(ii) are brought to enforce in the State an arbitral award, wherever made; or(iii) are for orders that are necessary or convenient for carrying into effect in the State the whole, or any part, of an arbitral award, wherever made;(t) if the proceedings are brought to enforce a judgment in the State, regardless of where the judgment was made;(u) if the proceedings are for relief –(i) that relates to the custody, guardianship, protection or welfare of a minor, whether or not the minor is in the State; and(ii) that the Court has jurisdiction to grant.(2) In subrule (1) , if the originating process to be served under subrule (1) is a cross-claim, the expression "proceedings" means the proceedings on the cross-claim.147B. Leave to proceed if no appearance entered
(1) If an originating process is served on a defendant outside Australia and the defendant does not enter an appearance within the time limited for appearance, the plaintiff is not entitled to proceed against that defendant except with leave of the Court.(2) An application for leave under subrule (1) may be made without serving notice of the application on the defendant.147C. Notice to defendant served outside Australia
If an originating process is served outside Australia, a notice in the prescribed form is to be served with the originating process.
13. Rule 154 amended (Appearance generally)
Rule 154(2)(g) of the Principal Rules is amended by omitting "rule 90(zk), (zl) or (zm)" and substituting " rule 90(1)(zk) , (zl) or (zm) ".
14. Rule 239 amended (Pleadings in defamation actions)
Rule 239(1) of the Principal Rules is amended by omitting " section 13 , 14 or 17 of the Defamation Act 1957 " and substituting " section 13 , 14 or 16 of the Defamation Act 1957 ".
15. Rule 357 amended (Manner of application)
Rule 357 of the Principal Rules is amended by omitting subrule (2) and substituting the following subrule:(2) Unless a judge otherwise directs, the hearsay rule does not apply to evidence in an affidavit made under subrule (1) if the party who adduces the evidence also adduces evidence of its source.
16. Rule 359 amended (Leave to defend)
Rule 359 of the Principal Rules is amended by omitting subrule (2) and substituting the following subrule:(2) Unless a judge otherwise directs, the hearsay rule does not apply to evidence in an affidavit made under subrule (1) if the party who adduces the evidence also adduces evidence of its source.
17. Rule 415 amended (Directions hearing)
Rule 415(3)(j) of the Principal Rules is amended by omitting "to be produced under section 40A or 40C of the Evidence Act 1910 " and substituting "referred to in section 69 of the Evidence Act 2001 ".
18. Rule 427 amended (Amendment of endorsement or pleadings)
Rule 427(2A) of the Principal Rules is amended by omitting "satisified" and substituting "satisfied".
19. Rule 476 amended (Order for depositions)
Rule 476(2) of the Principal Rules is amended by omitting " section 8 of the Evidence Act 1910 " and substituting " section 194D of the Evidence Act 2001 ".
20. Part 19, Division 3 substituted
Division 3 of Part 19 of the Principal Rules is rescinded and the following Division is substituted:Division 3 - Subpoenas(1) In this Division, unless the contrary intention appears –addressee means the person who is the subject of the order expressed in a subpoena;issuing party means the party at whose request a subpoena is issued;subpoena means an order in writing requiring the addressee –(a) to attend to give evidence; or(b) to produce the subpoena, or a copy of it, and a document or thing; or(c) to do both of those things.(2) To the extent that a subpoena requires the addressee to attend to give evidence, it is called a "subpoena to attend to give evidence".(3) To the extent that a subpoena requires the addressee to produce the subpoena, or a copy of it, and a document or thing, it is called a "subpoena to produce".(1) The Court may, in any proceedings, by subpoena order the addressee –(a) to attend to give evidence as directed by the subpoena; or(b) to produce the subpoena, or a copy of it, and any document or thing as directed by the subpoena; or(c) to do both of those things.(2) An officer must not issue a subpoena –(a) if the Court has made an order, or there is a rule of the Court, having the effect of requiring that the proposed subpoena –(i) not be issued; or(ii) not be issued without the leave of the Court and that leave has not been given; or(b) requiring the production of a document or thing in the custody of the Court or another court.(3) If the subpoena is in order for filing, the officer receiving it is to file it, insert the date of filing it and seal with the seal of the Court, or otherwise authenticate, a sufficient number of copies of the subpoena for service and proof of service.(4) A subpoena is taken to have been issued on its being sealed or otherwise authenticated in any registry in accordance with subrule (3) .(1) A subpoena must be in accordance with the prescribed form.(2) A subpoena must not be addressed to more than one person.(3) Unless the Court otherwise orders, a subpoena must identify the addressee by name or by description of office or position.(4) A subpoena to produce must –(a) identify the document or thing to be produced; and(b) specify the date, time and place for production.(5) A subpoena to attend to give evidence must specify the date, time and place for attendance.(6) The date specified in a subpoena must be the date of trial or any other date as permitted by the Court.(7) The place specified for production may be the Court or the address of any person authorised to take evidence in the proceeding as permitted by the Court.(8) If the addressee is a corporation, the corporation must comply with the subpoena by its appropriate or proper officer.497. Setting aside or other relief
(1) The Court may, on the application of a party or any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in respect of it.(2) An application under subrule (1) must be made on notice to the issuing party.(3) The Court may order that the applicant give notice of the application to any other party or to any other person having a sufficient interest.(1) A subpoena must be served personally on the addressee.(2) The issuing party must serve a copy of a subpoena to produce on each other party as soon as practicable after the subpoena has been served on the addressee.(1) Despite rule 498(1) , an addressee must comply with the requirements of a subpoena even if it has not been served personally on that addressee if the addressee has, prior to the time for compliance with the subpoena, actual knowledge of the subpoena and of its requirements.(2) The addressee must comply with a subpoena to produce –(a) by attending at the date, time and place specified for production and producing the subpoena, or a copy of it, and the document or thing to the Court or to the person authorised to take evidence in the proceeding as permitted by the Court; or(b) by delivering or sending the subpoena, or a copy of it, and the document or thing to the Registrar at the address specified for the purpose in the subpoena, so that they are received not less than 2 clear days before the date specified in the subpoena for attendance and production.(3) In the case of a subpoena that is both a subpoena to attend to give evidence and a subpoena to produce, production of the subpoena, or a copy of it, and of the document or thing in any of the ways permitted by subrule (2) does not discharge the addressee from the obligation to attend to give evidence.500. Production otherwise than upon attendance
(1) This rule applies if an addressee produces a document or thing in accordance with rule 499(2)(b) .(2) The Registrar must, if requested by the addressee, give a receipt for the document or thing to the addressee.(3) If the addressee produces more than one document or thing, the addressee must, if requested by the Registrar, provide a list of the documents or things produced.(4) The addressee may, with the consent of the issuing party, produce a copy, instead of the original, of any document required to be produced.(5) The addressee may at the time of production inform the Registrar in writing that any document or copy of a document produced need not be returned and may be destroyed.500A. Removal, return, inspection, copying and disposal of documents and things
The Court may give directions in relation to the removal from and return to the Court, and the inspection, copying and disposal, of any document or thing that has been produced to the Court in response to a subpoena.500B. Inspection of, and dealing with, documents and things produced otherwise than on attendance
(1) This rule applies if an addressee produces a document or thing in accordance with rule 499(2)(b) .(2) On the request in writing of a party, the Registrar must inform the party whether production in response to a subpoena has occurred and, if so, include a description, in general terms, of the documents and things produced.(3) Subject to this rule, no person may inspect a document or thing produced unless the Court has granted leave and the inspection is in accordance with that leave.(4) Unless the Court otherwise orders, the Registrar may permit the parties to inspect at the Registry any document or thing produced unless the addressee, a party or any person having sufficient interest objects to the inspection under this rule.(5) If the addressee objects to a document or thing being inspected by any party to the proceeding, the addressee must, at the time of production, notify the Registrar in writing of the objection and of the grounds of the objection.(6) If a party or person having a sufficient interest objects to a document or thing being inspected by a party to the proceeding, the objector may notify the Registrar in writing of the objection and of the grounds of the objection.(7) On receiving notice of an objection under this rule, the Registrar –(a) must not permit any, or any further, inspection of the document or thing that is the subject of the objection; and(b) must refer the objection to the Court for hearing and determination.(8) The Registrar must notify the issuing party of the objection and of the date, time and place at which the objection will be heard, and the issuing party must notify the addressee, the objector and each other party accordingly.(9) The Registrar must not permit any document or thing produced to be removed from the Registry except on application in writing signed by the solicitor for a party.(10) A solicitor who signs an application under subrule (9) and removes a document or thing from the Registry undertakes to the Court by force of this rule that –(a) the document or thing will be kept in the personal custody of the solicitor or a barrister briefed by the solicitor in the proceeding; and(b) the document or thing will be returned to the Registry in the same condition, order and packaging in which it was removed, as and when directed by the Registrar.(11) The Registrar may, in the Registrar’s discretion, grant an application under subrule (9) subject to conditions or refuse to grant the application.500C. Disposal of documents and things produced
(1) Unless the Court otherwise orders, the Registrar may, in the Registrar’s discretion, return to the addressee any document or thing produced in response to the subpoena.(2) Unless the Court otherwise orders, the Registrar must not return any document or thing under subrule (1) unless the Registrar has given to the issuing party at least 14 days’ notice of the intention to do so and that period has expired.(3) If the addressee has informed the Court that a document, or a copy of a document, produced need not be returned and may be destroyed, the Registrar may, unless the Court otherwise orders, destroy the document or copy instead of returning it.(4) The Registrar must not destroy a document, or a copy of a document, unless the Registrar has first given to the issuing party and to the addressee at least 14 days’ notice of the intention to destroy the document or copy.500D. Costs and expenses of compliance
(1) The Court may order the issuing party to pay the amount of any reasonable loss or expense incurred in complying with the subpoena.(2) If an order is made under subrule (1), the Court must fix the amount or direct that it be fixed in accordance with the Court’s usual procedure in relation to costs.(3) An amount fixed under this rule is separate from and in addition to –(a) any conduct money paid to the addressee; and(b) any witness expenses payable to the addressee.500E. Failure to comply with subpoena – contempt of court
(1) Failure to comply with a subpoena without lawful excuse is a contempt of court and the addressee may be dealt with accordingly.(2) Despite rule 498(1) , if a subpoena has not been served personally on the addressee, the addressee may be dealt with for contempt of court as if the addressee had been so served if it is proved that the addressee had, prior to the time for compliance with the subpoena, actual knowledge of the subpoena and of its requirements.(3) Subrules (1) and (2) are without prejudice to any power of the Court, under any rules of the Court (including any rules of the Court providing for the arrest of an addressee who defaults in attendance in accordance with a subpoena) or otherwise, to enforce compliance with a subpoena.500F. Documents and things in the custody of a court
(1) A party who seeks production of a document or thing in the custody of the Court or of another court may inform the Registrar in writing accordingly, identifying the document or thing.(2) If the document or thing is in the custody of the Court, the Registrar must produce the document or thing –(a) in Court or to any person authorised to take evidence in the proceeding, as required by the party; or(b) as the Court directs.(3) If the document or thing is in the custody of another court, the Registrar must, unless the Court has otherwise ordered –(a) request the other court to send the document or thing to the Registrar; and(b) after receiving it, produce the document or thing –(i) in Court or to any person authorised to take evidence in the proceeding, as required by the party; or(ii) as the Court directs.
21. Rule 502 substituted
Rule 502 of the Principal Rules is rescinded and the following rule is substituted:(1) The hearsay rule does not apply to evidence in an affidavit used in an interlocutory application if the party who adduces the evidence also adduces evidence of its source.(2) Despite subrule (1) , the hearsay rule does not apply to evidence in an affidavit used in an interlocutory application for an order, unless a judge otherwise directs, if the application is –(a) to extend or waive a time limit on the start of proceedings that is imposed by statute; or(b) to extend or waive a time limit on the continuation of proceedings that is imposed by statute; or(c) to set aside a judgment; or(d) to dismiss proceedings for want of prosecution; or(e) to finally dispose of the rights of the parties to the proceedings.
22. Rule 539 amended (Interpretation of Division 1 of Part 22 )
Rule 539 of the Principal Rules is amended by omitting "the Local Courts Act 1896 or" from paragraph (a) of the definition of action .
23. Rule 550 amended (Powers of judge at pre-trial conference)
Rule 550(2)(d) of the Principal Rules is amended by omitting "to be produced under section 40A or 40C of the Evidence Act 1910 " and substituting "referred to in section 69 of the Evidence Act 2001 ".
24. Rule 682 amended (Application of Division 2 of Part 27 )
Rule 682(2) of the Principal Rules is amended by omitting "or the Land and Income Taxation Act 1910 ".
25. Rule 718 amended (Affidavit in support of application)
Rule 718(2) of the Principal Rules is amended as follows:(a) by omitting "and belief";(b) by omitting from paragraph (k) "and the grounds of the deponent's belief".
26. Rule 772 amended (Applications)
Rule 772 of the Principal Rules is amended by omitting subrule (3) and substituting the following subrule:(3) The hearsay rule does not apply to evidence in an affidavit made under subrule (1) if the party who adduces the evidence also adduces evidence of its source.
27. Rule 931 amended (Service of application and order)
Rule 931 of the Principal Rules is amended by omitting subrule (3) and substituting the following subrule:(3) The hearsay rule does not apply to evidence in an affidavit referred to in subrule (2) if the party who adduces the evidence also adduces evidence of its source.
28. Rule 971 amended (Interpretation of Part 39 )
Rule 971 of the Principal Rules is amended by omitting " Part VIII of the Evidence Act 1910 " from the definition of Evidence Act and substituting " Part 2 of the Evidence on Commission Act 2001 ".
W. J. E. Cox
Chief Justice
P. G. Underwood
Puisne Judge
E. C. Crawford
Puisne Judge
P. W. Slicer
Puisne Judge
Countersigned,
I. G. Ritchard
Registrar
Displayed and numbered in accordance with the Rules Publication Act 1953.
Notified in the Gazette on 21 July 2004
These Rules of Court are administered in the Department of Justice.
EXPLANATORY NOTE
(This note is not part of the rule)
These Rules of Court amend the Supreme Court Rules 2000 by –(a) amending the rules relating to hearsay; and(b) inserting a rule to allow reserved costs to follow the event; and(c) inserting rules relating to service outside Australia; and(d) replacing the rules relating to subpoenas; and(e) updating various legislative references; and(f) making minor statute law revision.