LAWS4001 Lecture Notes - Lecture 4: Unconformity, Crossclaim, Natural Justice
Lecture 4 & 5 – Defining the questions for trial & Pleadings
Time
1.11 – Reckoning of time
(1) Any period of time fixed by these rules, or by any judgment or order of the court or by
any document in any proceedings, is to be reckoned in accordance with this rule.
(2) If a time of one day or longer is to be reckoned by reference to a given day or event, the
given day or the day of the given event is not to be counted.
(3) If, apart from this subrule, the period in question, being a period of 5 days or less, would
include a day or part of a day on which the registry is closed, that day is to be excluded.
(4) If the last day for doing a thing is, or a thing is to be done on, a day on which the registry
is closed, the thing may be done on the next day on which the registry is open.
(5) Section 36 of the Interpretation Act 1987 (which relates to the reckoning of time) does not
apply to these rules.
1.12 – Extension of time
(1) Subject to these rules, the court may, by order, extend or abridge any time fixed by these
rules or by any judgment or order of the court.
(2) The court may extend time under this rule, either before or after the time expires, and may
do so after the time expires even if an application for extension is made after the time expires.
10.1 – Service of filed documents
(1) Unless the court orders otherwise, a party that files a document must as soon as
practicable serve copies of the document on each other active party.
(2) In the case of proceedings in the Local Court, an originating process may, and a defence
must, be served on the other parties, on behalf of the party by whom it was filed, by an officer
of the Local Court.
(3) Despite subrule (2), a defence that is filed in proceedings in the Local Court by means
of Online Registry (within the meaning of Part 3) must be served on the other parties by the
party that filed the defence rather than by an officer of the Local Court.
10.2 – Service of Affidavit
(1) A party intending to use an affidavit that has not been filed must serve it on each other
interested party not later than a reasonable time before the occasion for using it arises.
(2) A party who fails to serve an affidavit as required by subrule (1) may not use the affidavit
except by leave of the court.
10.3 – Service of Originating Process
(1) This rule applies to proceedings in the Supreme Court.
(2) Subject to this Part, originating process may be served anywhere in Australia, whether in
New South Wales or elsewhere.
(3) An originating process for service in Australia, but outside New South Wales, must bear a
statement either that the plaintiff intends to proceed under the Service and Execution of
Process Act 1992 of the Commonwealth or that the plaintiff intends to proceed under
the Uniform Civil Procedure Rules 2005 .
(4) The plaintiff may proceed otherwise than in accordance with the intention stated under
subrule (3), but only with the leave of the court.
A garnishee order is a common form of enforcing a judgment debt against a creditor to
recover money. Put simply, the court directs a third party that owes money to the judgement
debtor to instead pay the judgment creditor. The third party is called a 'garnishee'
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s 10.20 – Personal Service required only in certain circumstances
(b) any originating process in the Local Court must be served in one of the following
ways:
(i) it may be personally served on the defendant,
(ii) it may be left, addressed to the defendant, at the defendant's business or
residential address, with a person who is apparently of or above the age of 16
years and apparently employed or residing at that address,
(iii) if served by the Local Court, it may be sent by post, addressed to the
defendant, to the defendant's business or residential address in an envelope
marked with a return address (being the address of the Local Court but not so
identified), and
(c) any order for examination, garnishee order or subpoena for attendance in
proceedings in the Local Court must be served in one of the following ways:
(i) it may be personally served on the person to whom it is directed,
(ii) it may be left, addressed to the person to whom it is directed, at that
person's business or residential address, with a person who is apparently of or
above the age of 16 years and apparently employed or residing at that
address, and
(d) any subpoena for production in proceedings in the District Court or the Local
Court must be served in one of the following ways:
(i) it may be served personally on the person to whom it is directed,
(ii) it may be left, addressed to the person to whom it is directed, at that
person's business or residential address, with a person who is apparently of or
above the age of 16 years and apparently employed or residing at that
address,
(iii) it may be sent by post, addressed to the person to whom it is directed, to
the person's business or residential address in an envelope marked with the
return address of the party at whose request the subpoena was issued.
(3) If an envelope, posted as referred to in subrule (2) (b) (iii), is returned to the court by the
postal authority as having not been delivered to the addressee:
(a) service of the document contained in the envelope is taken not to have been
effected, and
(b) any judgment given or entered on the basis of that service is to be set aside,
and the registrar must so advise the party by whom or on whose behalf it was posted.
(4) Service of a subpoena in accordance with subrule (2) (c) (ii) or (d) (ii) or (iii) is taken to
be personal service for the purposes of rule 33.5 (1).
(5) Unless an earlier date is proved, a defendant who enters an appearance is taken to have
been personally served with the relevant originating process on the date on which appearance
was entered.
(6) The provisions of this rule concerning the service of originating processes extend to the
service of amended statements of claim if the defendant to be served has not filed either a
notice of appearance or notice of defence.
10.21 – How personal service effected generally
(1) Personal service of a document on a person is effected by leaving a copy of
the document with the person or, if the person does not accept the copy, by putting the copy
down in the person's presence and telling the person the nature of the document.
(2) If, by violence or threat of violence, a person attempting service is prevented from
approaching another person for the purpose of delivering a document to the other person, the
person attempting service may deliver the document to the other person by leaving it as near
as practicable to that other person.
(3) Service in accordance with subrule (2) is taken to constitute personal service.
10.22 – Personal service on a corporation
Personal service of a document on a corporation is effected:
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(a) by personally serving the document on a principal officer of the corporation, or
(b) by serving the document on the corporation in any other manner in which service of such
a document may, by law, be served on the corporation.
10.26 – Personal Service on someone who ‘keeps house’
(1) If a person keeps house (that is, remains in premises to which a person attempting service
cannot lawfully or practicably obtain access), the person attempting service may serve
the document on the person keeping house:
(a) by doing one of the following:
(i) placing the document in the mail-box for the premises,
(ii) affixing the document to an outer door of the premises,
(iii) if the person attempting service cannot lawfully or practicably obtain
access to any such mail-box or door, affixing the document to some part of
the premises, or to some fence or wall surrounding the premises, as near as
practicable to the principal door or entrance to the premises, and
(b) within 24 hours after doing so, by posting a notice to the premises, addressed to
the person keeping house, informing the person of the fact that the document has been
so placed or affixed.
(2) Service in accordance with subrule (1) is taken to constitute personal service.
10.27 – Proof of Identity
For the purposes of proof of service, evidence of a statement by a person of his or her identity
or of his or her holding some office is evidence of his or her identity or that he or she holds
that office, as the case may be.
Civil Procedure Act 2005
s 21 – Defendants right to set-off
(1) If there are mutual debts between a plaintiff and a defendant in any proceedings,
the defendant may, by way of defence, set off against the plaintiff's claim any debt that is
owed by the plaintiff to the defendant and that was due and payable at the time the defence of
set-off was filed, whether or not the mutual debts are different in nature.
(2) This section extends to civil proceedings in which one or more of the mutual debts is
owed by or to a deceased person who is represented by a legal personal representative.
(3) This section does not apply to the extent to which the plaintiff and defendant have agreed
that debts (whether generally or as to specific debts) may not be set off against each other.
(4) This section does not affect any other rights or obligations of a debtor or creditor in
respect of mutual debts, whether arising in equity or otherwise.
(5) This section is subject to section 120 of the Industrial Relations Act 1996
(6) In this section,
"debt" means any liquidated claim.
Integral Home Loans Pty Ltd & Anor v Interstar Wholesale Finance Pty Ltd & Anor (No 2)
[2007] NSWSC 592
s22 – Defendants right to cross claim
(1) Subject to subsection (2), the court may grant to the defendant in any proceedings (
"the first proceedings" ) such relief against any person (whether or not a plaintiff in
the proceedings) as the court might grant against that person in
separate proceedings commenced by the defendant for that purpose.
(2) Relief may not be granted under this section against a person who is not a plaintiff in the
first proceedings unless the relief relates to, or is connected with, the subject of the first
proceedings.
(3) A person against whom a defendant makes a claim for relief under this section:
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Document Summary
Lecture 4 & 5 defining the questions for trial & pleadings. 10. 3 service of originating process (1) this rule applies to proceedings in the supreme court. (2) subject to this part, originating process may be served anywhere in australia, whether in. New south wales or elsewhere. (3) an originating process for service in australia, but outside new south wales, must bear a statement either that the plaintiff intends to proceed under the service and execution of. Process act the uniform civil procedure rules 2005 . (4) the plaintiff may proceed otherwise than in accordance with the intention stated under subrule (3), but only with the leave of the court. 1992 of the commonwealth or that the plaintiff intends to proceed under. Put simply, the court directs a third party that owes money to the judgement debtor to instead pay the judgment creditor. Integral home loans pty ltd & anor v interstar wholesale finance pty ltd & anor (no 2)
