New South Wales: Civil Procedure Act 2005 (NSW)

Civil Procedure Act 2005 No 28 An Act with respect to practice and procedure in civil proceedings. Part 1 Preliminary 1 Name of Act This Act is the Civil Procedure Act 2005. 2 Commencement (1) This Act commences on a day or days to be appointed by proclamation, subject to this section. (2) Schedule 5.3 [1], [2] and [3], 5.15 [4], 5.17 [3] and 5.30 [8] commence on the commencement of section 3, or on the commencement of Part 3.2 of the Legal Profession Act 2004, whichever is the later. (3) Schedule 5.3 [4] commences on the commencement of section 9. (4) Schedule 5.43 and 5.44 commence on the commencement of section 18. (5) Different days may be appointed for the commencement of a single provision of Schedule 4 or 5 for the purpose of commencing the repeals or amendments effected by the provision on different days. 3 Definitions (1) In this Act— civil proceedings means any proceedings other than criminal proceedings. claim for relief includes— (a) a claim for possession of land, and (b) a claim for delivery of goods, and (c) a claim for the recovery of damages or other money, and (d) a claim for a declaration of right, and (e) a claim for the determination of any question or matter that may be determined by the court, and (f) any other claim (whether legal, equitable or otherwise) that is justiciable in the court. costs, in relation to proceedings, means costs payable in or in relation to the proceedings, and includes fees, disbursements, expenses and remuneration. court includes tribunal. criminal proceedings means proceedings against a person for an offence (whether summary or indictable), and includes the following— (a) committal proceedings, (b) proceedings relating to bail, (c) proceedings relating to sentence, (d) proceedings on an appeal against conviction or sentence. cross-claim means a claim by a defendant for the grant of relief under section 22. defendant means a person against whom proceedings are commenced, and includes a person against whom a cross-claim is made. exercise a function includes perform a duty. function includes power, authority and duty. hearing includes both trial and interlocutory hearing. judgment includes any order for the payment of money, including any order for the payment of costs. judgment creditor means the person to whom a judgment debt is payable. judgment debt includes— (a) any amount payable under a judgment, and (b) any interest after judgment that is payable on that amount under section 101, and (c) any other amount payable under rules of court without the need for a judgment. judgment debtor means the person by whom a judgment debt is payable. judicial officer has the same meaning as it has in the Judicial Officers Act 1986. jurisdictional limit means— (a) in relation to the District Court, the jurisdictional limit of that Court within the meaning of the District Court Act 1973, and (b) in relation to the Local Court sitting in its General Division, the jurisdictional limit of the Local Court when sitting in that Division within the meaning of the Local Court Act 2007, and (c) in relation to the Local Court sitting in its Small Claims Division, the jurisdictional limit of the Local Court when sitting in that Division within the meaning of the Local Court Act 2007. local rules means rules of court other than uniform rules. minor means a person who is under the age of 18 years. motor accident claim has the same meaning as claim has in the Motor Accident Injuries Act 2017. officer, in relation to a court, includes any registrar or other member of staff employed in the administration of the business of the court, and includes the Judicial Registrar of the District Court. ordinary basis, in relation to the assessment of legal costs that a court has ordered to be paid, means the basis of assessing costs in accordance with Division 3 of Part 7 of the Legal Profession Uniform Law Application Act 2014. originating process means the process by which proceedings are commenced, and includes the process by which a cross-claim is made. person under legal incapacity means any person who is under a legal incapacity in relation to the conduct of legal proceedings (other than an incapacity arising under section 4 of the Felons (Civil Proceedings) Act 1981) and, in particular, includes— (a) a child under the age of 18 years, and (b) an involuntary patient, a forensic patient or a correctional patient within the meaning of the Mental Health Act 2007, and (c) a person under guardianship within the meaning of the Guardianship Act 1987, and (d) a protected person within the meaning of the NSW Trustee and Guardian Act 2009, and (e) an incommunicate person, being a person who has such a physical or mental disability that he or she is unable to receive communications, or express his or her will, with respect to his or her property or affairs. plaintiff means a person by whom proceedings are commenced, or on whose behalf proceedings are commenced by a tutor, and includes a person by whom a cross-claim is made or on whose behalf a cross-claim is made by a tutor. possession, otherwise than of land, includes custody and power. trial means any hearing that is not an interlocutory hearing. tutor, in relation to a person under legal incapacity, means a tutor appointed to represent the person (whether by the court or otherwise) in accordance with the uniform rules. uniform rules means rules made, or taken to have been made, under section 9. Uniform Rules Committee means the Uniform Rules Committee established under section 8. workplace injury damages claim means a claim for an award of damages to which Division 3 of Part 5 of the Workers Compensation Act 1987 applies. Note— Other words and expressions (for example, rules of court) are defined in the Interpretation Act 1987. (2) Notes included in this Act do not form part of this Act. Note— In the notes to this Act, DCR means the District Court Rules 1973, LCR means the Local Courts (Civil Claims) Rules 1988 and SCR means the Supreme Court Rules 1970. 4 Application of Parts 3–10 (1) Subject to this section, Parts 3–9 apply to each court referred to in Schedule 1 in relation to civil proceedings of a kind referred to in that Schedule in respect of that court. (1A) Part 10 applies in relation to civil proceedings in the Supreme Court. (2) The uniform rules may exclude any class of civil proceedings from the operation of all or any of the provisions of Parts 3–9. (3) The Governor may, by regulation, amend or substitute Schedule 1. (4) The regulations may contain the following— (a) provisions excluding any class of civil proceedings from the operation of all or any of the provisions of Parts 3–9, and (b) provisions modifying any specified provision of Parts 3–9, or of any other Act or law, in its application to any class of civil proceedings. (5) Subject to any such regulation, this Act does not limit the operation of any other Act with respect to the conduct of civil proceedings. 5 Jurisdiction of courts (1) Nothing in this Act or the uniform rules limits the jurisdiction of the Supreme Court. (2) Nothing in the uniform rules extends the jurisdiction of any court except to the extent to which this Act expressly so provides. 6 Repeals, amendments and savings provisions (1) Each Act and instrument referred to in Schedule 4 is repealed. (2) (Repealed) (3) Schedule 6 has effect. 7 Review of Act (1) The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives. (2) The review is to be undertaken as soon as possible after the period of 5 years from the date of assent to this Act. (3) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years. Part 2 Administrative matters Division 1 Rules, practice notes and forms 8 Uniform Rules Committee (1) There is to be a Uniform Rules Committee comprising 12 members, of whom— (a) one is to be the Chief Justice of the Supreme Court or a Judge of the Supreme Court nominated for the time being by the Chief Justice, and (b) one is to be the President of the Court of Appeal or a Judge of Appeal nominated for the time being by the President, and (c) two are to be Judges of the Supreme Court appointed by the Chief Justice, and (c1) one is to be the Chief Judge of the Land and Environment Court or a Judge nominated for the time being by the Chief Judge, and (c2) one is to be the President of the Industrial Relations Commission or a judicial member of the Commission, within the meaning of the Industrial Relations Act 1996, nominated for the time being by the President, and (d) one is to be the Chief Judge of the District Court or a Judge of the District Court nominated for the time being by the Chief Judge, and (e) one is to be a Judge of the District Court appointed by the Chief Judge, and (f) one is to be the Chief Magistrate or a Magistrate nominated for the time being by the Chief Magistrate, and (g) one is to be a Magistrate appointed by the Chief Magistrate, and (h) one is to be a barrister appointed by the Bar Council, and (i) one is to be a solicitor appointed by the Law Society Council. (2) Schedule 2 has effect with respect to the constitution and procedure of the Uniform Rules Committee. 9 Uniform rules (1) The Uniform Rules Committee may make rules, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed by rules or that is necessary or convenient to be prescribed by rules for carrying out or giving effect to this Act. (2) Without limiting subsection (1), rules under this section may make provision, in relation to all civil proceedings in respect of which a court has jurisdiction (however arising), for or with respect to the matters specified in Schedule 3. (3) On the commencement of this section, the rules set out in Schedule 7 are taken to have been made under this section, and may be amended and repealed accordingly. (4) The rules made under this section may authorise or require the use of an electronic case management system established under clause 2 of Schedule 1 to the Electronic Transactions Act 2000 in relation to any proceedings in a court in respect of which the use of such a system is authorised by an order in force under clause 3 of Schedule 1 to that Act. (5) This section does not give power to make rules with respect to— (a) any matter relating to costs that is regulated by the legal profession legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014), or (b) any matter for which Admission Rules may be made under the Legal Profession Uniform Law (NSW). (6) This section does not limit the operation of section 78 of the Interpretation Act 1987. 10 Rules of court taken to include uniform rules (1) Rules of court are taken to include the uniform rules to the extent to which they are applicable in that court. (2) Subsection (1) does not authorise the person or body having power to make local rules to amend or repeal a uniform rule in its application to that court. 11 Relationship between uniform rules and local rules (1) The uniform rules prevail over any provision of any local rules unless the uniform rules expressly provide that the provision of the local rules is to prevail. (2) One rule prevails over another, as referred to in subsection (1), to the extent only of any inconsistency between them. 12 Officers of the court may exercise functions conferred by uniform rules Without limiting any other functions he or she may exercise, a registrar or other officer of any court may exercise any function conferred on such an officer by the uniform rules. 13 Officers of the court may be authorised to exercise court's functions (1) The senior judicial officer of any court may, by instrument in writing— (a) direct that any function of the court under this Act or any other Act or law in respect of which the court has jurisdiction (including any rules of court) may be exercised by such registrars or other officers of the court, and in such circumstances and subject to such conditions, as are specified in the instrument, and (b) vary or revoke any such instrument. (2) This section does not limit any provision of the Act by which the court is constituted with respect to the exercise of the court's functions. 14 Court may dispense with rules in particular cases In relation to particular civil proceedings, the court may, by order, dispense with any requirement of rules of court if satisfied that it is appropriate to do so in the circumstances of the case. 15 Practice notes (1) Subject to rules of court, the senior judicial officer of the court may issue practice notes for that court in relation to civil proceedings to which this Act applies. (2) A practice note must be published in the Gazette. (3) Sections 40 and 41 of the Interpretation Act 1987 apply to a practice note in the same way as they apply to a statutory rule. 16 Court may give directions in circumstances not covered by rules (1) In relation to particular civil proceedings, the court may give directions with respect to any aspect of practice or procedure for which rules of court or practice notes do not provide. (2) Anything done in accordance with such a direction (including the commencing of proceedings and the taking of any step in proceedings) is taken to have been validly done. 17 Forms (1) Subject to the uniform rules, the Uniform Rules Committee— (a) may approve forms for documents to be used in connection with civil proceedings, and (b) in the case of documents filed with a court, or issued by a court, by means of an ECM system within the meaning of the Electronic Transactions Act 2000, may approve the format in which such documents are to be filed or issued. (2) Copies of the approved forms are to be made available for public inspection at each registry of the court concerned and on the court's internet website. (3) If a form is approved in relation to a document to be used in connection with proceedings in a court, a document that is filed with or issued by the court is to be in that form. Note— See section 80 of the Interpretation Act 1987 with respect to compliance with approved forms. Division 2 Miscellaneous 18 Fees (1) The Governor may make regulations for or with respect to the following matters— (a) the fees payable to a court in relation to the conduct of civil proceedings in the court, including fees for the following— (i) the filing or registration of any document in the court, (ii) the allocation of hearing dates, (iii) the conduct of hearings, (iv) the retention of juries, (v) the sealing or other authentication of any document that has been filed in the court, (vi) the issue of any document out of the court, (b) the fees payable in relation to proceedings referred to mediation under Part 4, (c) the fees payable in relation to proceedings referred to arbitration under Part 5, (d) the fees payable in relation to the examination of a judgment debtor by a registrar or other officer of the court under Part 8, (e) the fees payable in relation to the functions of the following persons, whether under this Act or otherwise, including attempts to exercise the functions— (i) the Sheriff, (ii) the Marshal in Admiralty in relation to civil proceedings in the Admiralty List in the Equity Division of the Supreme Court, (f) the fees payable for the following services, including attempts to provide services, whether in connection with the administration of this Act or otherwise— (i) administrative services provided by a registrar or other officer of the court, (ii) other services provided in connection with civil proceedings, (g) the payment of fees under this Act, including— (i) the waiver, postponement or remission, in part or in whole, of the fees, and (ii) the persons to whom the fees are payable, and (iii) the time at which the fees become due, and (iv) the persons liable to pay the fees. (1A) A regulation made under subsection (1)(g)(i) may authorise a registrar of a court or the Sheriff to— (a) waive, postpone or remit fees payable to the court or the Sheriff, as relevant, and (b) impose conditions on the waiver, postponement or remission of the fees. (1B) A reference in subsection (1A) to a registrar is, in relation to the Supreme Court, a reference to— (a) the Principal Registrar of the Court, or (b) another registrar of the Court nominated by the Principal Registrar. (2) Fees of the kind referred to in subsection (1) (a) or (d) are not payable by the Crown, or by any person acting on behalf of the Crown, with respect to any civil proceedings to which any of the following persons or bodies is a party— (a) the Crown, (b) any Minister of the Crown, (c) any person or body prescribed by the regulations or belonging to a class of persons or bodies so prescribed. (3) Subsection (2) does not prevent the recovery by the Crown or any such person or body of any fees that would, had they been paid by the Crown or any such person or body, have been so recoverable. (4) Unpaid fees may be recovered by the person to whom they are payable, as a debt, in any court of competent jurisdiction. 18A Interest and dividends on money paid into court (1) A registrar of a court must— (a) deduct 2.5% from an amount received as interest or a dividend on funds paid into court, including a fund constituted by the Supreme Court under section 178 for the distribution of money to group members in representative proceedings, and (b) pay the deducted amount into the Consolidated Fund. (2) A reference in subsection (1) to a registrar is, in relation to the Supreme Court, a reference to— (a) the Principal Registrar of the Court, or (b) another registrar of the Court nominated by the Principal Registrar. Part 2A 18A–18O (Repealed) Part 3 Commencing and carrying on proceedings generally 19 Commencing and carrying on proceedings (cf Act No 9 1973, sections 53 and 56; Act No 11 1970, section 22) (1) Subject to this Act, proceedings are to be commenced and carried on in the manner prescribed by rules of court. (2) For the purposes of this Act and the uniform rules, carry on proceedings includes defend proceedings. 20 Claims for possession of land (cf Act No 52 1970, section 79) A claim for judgment for possession of land takes the place of a claim in an action for ejectment that could have been brought under the practice of the Supreme Court as it was immediately before 1 July 1972. Note— 1 July 1972 was the date of commencement of the Supreme Court Act 1970. 21 Defendant's 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. Note— The application of this provision to existing debts is dealt with in clause 6 of Schedule 6 (Savings, transitional and other provisions). 22 Defendant's right to cross-claim (cf Act No 52 1970, section 78; Act No 11 1970, section 15; DCR Part 20, rule 1) (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— (a) has the same rights in respect of his or her defence against the claim as he or she would have in separate proceedings commenced against the person by the defendant, and (b) if not already a party to the first proceedings— (i) becomes a party to the first proceedings, and (ii) unless the court otherwise orders, is bound by any judgment (including a judgment by consent or by default) or decision (including a decision by consent) on any claim for relief in the proceedings (including a claim for relief in any cross-claim in the proceedings). 23 Effect of abandoning excess claim (cf Act No 9 1973, section 50; Act No 11 1970, section 14) (1) If, in any proceedings on a claim, the cause of action giving rise to the claim is for more than the court's jurisdictional limit— (a) the person may abandon the excess by a statement to that effect in the originating process, and (b) in that event, the person's claim is taken to be reduced by the amount of the excess. (2) If a person's claim is successful in respect of a cause of action— (a) the amount recoverable by the person (exclusive of costs and interest) is not to exceed the court's jurisdictional limit, and (b) the judgment in the proceedings is in full discharge of all of the person's demands in respect of that cause of action, and (c) entry of the judgment in the records of the court is to be made accordingly. (3) This section is subject to section 51 of the District Court Act 1973 and section 31 of the Local Court Act 2007. Note— Under those sections, claims in the District Court or the Local Court for amounts in excess of the court's jurisdictional limit can, in some cases, be dealt with by consent of parties. 24 Effect of splitting cause of action (cf Act No 9 1973, section 49; Act No 11 1970, section 13) (1) If— (a) a person (the first person) splits any cause of action against another person (the other person) so as to commence proceedings, or make a cross-claim, for part only of the amount for which proceedings may be commenced on that cause, and (b) judgment is given or entered, or a final order is made, on the proceedings or cross-claim, the other person is entitled to judgment in any other proceedings, whether in that or any other court, with respect to the same cause of action. (2) Despite subsection (1), if the other person has given a number of securities in respect of a claim made by the first person, the first person— (a) may commence proceedings in any court in respect of each of those securities, or (b) may make a cross-claim in proceedings in any court in respect of each of those securities, as if each of those securities gave rise to a distinct cause of action, and may do so whether or not the claim made by the first person is for an amount that is more than the court's jurisdictional limit. Part 4 Mediation of proceedings 25 Definitions (cf Act No 52 1970, sections 110I and 110J; Act No 9 1973, sections 163 and 164; Act No 11 1970, sections 21J and 21K) In this Part— mediation means a structured negotiation process in which the mediator, as a neutral and independent party, assists the parties to a dispute to achieve their own resolution of the dispute. mediation session means a meeting arranged for the mediation of a matter. mediator means a person to whom the court has referred a matter for mediation. 26 Referral by court (cf Act No 52 1970, section 110K; Act No 9 1973, section 164A; Act No 11 1970, section 21L) (1) If it considers the circumstances appropriate, the court may, by order, refer any proceedings before it, or part of any such proceedings, for mediation by a mediator, and may do so either with or without the consent of the parties to the proceedings concerned. (2) The mediation is to be undertaken by a mediator agreed to by the parties or appointed by the court, who may (but need not be) a listed mediator. (2A) Without limiting subsections (1) and (2), the court may refer proceedings or part of proceedings for mediation under the Community Justice Centres Act 1983. (3) In this section, listed mediator means a mediator appointed in accordance with a practice note with respect to the nomination and appointment of persons to be mediators for the purposes of this Part. 27 Duty of parties to participate (cf Act No 52 1970, section 110L; Act No 9 1973, section 164B; Act No 11 1970, section 21M) It is the duty of each party to proceedings that have been referred for mediation to participate, in good faith, in the mediation. 28 Costs of mediation (cf Act No 52 1970, section 110M; Act No 9 1973, section 164C; Act No 11 1970, section 21N) The costs of mediation, including the costs payable to the mediator, are payable— (a) if the court makes an order as to the payment of those costs, by one or more of the parties in such manner as the order may specify, or (b) in any other case, by the parties in such proportions as they may agree among themselves. 29 Agreements and arrangements arising from mediation sessions (cf Act No 52 1970, section 110N; Act No 9 1973, section 164D; Act No 11 1970, section 21O) (1) The court may make orders to give effect to any agreement or arrangement arising out of a mediation session. (2) On any application for an order under this section, any party may call evidence, including evidence from the mediator and any other person engaged in the mediation, as to the fact that an agreement or arrangement has been reached and as to the substance of the agreement or arrangement. (3) This Part does not affect the enforceability of any other agreement or arrangement that may be made, whether or not arising out of a mediation session, in relation to the matters the subject of a mediation session. 30 Privilege (cf Act No 52 1970, section 110P; Act No 9 1973, section 164F; Act No 11 1970, section 21Q) (1) In this section, mediation session includes any steps taken in the course of making arrangements for the session or in the course of the follow-up of a session. (2) The same privilege with respect to defamation as exists with respect to judicial proceedings and a document produced in judicial proceedings exists with respect to— (a) a mediation session, or (b) a document or other material sent to or produced to a mediator, or sent to or produced at the court or the registry of the court, for the purpose of enabling a mediation session to be arranged. (3) The privilege conferred by subsection (2) extends only to a publication made— (a) at a mediation session, or (b) in a document or other material sent to or produced to a mediator, or sent to or produced at the court or the registry of the court, for the purpose of enabling a mediation session to be arranged, or (c) in circumstances referred to in section 31. (4) Subject to section 29 (2)— (a) evidence of anything said or of any admission made in a mediation session is not admissible in any proceedings before any court or other body, and (b) a document prepared for the purposes of, or in the course of, or as a result of, a mediation session, or any copy of such a document, is not admissible in evidence in any proceedings before any court or other body. (5) Subsection (4) does not apply with respect to any evidence or document— (a) if the persons in attendance at, or identified during, the mediation session and, in the case of a document, all persons specified in the document, consent to the admission of the evidence or document, or (b) in proceedings commenced with respect to any act or omission in connection with which a disclosure has been made as referred to in section 31 (c). 31 Confidentiality (cf Act No 52 1970, section 110Q; Act No 9 1973, section 164G; Act No 11 1970, section 21R) A mediator may disclose information obtained in connection with the administration or execution of this Part only in one or more of the following circumstances— (a) with the consent of the person from whom the information was obtained, (b) in connection with the administration or execution of this Part, including section 29 (2), (c) if there are reasonable grounds to believe that the disclosure is necessary to prevent or minimise the danger of injury to any person or damage to any property, (d) if the disclosure is reasonably required for the purpose of referring any party or parties to a mediation session to any person, agency, organisation or other body and the disclosure is made with the consent of the parties to the mediation session for the purpose of aiding in the resolution of a dispute between those parties or assisting the parties in any other manner, (e) in accordance with a requirement imposed by or under a law of the State (other than a requirement imposed by a subpoena or other compulsory process) or the Commonwealth. 32 Directions by mediator (cf SCR Part 72C, rule 3) Subject to the uniform rules and any relevant practice notes, a mediator may, by order, give directions as to the preparation for, and conduct of, the mediation. 33 Protection from liability for mediator A mediator to whom the court refers proceedings has, in the exercise of his or her functions as a mediator in relation to those proceedings, the same protection and immunity as a judicial officer of the court has in the exercise of his or her functions as a judicial officer. 34 Mediation otherwise than under this Part (cf Act No 52 1970, section 110H (2); Act No 9 1973, section 162 (2)) This Part does not prevent— (a) the parties to proceedings from agreeing to and arranging for mediation of any matter otherwise than as referred to in this Part, or (b) a matter arising in proceedings from being dealt with under the provisions of the Community Justice Centres Act 1983 without having been referred under section 26. Part 5 Arbitration of proceedings Division 1 Preliminary 35 Definitions (cf Act No 43 1983, section 3) In this Part— arbitrator means an arbitrator appointed under section 36. award means an arbitrator's award under section 39. referred proceedings means proceedings the subject of an unrevoked reference to an arbitrator under section 38. referring court, in relation to referred proceedings, means the court by which the proceedings have been referred. 36 Appointment to office as arbitrator (cf Act No 43 1983, section 5) (1) The senior judicial officer of the court may appoint suitable persons to be arbitrators to hear and determine referred proceedings. (2) A person is not eligible to be appointed as an arbitrator unless the person is a former judicial officer, a barrister nominated by the Bar Council or a solicitor nominated by the Law Society Council. (3) The senior judicial officer concerned may, and if the nominating body so requests in writing must, revoke an appointment under this section. (4) An appointment, or revocation of appointment, of an arbitrator is to be made by instrument in writing signed by the senior judicial officer. (5) An arbitrator may resign office by instrument in writing delivered to the senior judicial officer. (6) An arbitrator is entitled to such remuneration as the Minister may from time to time determine. (7) An arbitrator's remuneration is to be paid out of money provided by Parliament. 37 Jurisdiction of arbitrator (cf Act No 43 1983, section 7) (1) The jurisdiction conferred on an arbitrator by this Part in relation to referred proceedings is part of the jurisdiction of the court by which the proceedings were referred. (2) Subject to this Part, but without limiting the specific powers and authorities of an arbitrator under this Part, an arbitrator has and may exercise, in relation to referred proceedings, all of the functions of the court by which the proceedings were referred. (3) Subsection (2) does not confer on an arbitrator functions of the court which are the same as, or similar to, the functions conferred by sections 52 and 53 or any other functions in respect of contempt. (4) The functions conferred on an arbitrator may be exercised only— (a) for the purpose of determining the issues in dispute in referred proceedings, and (b) for the purpose of making an award in referred proceedings, and (c) for related purposes. (5) Subject to this Part, a tribunal (other than the arbitrator to whom proceedings have been referred for determination) has no jurisdiction in respect of any issue in dispute in the proceedings while those proceedings are before the arbitrator. (6) In subsection (5), tribunal means any court, tribunal, board or other body, or any person, empowered by an Act or by agreement of parties to determine by litigation, arbitration, conciliation or otherwise any issue that is in dispute. Division 2 Arbitration 38 Referral to arbitration (cf Act No 52 1970, section 76B; Act No 9 1973, section 63A; Act No 11 1970, section 21H) (1) The court may order that proceedings before it— (a) in respect of a claim for the recovery of damages or other money, or (b) in respect of a claim for any equitable or other relief ancillary to a claim for the recovery of damages or other money, be referred for determination by an arbitrator. (2) Before making such an order in relation to any proceedings, the referring court— (a) is to consider the preparations made by the parties for the hearing of the proceedings, and (b) is, as far as possible, to deal with all matters that may be dealt with by the court on application to the court before the hearing of the proceedings, and (c) is to give such directions for the conduct of the proceedings before the arbitrator as appear best adapted for the just, quick and cheap disposal of the proceedings. (3) The referring court may not make such an order in relation to any proceedings if— (a) no issue in the proceedings is contested or judgment in the proceedings has been given or entered and has not been set aside, or (b) rules of court provide that such an order may not be made in relation to proceedings of that kind, or (c) cause is otherwise shown why the proceedings should not be so referred. (4) At any time before the making of an award in relation to referred proceedings, the referring court may revoke an order under this section and give directions for the subsequent conduct of the proceedings and directions as to any costs incurred before the revocation of the order. (5) This section does not limit any other power of the court to refer a matter to arbitration. 39 Determination by arbitrator (cf Act No 43 1983, section 15) (1) The issues in dispute in referred proceedings are to be determined by the arbitrator on the evidence adduced before the arbitrator. (2) The arbitrator must record the arbitrator's determination of the proceedings, and the reasons for the determination, by an award in writing signed by the arbitrator. (3) The arbitrator must immediately send the award to the referring court. (4) An arbitrator may not make a determination that could not have been made had the proceedings been heard and determined by the referring court. (5) Despite subsection (4), an award does not fail to have full effect, and may not be called in question, by reason only that the amount awarded exceeds the amount claimed in the proceedings to which the award relates. 40 Award taken to be judgment of court (cf Act No 43 1983, section 16A; Act No 52 1970, section 76B (5); Act No 9 1973, section 63A (5); Act No 11 1970, section 21H (5)) Subject to section 41 and Division 3, an award is final and conclusive, and is taken to be a judgment of the referring court— (a) if it is expressed to be made by consent of all the parties, on the date on which it is received by the referring court, or (b) in any other case, at the expiry of 28 days after it is sent to all of the parties. 41 Judicial supervision of arbitrator (cf Act No 43 1983, section 17) (1) No relief lies— (a) under section 69 or 101 of the Supreme Court Act 1970, or (b) by way of declaratory judgment or order, or (c) by way of injunction, or (d) under section 126, 127 or 128 of the District Court Act 1973, or (e) under section 39 or 40 of the Local Court Act 2007, in relation to proceedings under this Act on referred proceedings. (2) Subsection (1) does not apply if the relief is sought on the ground of a lack of jurisdiction or a denial of natural justice. Division 3 Rehearings 42 Application for rehearing (cf Act No 43 1983, section 18) (1) A person aggrieved by an award may apply to the referring court for a rehearing of the proceedings concerned. (2) The application may (but need not) request that the rehearing be a full rehearing or limited rehearing. (3) The award is suspended from the time the application is made until an order for rehearing is made. 43 Order for rehearing (cf Act No 43 1983, section 18A) (1) The referring court must order a rehearing of proceedings the subject of an award if an application for rehearing is made before the award takes effect. (2) An order for rehearing may not be made unless the amount claimed in the proceedings, or the value of the property to which the proceedings relate, exceeds the jurisdictional limit of the Local Court when sitting in its Small Claims Division. (3) An order for rehearing need not be made if it appears to the court that the applicant failed to attend a hearing before an arbitrator without good reason. (4) In an order for rehearing, the referring court may direct that the rehearing be a full rehearing or a limited rehearing, as the court thinks appropriate, and may do so regardless of whether the applicant requested a full rehearing or a limited rehearing or made no such request. (5) In the absence of a direction under subsection (4), the rehearing is to be a full rehearing. (6) An order for a limited rehearing must specify the aspects that are to be the subject of the rehearing, whether by reference to specific issues in dispute, specific parties to the dispute or otherwise. (7) The referring court may amend an order for rehearing at any time before or during a rehearing. 44 Rehearing (cf Act No 43 1983, section 18B) (1) If an order is made for a full rehearing, the award ceases to have effect and the proceedings are to be heard and determined in the referring court as if they had never been referred to an arbitrator. (2) If an order is made for a limited rehearing— (a) the award is suspended from the time the order is made until the proceedings are determined, and (b) the aspects ordered to be dealt with at the limited rehearing are to be heard and determined in the court concerned as if they had not been dealt with in the arbitration, and (c) following the rehearing, the court may reinstate the award with such modifications (if any) as the court thinks appropriate, and (d) the award, as reinstated, is final and conclusive, and is taken to be a judgment of the referring court. (3) Subject to this Division, this Act and the uniform rules apply to proceedings on a rehearing in the same way as they apply to any other civil proceedings. 45 Discontinuance of rehearing (cf Act No 43 1983, section 18D) (1) A rehearing may be discontinued, but only with the consent of all parties or by leave of the court. (2) If a rehearing is discontinued, the court is to reinstate the award from which the rehearing has arisen. (3) An award that is reinstated under this section— (a) is final and conclusive, and (b) is taken to be a judgment of the referring court, and (c) unless the court otherwise orders, is taken to have had effect as such a judgment as from the date on which it would have taken effect under section 40 (b) had no application for a rehearing been made under this Division. Note— Under section 40 (b), the award would have taken effect at the expiry of 28 days after it was sent to all of the parties. 46 Costs of rehearing (cf Act No 43 1983, section 18C) (1) A court that hears and determines proceedings on a full rehearing— (a) may make an order for costs in respect of the rehearing, and (b) may, in addition, make an order for costs in respect of the hearing under Division 2. (2) A court that hears and determines any aspect of proceedings on a limited rehearing— (a) may make an order for costs in respect of the rehearing as to that aspect, and (b) may, in addition, make an order for costs in respect of the hearing as to that aspect under Division 2. (3) This section applies to proceedings in respect of which a rehearing is discontinued under section 45 in the same way as it applies to proceedings that are heard and determined on a rehearing. 47 Subpoena at rehearing against arbitrator (cf Act No 43 1983, section 18E) A subpoena for the giving of evidence or the production of documents at a rehearing is not to be issued against the arbitrator to whom the proceedings concerned were referred just because the evidence or documents relate to the arbitration. Division 4 Miscellaneous 48 Appearances (cf Act No 43 1983, section 8) A party to referred proceedings before an arbitrator has the same rights as to— (a) representation by a barrister or solicitor, or otherwise, and (b) examination and cross-examination of witnesses, as the party would have in relation to proceedings before the referring court. 49 Procedure (cf Act No 43 1983, section 10) (1) Subject to this Act and any directions given by the referring court, the procedure at an arbitration is to be determined by the arbitrator. (2) Subject to the rules of evidence, an arbitrator must act according to equity, good conscience and the substantial merits of the case without regard for technicalities or legal forms. 50 Issue of subpoenas (cf Act No 43 1983, section 11) A referring court has the same powers with respect to— (a) ordering persons to attend as witnesses at referred proceedings or to attend and produce documents at referred proceedings, and (b) enforcing compliance with any such orders, as it would have had in respect of the proceedings had they been heard and determined by the court. 51 Evidence (cf Act No 43 1983, section 13) (1) Subject to the uniform rules, evidence in referred proceedings before an arbitrator is to be given and received in the same way as it would be given and received before the referring court. (2) Subsection (1) does not require any such evidence to be recorded. (3) An arbitrator may administer an oath or take an affidavit for the purposes of referred proceedings. (4) Referred proceedings are taken to be judicial proceedings for the purposes of section 327 (Offence of perjury) of the Crimes Act 1900. 52 Refusal or failure to take oath etc (cf Act No 43 1983, section 12) (1) If, at any hearing of referred proceedings, a witness— (a) refuses or fails to take an oath when required by the arbitrator to do so, or (b) refuses or fails to answer a question that the witness is required by the arbitrator to answer, the arbitrator or a party to the proceedings may apply to the referring court for an order that the witness attend before the court for examination. (2) Unless satisfied that there was a reasonable excuse for the refusal or failure of the witness to take the oath or answer the question, the referring court must make the order applied for. (3) A court before which a witness attends and gives evidence pursuant to such an order may order the transmission to the arbitrator of the transcript of evidence. (4) Any such evidence is taken to have been given at the hearing before the arbitrator. (5) Failure to comply with an order under this section constitutes a contempt of the referring court, committed in the face of the court. 53 Contempt (cf Act No 43 1983, section 14) (1) A person must not— (a) wilfully insult an arbitrator while the arbitrator is hearing referred proceedings or proceeding to or from such a hearing, or (b) wilfully insult a person in attendance at such a hearing or proceeding to or from such a hearing, or (c) wilfully misbehave during the hearing of referred proceedings, or (d) wilfully and without lawful excuse interrupt the hearing of referred proceedings, or (e) assault or wilfully obstruct an arbitrator or other person during the hearing of referred proceedings, or (f) without lawful excuse, disobey a lawful direction given to the person by an arbitrator during the hearing of referred proceedings. (2) An arbitrator may direct a person who contravenes subsection (1) to leave the sitting of the arbitrator at which the contravention occurs and the person to whom the direction is given must immediately comply with the direction. (3) Failure to comply with such a direction constitutes a contempt of the referring court, committed in the face of the court. 54 Costs (cf Act No 43 1983, section 16) (1) An arbitrator may make orders with respect to the payment, as between the parties, of the costs of referred proceedings. (2) An arbitrator has the same powers in relation to an order for costs under subsection (1) as the referring court would have had if the hearing before the arbitrator had been a hearing before the court. (3) This section does not limit the power of the referring court to make orders under section 98 with respect to the costs of referred proceedings. 55 Protection from liability for arbitrator (cf Act No 43 1983, section 6) An arbitrator to whom the court refers proceedings has, in the exercise of his or her functions as an arbitrator in relation to those proceedings, the same protection and immunity as a judicial officer of the court has in the exercise of his or her functions as a judicial officer. Part 6 Case management and interlocutory matters Division 1 Guiding principles 56 Overriding purpose (cf SCR Part 1, rule 3) (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. (3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. (3A) (Repealed) (4) Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3)— (a) any solicitor or barrister representing the party in the proceedings, (b) any person with a relevant interest in the proceedings commenced by the party. (5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs. (6) For the purposes of this section, a person has a relevant interest in civil proceedings if the person— (a) provides financial assistance or other assistance to any party to the proceedings, and (b) exercises any direct or indirect control, or any influence, over the conduct of the proceedings or the conduct of a party in respect of the proceedings. Note— Examples of persons who may have a relevant interest are insurers and persons who fund litigation. (7) (Repealed) 57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects— (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1). 58 Court to follow dictates of justice (1) In deciding— (a) whether to make any order or direction for the management of proceedings, including— (i) any order for the amendment of a document, and (ii) any order granting an adjournment or stay of proceedings, and (iii) any other order of a procedural nature, and (iv) any direction under Division 2, and (b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice. (2) For the purpose of determining what are the dictates of justice in a particular case, the court— (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant— (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case. 59 Elimination of delay (cf Western Australia Supreme Court Rules, Order 1, rule 4A) In any proceedings, the practice and procedure of the court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial. 60 Proportionality of costs In any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute. Division 2 Powers of court to give directions 61 Directions as to practice and procedure generally (cf SCR Part 23, rule 4; Act No 9 1973, section 68A) (1) The court may, by order, give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings. (2) In particular, the court may, by order, do any one or more of the following— (a) it may direct any party to proceedings to take specified steps in relation to the proceedings, (b) it may direct the parties to proceedings as to the time within which specified steps in the proceedings must be completed, (c) it may give such other directions with respect to the conduct of proceedings as it considers appropriate. (3) If a party to whom such a direction has been given fails to comply with the direction, the court may, by order, do any one or more of the following— (a) it may dismiss the proceedings, whether generally, in relation to a particular cause of action or in relation to the whole or part of a particular claim, (b) it may strike out or limit any claim made by a plaintiff, (c) it may strike out any defence filed by a defendant, and give judgment accordingly, (d) it may strike out or amend any document filed by the party, either in whole or in part, (e) it may strike out, disallow or reject any evidence that the party has adduced or seeks to adduce, (f) it may direct the party to pay the whole or part of the costs of another party, (g) it may make such other order or give such other direction as it considers appropriate. (4) Subsection (3) does not limit any other power the court may have to take action of the kind referred to in that subsection or to take any other action that the court is empowered to take in relation to a failure to comply with a direction given by the court. 62 Directions as to conduct of hearing (cf Act No 52 1970, section 87; Act No 9 1973, section 77 (4); SCR Part 34, rules 6 and 6AA) (1) The court may, by order, give directions as to the conduct of any hearing, including directions as to the order in which evidence is to be given and addresses made. (2) The court may, by order, give directions as to the order in which questions of fact are to be tried. (3) Without limiting subsections (1) and (2), the court may, by order, give any of the following directions at any time before or during a hearing— (a) a direction limiting the time that may be taken in the examination, cross-examination or re-examination of a witness, (b) a direction limiting the number of witnesses (including expert witnesses) that a party may call, (c) a direction limiting the number of documents that a party may tender in evidence, (d) a direction limiting the time that may be taken in making any oral submissions, (e) a direction that all or any part of any submissions be in writing, (f) a direction limiting the time that may be taken by a party in presenting his or her case, (g) a direction limiting the time that may be taken by the hearing. (4) A direction under this section must not detract from the principle that each party is entitled to a fair hearing, and must be given a reasonable opportunity— (a) to lead evidence, and (b) to make submissions, and (c) to present a case, and (d) at trial, other than a trial before the Local Court sitting in its Small Claims Division, to cross-examine witnesses. (5) In deciding whether to make a direction under this section, the court may have regard to the following matters in addition to any other matters that the court considers relevant— (a) the subject-matter, and the complexity or simplicity, of the case, (b) the number of witnesses to be called, (c) the volume and character of the evidence to be led, (d) the need to place a reasonable limit on the time allowed for any hearing, (e) the efficient administration of the court lists, (f) the interests of parties to other proceedings before the court, (g) the costs that are likely to be incurred by the parties compared with the quantum of the subject-matter in dispute, (h) the court's estimate of the length of the hearing. (6) At any time, the court may, by order, direct a solicitor or barrister for a party to give to the party a memorandum stating— (a) the estimated length of the trial, and the estimated costs and disbursements of the solicitor or barrister, and (b) the estimated costs that, if the party were unsuccessful at trial, would be payable by the party to any other party. 63 Directions with respect to procedural irregularities (cf Act No 52 1970, section 81; Act No 9 1973, section 159; Act No 11 1970, section 75A) (1) This section applies to proceedings in connection with which there is, by reason of anything done or omitted to be done, a failure to comply with any requirement of this Act or of rules of court, whether in respect of time, place, manner, form or content or in any other respect. (2) Such a failure— (a) is to be treated as an irregularity, and (b) subject to subsection (3), does not invalidate the proceedings, any step taken in the proceedings or any document, judgment or order in the proceedings. (3) The court may do either or both of the following in respect of proceedings the subject of a failure referred to in subsection (1)— (a) it may, by order, set aside the proceedings, any step taken in the proceedings or any document, judgment or order in the proceedings, either wholly or in part, (b) it may exercise its powers to allow amendments and to make orders dealing with the proceedings generally. (4) The court may not take action of the kind referred to in subsection (3) (a) on the application of any party unless the application is made within a reasonable time and, in any case, before the party takes any fresh step in the proceedings after becoming aware of the failure. Division 3 Other powers of court 64 Amendment of documents generally (cf SCR Part 20, rules 1 and 4; DCR Part 17, rules 1 and 4) (1) At any stage of proceedings, the court may order— (a) that any document in the proceedings be amended, or (b) that leave be granted to a party to amend any document in the proceedings. (2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings. (3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made. (4) If there has been a mistake in the name of a party, this section applies to the person intended to be made a party as if he or she were a party. (5) This section does not apply to the amendment of a judgment, order or certificate. 65 Amendment of originating process after expiry of limitation period (cf SCR Part 20, rule 4; DCR Part 17, rule 4) (1) This section applies to any proceedings commenced before the expiration of any relevant limitation period for the commencement of the proceedings. (2) At any time after the expiration of the relevant limitation period, the plaintiff in any such proceedings may, with the leave of the court under section 64 (1) (b), amend the originating process so as— (a) to enable the plaintiff to maintain the proceedings in a capacity in which he or she has, since the proceedings were commenced, become entitled to bring and maintain the proceedings, or (b) to correct a mistake in the name of a party to the proceedings, whether or not the effect of the amendment is to substitute a new party, being a mistake that, in the court's opinion, is neither misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, or (c) to add or substitute a new cause of action, together with a claim for relief on the new cause of action, being a new cause of action that, in the court's opinion, arises from the same (or substantially the same) facts as those giving rise to an existing cause of action and claim for relief set out in the originating process. (3) Unless the court otherwise orders, an amendment made under this section is taken to have had effect as from the date on which the proceedings were commenced. (4) This section does not limit the powers of the court under section 64. (5) This section has effect despite anything to the contrary in the Limitation Act 1969. (6) In this section, originating process, in relation to any proceedings, includes any pleading subsequently filed in the proceedings. 66 Adjournment of proceedings (cf Act No 11 1970, section 75) (1) Subject to rules of court, the court may at any time and from time to time, by order, adjourn to a specified day any proceedings before it or any aspect of any such proceedings. (2) If a judicial officer is not available at the time appointed for the hearing of any proceedings, a registrar may adjourn, to a later time on the same day or to a later specified day, any matters listed for hearing by the judicial officer at the appointed time. 67 Stay of proceedings (cf Act No 9 1973, section 156) Subject to rules of court, the court may at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day. 68 Attendance at co