Civil Procedure Act 2005

This Act is the Civil Procedure Act 2005.

This Act commences on a day or days to be appointed by proclamation, subject to this section.

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.

Schedule 5.3 [4] commences on the commencement of section 9.

Schedule 5.43 and 5.44 commence on the commencement of section 18.

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.

In this Act—

civil proceedings means any proceedings other than criminal proceedings.

claim for relief includes—

a claim for possession of land, and

a claim for delivery of goods, and

a claim for the recovery of damages or other money, and

a claim for a declaration of right, and

a claim for the determination of any question or matter that may be determined by the court, and

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—

committal proceedings,

proceedings relating to bail,

proceedings relating to sentence,

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—

any amount payable under a judgment, and

any interest after judgment that is payable on that amount under section 101, and

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—

in relation to the District Court, the jurisdictional limit of that Court within the meaning of the District Court Act 1973, and

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

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 a 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 child under the age of 18 years, and

an involuntary patient, a forensic patient or a correctional patient within the meaning of the Mental Health Act 2007, and

a person under guardianship within the meaning of the Guardianship Act 1987, and

a protected person within the meaning of the NSW Trustee and Guardian Act 2009, and

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.

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.

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.

Part 10 applies in relation to civil proceedings in the Supreme Court.

The uniform rules may exclude any class of civil proceedings from the operation of all or any of the provisions of Parts 3–9.

The Governor may, by regulation, amend or substitute Schedule 1.

The regulations may contain the following—

provisions excluding any class of civil proceedings from the operation of all or any of the provisions of Parts 3–9, and

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.

Subject to any such regulation, this Act does not limit the operation of any other Act with respect to the conduct of civil proceedings.

Nothing in this Act or the uniform rules limits the jurisdiction of the Supreme Court.

Nothing in the uniform rules extends the jurisdiction of any court except to the extent to which this Act expressly so provides.

Each Act and instrument referred to in Schedule 4 is repealed.

(Repealed)

Schedule 6 has effect.

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.

The review is to be undertaken as soon as possible after the period of 5 years from the date of assent to this Act.

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.

There is to be a Uniform Rules Committee comprising 12 members, of whom—

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

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

two are to be Judges of the Supreme Court appointed by the Chief Justice, and

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

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

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

one is to be a Judge of the District Court appointed by the Chief Judge, and

one is to be—

the Chief Judge of the Local Court, or

a Judge of the Local Court nominated for the time being by the Chief Judge, and

one is to be a Judge of the Local Court appointed by the Chief Judge of the Local Court, and

one is to be a barrister appointed by the Bar Council, and

one is to be a solicitor appointed by the Law Society Council.

Schedule 2 has effect with respect to the constitution and procedure of the Uniform Rules Committee.

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.

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.

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.

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.

This section does not give power to make rules with respect to—

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

any matter for which Admission Rules may be made under the Legal Profession Uniform Law (NSW).

This section does not limit the operation of section 78 of the Interpretation Act 1987.

Rules of court are taken to include the uniform rules to the extent to which they are applicable in that court.

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.

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.

One rule prevails over another, as referred to in subsection (1), to the extent only of any inconsistency between them.

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.