Civil Trials Bench Book — Procedure generally

The calculation of time for the purposes of the Rules, or for the purpose of any judgment or order of the court, or any document in any proceedings, is governed by Pt 1, Div 2, rr 1.11–1.13, which are applicable in all courts.

If time of one day or longer is to be reckoned by reference to a given day or event, the given day or the given event is not to be counted: r 1.11(2). So that if something is ordered to be done within three days of Monday, the Monday is not counted and the thing must be done by midnight on Thursday.

If the period in question, being a period of five days or less, would include a day or a part of a day on which the registry is closed, that day is to be excluded: r 1.11(3). Part 18 r 18.4, which generally requires a notice of motion to be served at least three days before the date fixed for the motion, means that if the motion is fixed for hearing on Wednesday, the motion must be served by the previous Thursday, the three days being Friday, Monday and Tuesday, the registry being closed on the Saturday and Sunday. If the registry is closed on the Monday (for example, for a public holiday) the notice of motion must be served by the previous Wednesday.

If the last day for doing a thing is a day on which the registry is closed, the thing may be done on the next day on which the registry is open: r 1.11(4).

The rules override the reckoning of time provisions contained in the Interpretation Act 1988, s 36.

Subject to the UCPR, the court may, by order, extend or abridge any time fixed by the rules or by any judgment or order of the court. The court may extend time either before or after the time expires, even if the application for extension is made after the time has expired: r 1.12. The discretion conferred by UCPR r 1.12 is not in terms fettered, but a plaintiff seeking an extension of time must establish a proper or adequate reason for this being granted. Proof is required of a satisfactory explanation for the delay: Pell v Hodges [2007] NSWCA 234 at [30]. For further discussion of r 1.12, see Lachlan v HP Mercantile Pty Ltd [2015] NSWCA 130 at [22].

As to the extension of time for service of a Statement of Claim see Arthur Anderson Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104.

For a detailed discussion of the application of ss 56–60 of the CPA to an application for extension of time, see Richards v Cornford (No 3) [2010] NSWCA 134.

If no time is fixed by the rules or by judgment or order of the court for the doing of any thing in or in connection with any proceedings, the court may by order, fix the time within which the thing is to be done: r 1.13.

The former SCR Pt 2 r 5(1), which provided that time did not run from Christmas Day until the following 9 January has not been continued under the UCPR. The equivalent former DCR Pt 3 r 4 was repealed in 1991.

Accordingly, time continues to run.

The time limited for a defendant to enter an appearance is whichever is the later of 28 days after service where proceedings have been commenced by statement of claim or such other time as the court directs for the filing of a defence, or if the defendant makes an unsuccessful application to have the statement of claim set aside, 7 days after the refusal of the application: r 6.10. A defendant who files a defence in proceedings is taken to have entered an appearance in the proceedings: r 6.9.

In the case of proceedings in the Supreme Court, the Land and Environment Court, the Dust Diseases Tribunal or the Local Court, originating process is valid for service for 6 months after the date on which it is filed: r 6.2(4)(a).

In the case of proceedings in the District Court, the originating process is valid for one month after the date on which it is filed, unless it is a statement of claim seeking relief in relation only to a debt or other liquidated claim, or if the defendant (or at least one of the defendants) is to be served outside NSW, in which case it is valid for 6 months after the date on which it is filed: r 6.2(4).

Failure to serve originating process within the time limited by these rules does not prevent the plaintiff from commencing fresh proceedings by filing another originating process: r 6.2(5).

Legislation

Rules

Further reading

B Cairns, Australian civil procedure, 12th edn, Lawbook Co, 2020 at [2.1110]–[2.1130], [2.1080]–[2.1100]