Freezing Orders

Background

The Council of Chief Justices of Australia and New Zealand (Council) adopted the harmonised rules relating to freezing orders on 5 May 2006 (Harmonised Freezing Rules).  Freezing orders are also known as “Mareva Orders” or “Asset Preservation Orders”.  

The Harmonised Freezing Rules, in conjunction with the supplementary harmonised practice note and forms, balance the legitimate objects of freezing orders and the reasonable protection of respondents and third parties.

The Harmonised Freezing Rules cover the following topic areas regarding freezing orders:

  • Freezing orders
  • Ancillary orders
  • Orders against a person not a party to the proceeding
  • Orders against judgment debtor or prospective judgment debtor or third party
  • Jurisdiction
  • Service outside Australia of application for freezing order or ancillary order
  • Costs

Implementation of the Harmonised Freezing Rules

The Harmonised Freezing Rules have been adopted in similar form in all Australian jurisdictions, and by the High Court of New Zealand, as follows: 

Federal Court of Australia

(model harmonised rules)

Part 7, Division 7.4 of the Federal Court Rules 2011 (Cth)

 

New Zealand

Part 32 of the High Court Rules 2016 (NZ)

 

Australian Capital Territory

Subdivision 2.9.4.2, Court Procedure Rules 2006 (ACT)

New South Wales

Part 25, Division 2 of the Uniform Civil Procedure Rules 2005 (NSW)

 

Northern Territory

Regulation 37A of the Supreme Court Rules (NT) 

 

Queensland

Chapter 8, Part 2, Division 2 of the Uniform Civil Procedure Rules 1999 (Qld)

 

South Australia

 Chapter 10, Part 2, Division 5 of the Uniform Civil Rules 2020 (SA) 

 

Tasmania

Part 36, Division 1A of the Supreme Court Rules 2000 (TAS)

 

Victoria

Order 37A of the Supreme Court (General Civil Procedure) Rules 2015 (Vic)

 

Western Australia

Order 52A, Rules of the Supreme Court 1971 (WA) 

 

The Federal Circuit and Family Court of Australia (Division 1) has not adopted the harmonised freezing rules relating to freezing orders. Part 5.4, Division 5.4.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) deals with applications for Mareva Orders.


  
Harmonised Freezing Rules and Lower Courts

The Harmonised Freezing Rules have not been adopted in the lower courts of any jurisdiction.  However, the rules apply to the following select subordinate courts: 

  • The Uniform Civil Procedure Rules 2005 (NSW), including the Harmonised Freezing Rules in Part 25 Division 2, apply to the NSW District Court.  However, they do not apply to the NSW Local Court; and 
  • The Court Procedure Rules 2006 (ACT) expressly empower the ACT Magistrate’s Court to make freezing and ancillary orders in accordance with the Harmonised Freezing Rules: rr 741(2) and (6).

Practice Notes 

The harmonised practice note introduced in the Federal Court from 5 May 2006 has been adopted in substantially similar form in the following jurisdictions: 

Federal Court of Australia

(model harmonised practice note)

Federal Court Freezing Orders practice note GPN-FRZG 

 

Australian Capital Territory

Practice Note No 1 of 2008 - Freezing orders (also known as 'Mareva Orders' or 'asset preservation orders') 

 

New South Wales

Practice Note No. SC Gen 14 Supreme Court - Freezing Orders (also known as 'Mareva orders' or 'asset preservation orders')

 

Northern Territory

Practice Direction 5 of 2006 – Mareva Orders of the Supreme Court of the Northern Territory - Current Practice Directions  

 

Queensland

Practice Direction Number 1 of 2007, Supreme Court of Queensland, Freezing Orders (also known as 'Mareva Orders' or Asset Preservation Orders') 

 

South Australia

Schedule 3 of the Uniform Civil Rules 2020 (SA)

 

Tasmania

Practice Direction 3 of 2012 - Freezing Orders 

 

Victoria

SC GEN 17 Freezing Orders 

 

Western Australia

WASC Consolidated Practice Directions 2009, Practice Direction 9.6.1 - Order 52A - Freezing Orders

 

Section 128 Evidence Act 1995 (Cth) Amendments

Section 128A of the Evidence Act 1995 (Cth) provides that the privilege against self-incrimination applies to disclosure orders in civil proceedings in connection with a freezing or search order.

The High Court Rules 2016 (NZ) have been amended to include a power to make ancillary orders that is subject to the Court’s jurisdiction to decide an objection on the ground of the privilege against self-incrimination (rule 32.3(3)).