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)
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New Zealand | Part 32 of the High Court Rules 2016 (NZ)
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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)
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Northern Territory | Regulation 37A of the Supreme Court Rules (NT)
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Queensland | Chapter 8, Part 2, Division 2 of the Uniform Civil Procedure Rules 1999 (Qld)
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South Australia | Chapter 10, Part 2, Division 5 of the Uniform Civil Rules 2020 (SA)
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Tasmania | Part 36, Division 1A of the Supreme Court Rules 2000 (TAS)
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Victoria | Order 37A of the Supreme Court (General Civil Procedure) Rules 2015 (Vic)
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Western Australia | Order 52A, Rules of the Supreme Court 1971 (WA)
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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
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Australian Capital Territory |
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New South Wales |
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Northern Territory |
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Queensland |
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South Australia | Schedule 3 of the Uniform Civil Rules 2020 (SA)
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Tasmania | Practice Direction 3 of 2012 - Freezing Orders
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Victoria |
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Western Australia | WASC Consolidated Practice Directions 2009, Practice Direction 9.6.1 - Order 52A - Freezing Orders
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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)).