Conditional appearance (in the context of litigation)

Pursuant to rule 6.1 of the Uniform Civil Procedure Rules (UCPR), a party, without the leave of the Court, may not take any step in a proceeding unless that party has filed a statement of claim or summons in the proceedings or has entered an appearance in the proceedings.

The entry of an appearance is the usual first court process that a defendant’s solicitor will undertake after they have been engaged to represent a client who has been served with an originating process. An appearance is filed in the Court under rule 6.9 of the UCPR and has the effect of the defendant submitting to the jurisdiction of the Court.

However, in some circumstances a defendant may object to the jurisdiction or service of the originating process. In some jurisdictions in Australia (other than NSW) a defendant can enter a “conditional appearance”, whereby they can challenge the court’s jurisdiction of the matter, the validity of the originating process or its service (for example in Victoria see Supreme Court (General Civil Procedure) Rules 2015 rule 8.08). A party could therefore be able to appear on the basis that it did not submit to the jurisdiction of the court that the process was filed and proceedings could progress on that basis.

The introduction of the UCPR in New South Wales has settled this concept in New South Wales, where former authorities had referred to their existence. Rule 12.11 of the UCPR states that a party, within the time that is required to file an appearance (i.e. 28 days for statement of claim or the date of the return of a summons), it may make an application to the court by way of Notice of Motion to have the process set-aside. This application is based on jurisdiction or service of the originating process and does not constitute a submission to the jurisdiction of the Court.