Application for re-hearing (Form 46B)

Section 110 of the Magistrates' Court Act 1989 lets a person against whom a final order was made in a civil proceeding they did not appear in apply for the order to be set aside and the proceeding re-heard. The court may set the order aside on terms and re-hear the case (s 110(2)). Under the Magistrates' Court General Civil Procedure Rules 2020, the application must be filed (r 46.08(1)), must say why the applicant did not appear at the hearing and, if applicable, why no notice of defence was given, and must be in Form 46B (r 46.09). It is usually filed with a sworn affidavit in support.

When you need it

• An order in default was made against you because you did not file a notice of defence.
• A final order was made at a hearing you did not attend.
• You want the case heard again from the start. For a challenge on a question of law, the court's guide says final orders can be appealed to the Supreme Court instead.

1. 1

   Fill in the heading

   Use the case number, venue, party names and addresses from the complaint, and your filing details.

2. 2

   Address it

   It is addressed to the registrar; add the name and address of each other party.

3. 3

   Describe the order

   Give the date of the order made in your absence, its terms and the amount of costs.

4. 4

   Give your reasons

   Explain why you did not appear at the hearing. If you did not file a notice of defence, explain why; otherwise delete that paragraph.

5. 5

   Address for service and signature

   Give your address for service and sign (or your Australian lawyer signs). Leave the filing and hearing details for the registrar, who will fill in where and when the application will be heard.

• File the original and two copies, with the affidavit in support, at the Magistrates' Court where the complaint was made. The court's guide says this can be done in person or by post, and a filing fee is payable - check the current fee schedule.
• If accepted, the court issues copies with a hearing date and location.
• Serve a copy of the application and any affidavit in support on the other party or parties at least 14 days before the hearing date, at the address for service in the complaint or notice of defence, unless the court orders otherwise (r 46.08(2)). The person who serves them completes an affidavit of service (Form 6A).
• Attend the hearing. If the application is struck out because you did not appear, you can re-apply only with the court's leave (s 110(5), r 46.08(3)).

• File promptly once you learn of the order, and explain any delay in your affidavit.
• If the order is set aside, the matter is re-heard and you may need to file a notice of defence, the court says. If the application fails, the order stands and you may be ordered to pay the other side's costs.
• A re-hearing application is not a substantive document under the Civil Procedure Act 2010, so it does not trigger the overarching obligations certification by itself.