Court Procedures Amendment Rules 2011 (No 2) (ACT)
Court Procedures Amendment Rules 2011 (No 2)
Subordinate Law SL2011-17
We, members of the rule-making committee, make the following rules of court under the Court Procedures Act 2004, section 7.
Dated 24 June 2011.
| T J Higgins | P Dingwall |
| Chief Justice | Acting Chief Magistrate |
| M F Gray | R Refshauge |
| President of the Court of Appeal | Judge |
Court Procedures Amendment Rules 2011 (No 2)
Subordinate Law SL2011-17
made under the
Court Procedures Act 2004
Contents
Page
Name of rules 1
Commencement 1
Legislation amended 1
Rule 4 (1), new note 3 1
Rule 22 (1), note 2 1
Rule 661 (3) 1
Rule 662 2
Rule 664 (2) 3
Rule 664 (4) 3
New division 2.14.1B 3
Rule 1722 (4), definition of prescribed percentage, paragraph (b) (iv) 4
Rule 2010A (8), definition of working day, paragraph (b) 5
Rule 3005 (2) (c) 5
New rule 3005 (2A) 5
Rule 3120 5
Rule 3150, definition of chief executive 6
Rule 3150, new definition of CYP director-general 6
Rule 3155 6
Rule 3156 (1) (b) (i) 6
Rule 3158 7
Rule 3159 7
Rule 3160 7
Rule 3171 (b) 7
Rule 3172 (2) 8
Rule 3180 (2) (b) 8
Rule 3201 (a) 8
Rule 3210 (2) (a) 8
Rule 3210 (2) (a) 8
Rule 3600, new definition of application for a costs assessment 9
Rule 3601, note 9
New division 3.11.3 9
Rule 4721 (2) (c) 11
Rule 4721 (3) (l), (m) and (n) and note 11
New rule 4721 (5) 13
New rule 4723 13
Table 5051, item 5 14
Rule 5102 (2) 14
Rule 6000 (1), note 2 14
New rule 6250 (3) (g) 14
Rule 6251 (2) (n) to (u) 15
Rule 6300 (1) 15
Rule 6303 (2) (d) 15
Schedule 3, table 3.1, new item 4A 15
Schedule 3, table 3.2, new item 4A 15
Schedule 4, part 4.2 16
Schedule 5, part 5.1, new item 71A 30
Dictionary, note 2 30
Dictionary, new definition of application for a costs assessment 30
Dictionary, definition of chief executive 30
Dictionary, definition of conference 30
Dictionary, definition of court, paragraph (b) 30
Dictionary, new definition of CYP director-general 30
Dictionary, definition of Magistrates Court Act 31
Dictionary, definition of order, paragraph (b) 31
Dictionary, definition of restoration order 31
Name of rules
These rules are the Court Procedures Amendment Rules 2011 (No 2).
Commencement
(1)Rules 12, 41 and 47 commence on the commencement of the Statute Law Amendment Act 2011 (No 2).
NoteThe naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).
(2)The remaining rules commence on 1 July 2011.
Legislation amended
These rules amend the Court Procedures Rules 2006.
Rule 4 (1), new note 3
insert
Note 3Pt 5.3 (Appeals to Supreme Court) applies to appeals under the Domestic Violence and Protection Orders Act 2001 and the Domestic Violence and Protection Orders Act 2008 (see r 5051 (Application—pt 5.3)).
Rule 22 (1), note 2
substitute
Note 2The Magistrates Court includes the Childrens Court (see Magistrates Court Act 1930, s 287).
Rule 661 (3)
omit
not later than 2 days after the day
substitute
before
Rule 662
substitute
Notice for non-party production—inspection by other parties
(1)The respondent to a notice for non-party production issued in a proceeding must produce any document stated in the notice by delivering the document to the party to the proceeding stated in the notice (the receiving party) within—
(a)14 days after the notice is served on the respondent; or
(b)if a longer time is stated in the notice—the longer time.
(2)The receiving party must within 14 days after the document is delivered to the receiving party—
(a)if there is another active party to the proceeding other than the applicant for the notice—deliver the document to the other party; or
(b)in any other case—deliver the document to the applicant for the notice.
(3)If a document is delivered to another active party under subrule (2) (a), the other party must within 14 days after the document is delivered to the party—
(a)if there is another active party to the proceeding, other than the applicant for the notice, that the document has not been delivered to—deliver the document to the other party; or
(b)in any other case—deliver the document to the applicant for the notice.
(4)For the purpose of deciding whether to make a claim mentioned in rule 664 (1) (a) (which deals with claims for privilege), any party to the proceeding on whom a copy of the notice for non-party production is served is entitled to inspect a document stated in the notice other than a document in relation to which any other party makes such a claim.
Rule 664 (2)
omit everything before paragraph (a), substitute
(2)The person objecting must give notice of the objection to the applicant for the notice and, if required by the applicant, file an affidavit, and serve a stamped copy on the applicant, stating—
Rule 664 (4)
substitute
(4)The person objecting need not produce the document and the applicant for the notice, the respondent or another party to the proceeding may apply to the court for orders in relation to the claim or objection.
New division 2.14.1B
insert
Division 2.14.1B Removal of applications from ACAT to Supreme Court
Removal of applications from ACAT to Supreme Court—application
This division applies if—
(a)an application is made to the ACAT; and
(b)the ACAT orders that the application be removed to the Supreme Court under the ACT Civil and Administrative Tribunal Act 2008, section 83.
Removal of applications from ACAT to Supreme Court—procedure
(1)The ACAT must, within 14 days after the order is made, file in the Supreme Court a copy of—
(a)the application; and
(b)the order removing the application to the court.
(2)When the documents mentioned in subrule (1) are filed—
(a)the court must set a date for a directions hearing; and
(b)the registrar must tell the parties the date set for the directions hearing.
(3)The application is taken to be an originating application started in the Supreme Court on the day the application was started in the ACAT.
(4)The respondent to the application must file a notice of intention to respond within 14 days after the ACAT orders the removal.
Rule 1722 (4), definition of prescribed percentage, paragraph (b) (iv)
substitute
(iv)if the relevant amount is not less than $40 000 but less than $50 000—90%; or
(v)if the relevant amount is not less than $50 000—100%.
Rule 2010A (8), definition of working day, paragraph (b)
substitute
(b)a public holiday or bank holiday.
Rule 3005 (2) (c)
substitute
(c)for an application for grant of probate or letters of administration with the will annexed—
(i)if the application is made by the public trustee—the original will, or a copy of the original will kept in electronic form certified by the public trustee, signed in the margin by the applicant and the person before whom the supporting affidavit is taken; or
(ii)in any other case—the original will, signed in the margin by the applicant and the person before whom the supporting affidavit is taken; and
New rule 3005 (2A)
insert
(2A)If a copy of an original will kept in electronic form, certified by the public trustee, accompanies the application, the public trustee must, if the court directs, produce the original will to the court.
Rule 3120
substitute
Proved wills to be kept by court
The court must keep—
(a)the original of any will filed in the court; and
(b)if the public trustee files a certified copy of an original will kept in electronic form—the certified copy.
Note 1Rule 2901 (Copies of documents from registrar) deals with obtaining copies of documents (including wills) filed in a proceeding.
Note 2Rule 2903 (Inspection of registry files) deals with the inspection of registry files.
Rule 3150, definition of chief executive
omit
Rule 3150, new definition of CYP director-general
insert
CYP director-general means the director-general responsible for the Children and Young People Act 2008.
Rule 3155
omit
chief executive
substitute
CYP director-general
Rule 3156 (1) (b) (i)
substitute
(i)the CYP director-general; or
Rule 3158
omit
chief executive
substitute
CYP director-general
Rule 3159
omit
chief executive
substitute
CYP director-general
Rule 3160
omit
chief executive
substitute
CYP director-general
Rule 3171 (b)
omit
chief executive
substitute
CYP director-general
Rule 3172 (2)
omit
chief executive
substitute
CYP director-general
Rule 3180 (2) (b)
omit
chief executive
substitute
CYP director-general
Rule 3201 (a)
substitute
(a)the CYP director-general; and
Rule 3210 (2) (a)
omit
chief executive
substitute
CYP director-general
Rule 3210 (2) (a)
omit
chief executive’s
substitute
CYP director-general’s
Rule 3600, new definition of application for a costs assessment
insert
application for a costs assessment means an application for costs assessment under the Legal Profession Act, division 3.2.7.
Rule 3601, note
insert
· costs assessment (see s 261)
· law practice
New division 3.11.3
insert
Division 3.11.3 Assessment of client costs
Application—div 3.11.3
This division applies to an application for a costs assessment.
Form of application
(1)An application for a costs assessment must be made by originating application.
NoteSee approved form 3.47 (Originating application for assessment of legal costs) AF2011-66.
(2)The application must be supported by—
(a)if the legal costs are subject to a costs agreement—a copy of the agreement; and
(b)if the legal costs are subject to a retainer—a copy of the retainer; and
(c)if the application is made under the Legal Profession Act, section 296—
(i)an affidavit by the applicant stating the matters set out in that Act, section 300 (2); and
(ii)a sufficient description of the work to which the legal costs relate to enable the legal costs to be assessed.
(3)The applicant must file with the application 2 copies of the application and supporting documents.
Application for leave to apply out of time
An application for leave to apply for a costs assessment out of time must be in accordance with part 6.2 (Applications in proceedings).
Directions
(1)On the filing of an application, the registrar must—
(a)set a date for directions before the registrar; and
(b)tell the parties the date.
(2)At the directions hearing, the registrar must set a time and date for the assessment of the legal costs.
Response to application
(1)This rule applies if the respondent to an application is a law practice.
(2)The respondent must file—
(a)an affidavit stating the matters set out in the Legal Profession Act, section 300 (2); and
(b)a sufficient description of the work to which the legal costs relate to enable the legal costs to be assessed; and
(c)if the legal costs are subject to a costs agreement—a copy of the costs agreement if the applicant has not filed a copy of the agreement; and
(d)if the legal costs are subject to a retainer—a copy of the retainer if the applicant has not filed a copy of the retainer.
Notice of objections to legal costs
(1)The party liable to pay the legal costs may by notice object to all or part of the legal costs.
(2)A notice of objections must briefly state the reasons for the objection identifying any issue of law or fact that the objector considers the registrar must consider to make a decision in favour of the objector.
(3)The party liable to pay the legal costs must file the notice of objections and serve a stamped copy on the other party not later than 14 days before the day the legal costs are to be assessed.
Rule 4721 (2) (c)
omit
Rule 4721 (3) (l), (m) and (n) and note
substitute
(l)if a court has made a decision in relation to an application for bail by the accused person and the application is a further application for bail—
(i)for each previous application for bail—
(A)the name of the judge or magistrate who heard the application; and
(B)the date the application was made; and
(ii)either—
(A)the change in circumstances relevant to the granting of bail since the last application for bail was made; or
(B)the fresh evidence or information of relevance to the granting of bail that was unavailable when the last application for bail was made; and
NoteSee the Bail Act 1992, s 20C (Repeat application for bail—Supreme Court).
(m)if the application is for review of a decision of an authorised officer in relation to bail—
(i)the change in circumstances relevant to the granting of bail since the officer’s decision was made; or
(ii)the fresh evidence or information of relevance to the granting of bail that was unavailable when the officer’s decision was made; and
NoteSee the Bail Act 1992, s 43 (Power of Supreme Court to review—decision of authorised officer).
(n)if the application is for review of a decision of a court in relation to bail—
(i)for each previous application for bail—
(A)the name of the judge or magistrate who heard the application; and
(B)the date the application was made; and
(ii)either—
(A)a change in circumstances relevant to the granting of bail since the court’s decision was made; or
(B)the fresh evidence or information of relevance to the granting of bail that was unavailable when the last application for bail was made; and
NoteSee the Bail Act 1992, s 43A (Power of Supreme Court to review—decision of Magistrates Court or Supreme Court).
(o)the conditions (if any) on which bail is sought.
New rule 4721 (5)
insert
(5)This rule is subject to rule 4723 (Supreme Court application for review of bail by unrepresented accused person).
New rule 4723
in division 4.3.3, insert
Supreme Court application for bail by unrepresented accused person
(1)This rule applies if—
(a)an accused person is unrepresented; and
(b)the person applies for review of bail under the Bail Act 1992, section 20B (Power in relation to bail—Supreme Court), section 43 (Power of Supreme Court to review—decision of authorised officer) or section 43A (Power of Supreme Court to review—decision of Magistrates Court or Supreme Court).
(2)The accused person may apply for bail using a short form of application.
Note 1Pt 6.2 (Applications in proceedings) also applies to an application under this rule.
Note 2See approved form 4.9 (Supreme Court application for bail by unrepresented accused person) AF2011-64.
(3)The accused person must serve a stamped copy of the application on the director of public prosecutions.
Table 5051, item 5
substitute
| 5 | Magistrates Court | judge or master | Domestic Violence and Protection Orders Act 2001, s 79 Domestic Violence and Protection Orders Act 2008, s 97 Health Records (Privacy and Access) Act 1997, s 32 (1) Leases (Commercial and Retail) Act 2001, s 155 Magistrates Court Act 1930, s 274 Victims of Crime (Financial Assistance) Act 1983, s 61 |
Rule 5102 (2)
substitute
(2)If the order appealed from is an order of a tribunal other than the ACAT, the tribunal must be included as a respondent to the appeal.
Rule 6000 (1), note 2
substitute
Note 2The Magistrates Court includes the Childrens Court (see Magistrates Court Act 1930, s 287)
New rule 6250 (3) (g)
before the note, insert
(g)under the Supreme Court Act 1933, section 55A (Hearing of bail applications).
Rule 6251 (2) (n) to (u)
omit
Rule 6300 (1)
omit
in the ACT under the Holidays Act 1958
Rule 6303 (2) (d)
omit
Schedule 3, table 3.1, new item 4A
insert
| 4A | Magistrates Court—not less than $50 000 but less than $250 000 | 1 000.00 |
Schedule 3, table 3.2, new item 4A
insert
| 4A | Magistrates Court—not less than $50 000 but less than $250 000 | 1 500.00 |
Schedule 4, part 4.2
substitute
Part 4.2Scale of costs—items
| column 1 item | column 2 matter in relation to which charge is made | column 3 charge ($) | |
| Division 4.2.1 Instructions | |||
| 1 | to sue or defend, to appeal or oppose an appeal | 158.20 | |
| 2 | for statement of claim, petition, special case or counterclaim | 158.20 | |
| 3 | for defence | 135.40 | |
| 4 | for— (a) a reply; or (b) amending a pleading; or (c) a notice claiming contribution or indemnity; or (d) a document to be brought into the registrar’s office (for example, an account or deed); or (e) adding parties by order; or (f) a bond or other deed; or (g) retaining counsel, including preparing retainer | 56.50 | |
| 5 | for— (a) a pleading not otherwise provided for; or (b) interrogatories for the examination of a party or witness; or (c) an affidavit in answer to interrogatories or other special affidavit; or (d) disclosure or a list of documents; or (e) an application for an order that a matter be heard before the Full Court; or (f) a brief on application in chambers | 112.90 | |
| 6 | for— (a) an application whether in court, before the registrar or in chambers; or (b) opposition to an application; or (c) the assessment of a bill of costs | 112.90 | |
| 7 | for brief to advise on evidence | 101.70 | |
| 8 | for— (a) a statement of facts in an action; or (b) a request for particulars; or (c) particulars | 112.90 | |
| 9 | for brief in preparation for trial | the amount the registrar considers appropriate | |
| Division 4.2.2 Drawing | |||
| 10 | for an originating process or counterclaim | 118.00 | or, if longer than 700 words, 16.70 per 100 words |
| 11 | for any other pleading, a notice claiming contribution or indemnity, or an amendment of a pleading | 79.10 | or, if longer than 400 words, 16.70 per 100 words |
| 12 | for— (a) a notice of an application in a proceeding; or (b) a notice to produce documents; or (c) a notice to admit facts; or (d) a special case; or (e) interrogatories; or (f) a special affidavit; or (g) a brief (including observations) | 72.40 | or, if the document is longer than 400 words, 16.70 per 100 words |
| 13 | a formal affidavit, including an affidavit of service | 39.70 | |
| 14 | any other document | 31.30 | or, if longer than 100 words, 18.60 per 100 words |
| Division 4.2.3 Engrossing | |||
| 15 | of a document | 4.90 | per 100 words |
| Division 4.2.4 Copies | |||
| 16 | of any document, or of multiple documents copied at the same time— | ||
| (a) for each of the first 10 copies; or | 3.10 | per page | |
| (b) for each additional copy up to 100 copies; or | 1.40 | per page | |
| (c) for each additional copy over 100 copies | 0.50 | per page | |
| Division 4.2.5 Perusal | |||
| 17 | of— (a) an originating process; or (b) a pleading; or (c) an application in a proceeding; or (d) interrogatories; or (e) a special case; or (f) a notice to admit | 55.70 | or, if the document is longer than 800 words, 6.30 per 100 words |
| 18 | of any other document, if it is necessary to peruse | 6.30 | per 100 words |
| 19 | of a document by scanning it, if it is not necessary to peruse | 6.20 | or, if the document has more than 10 pages, the additional amount the registrar considers appropriate |
| Division 4.2.6 Attendances | |||
| 20 | for personal service, if necessary, of 1 or more documents at the same time | 84.50 | |
| 21 | for service of 1 or more documents at the same time— (a) at the office of a solicitor on the record or the address for service of a party; or (b) by post; or (c) made through a document exchange | 34.10 | |
| 22 | by a solicitor, necessarily or properly engaged, if the solicitor holds an unrestricted practising certificate or has been the holder of a practising certificate for at least 2 years— (a) to instruct counsel; or (b) on assessment of a bill of costs or other matter; or (c) at conference with counsel; or (d) on a view; or (e) on witness or other person; or (f) to produce a document; or (g) to inspect a document, if the registrar is satisfied there were appropriate and sufficient reasons for the inspection; or (h) to prepare appeal papers | 225.80 | per hour |
| 23 | by a solicitor, necessarily or properly engaged, other than a solicitor mentioned in item 22— (a) to instruct counsel; or (b) on assessment of a bill of costs or other matter; or (c) at conference with counsel; or (d) on a view; or (e) on witness or other person; or (f) to produce a document; or (g) to inspect a document, if the registrar is satisfied there were appropriate and sufficient reasons for the inspection; or (h) to prepare appeal papers | 158.20 | per hour |
| 24 | by a clerk, necessarily or properly engaged— (a) to instruct counsel; or (b) on assessment of a bill of costs or other matter; or (c) at conference with counsel; or (d) on a view; or (e) on witness or other person; or (f) to produce a document; or (g) to inspect a document, if the registrar is satisfied there were appropriate and sufficient reasons for the inspection; or (h) to prepare appeal papers | 79.00 | per hour |
| 25 | other than an attendance already mentioned, in court or any hearing without counsel— | ||
| (a) by a solicitor holding an unrestricted practising certificate, or a solicitor who has been the holder of a practising certificate for at least 2 years; or | 338.60 | per hour | |
| (b) by any other solicitor | 237.10 | per hour | |
| 26 | by a solicitor involving a high degree of skill and responsibility | 338.60 | per hour |
| 27 | in court or chambers or before the registrar— (a) to take a reserved judgment; or (b) to mention a matter; or (c) for an adjournment; or (d) for settling the terms of and entering orders; or (e) for another reason | 90.30 | or 225.80 per hour |
| 28 | at the registry or other office or place for— (a) filing, delivering, or collecting a document; or (b) a purpose not involving the exercise of legal skill or knowledge | 28.00 | |
| 29 | formal telephone attendance | 28.00 | |
| 30 | telephone attendance leaving message only | 14.00 | |
| 31 | any other attendance by a solicitor (including travelling and waiting time and including a telephone attendance) | 45.20 | or 56.50 per quarter hour |
| 32 | any other attendance by a clerk (including travelling and waiting time and including a telephone attendance) | 28.00 | or 19.70 per quarter hour |
| 33 | if the registrar is satisfied, in relation to travel, that the purpose of the journey could not have been satisfactorily accomplished by an agent and that— | ||
| (a) a solicitor has been necessarily absent from the place where the solicitor carries on practice; or | an allowance (in addition to reasonable travelling expenses), for each day (other than Saturdays and Sundays) that the solicitor is absent, of not more than 1 318.20 | ||
| (b) a clerk has attended in place of the solicitor | an allowance (in addition to reasonable travelling expenses), for each day (other than Saturdays and Sundays) that the clerk is absent, of not more than 338.60 | ||
| Division 4.2.7 Letters | |||
| 34 | ordinary letter | 39.20 | or 19.10 per 100 words |
| 35 | special letter | 65.10 | or 19.10 per 100 words |
| 36 | formal letter—short letter, without legal content | 19.00 | |
| 37 | circular letters after the first | 8.60 | |
| 38 | fax copy or telex, including attendance to send | 44.50 | |
| 39 | receiving and filing any incoming letter, other than a letter received by email (postage and transmission fees properly incurred may be claimed as a disbursement) | 11.80 | |
| 40 | receiving, printing and filing incoming letter received by email | 12.70 | |
| 41 | printing any attachment to an email, or multiple attachments to an email printed at the same time— | ||
| (a) for each of the first 10 pages; or | 3.10 | per page | |
| (b) for each additional page up to 100 copies; or | 1.40 | per page | |
| (c) for each additional page over 100 copies | 0.50 | per page | |
| Division 4.2.8 Witness expenses | |||
| 42 | a witness called because of the witness’s professional, scientific or other special skill or knowledge | 1 107.50 | per day |
| 43 | a witness called other than because of the witness’s professional, scientific or other special skill or knowledge | 116.90 | per day |
| 44 | a witness paid in the witness’s occupation by wages, salary or fees | the amount lost by attendance at court | |
| 45 | a witness qualifying to give skilled evidence | the additional amount the registrar considers reasonable and properly incurred and paid | |
| 46 | if the witness lives more than 50km from the court | the additional amount the registrar considers reasonable for the actual cost of travel, and for accommodation and meals | |
| 47 | attendance at court by a witness acting as an expert in assisting counsel or a solicitor for a period during the trial or hearing | the amount the registrar considers appropriate (but not affecting the existing practice of allowing qualifying fees for witnesses) | |
| Division 4.2.9 Disbursements | |||
| 48 | all court fees, counsel’s fees and other fees and payments | allowed to the extent that they have been properly and reasonably incurred and paid | |
Schedule 5, part 5.1, new item 71A
insert
| 71A | 4723 | Supreme Court application for review of bail by unrepresented accused person |
Dictionary, note 2
insert
·bank holiday
·public holiday
Dictionary, new definition of application for a costs assessment
insert
application for a costs assessment, for part 3.11 (Legal profession)—see rule 3600.
Dictionary, definition of chief executive
omit
Dictionary, definition of conference
omit
Dictionary, definition of court, paragraph (b)
omit
Dictionary, new definition of CYP director-general
insert
CYP director-general, for part 3.2 (Adoption)—see rule 3150.
Dictionary, definition of Magistrates Court Act
omit
Dictionary, definition of order, paragraph (b)
omit
Dictionary, definition of restoration order
omit
Endnotes
Notification
Notified under the Legislation Act on 30 June 2011.
Republications of amended laws
For the latest republication of amended laws, see align="center">© Australian Capital Territory 2011
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