High Court of Australia Rules of Court (Amendment) (Cth)

STATUTORY RULES.

1910. No. 130.

HIGH COURT OF AUSTRALIA.

RULES OF COURT.

As of Friday, the 9th day of December, A.D., 1910.

It is ordered as follows:—

1. The following Rules shall stand as Orders IIa., XIa., and XIb. of the Rules of Court in the Schedule to the High Court Procedure Act 1903:—

ORDER IIa.

Proceedings by and against Paupers.

Suing or defending as pauper.

1. Any person may be allowed by the Court or a Justice to sue or defend in any cause or matter as a pauper on proof that he is not worth £25, his wearing apparel and the subject-matter of the cause or matter, if any, only excepted.

Case to be laid before counsel.

2. A person desirous of suing as a pauper shall lay a case before a practitioner of the High Court for his opinion whether or not he has reasonable grounds for proceeding.

Affidavit by party or solicitor that case is true.

3. A person shall not be permitted to sue as a pauper unless the case laid before counsel for his opinion, and his opinion thereon, with an affidavit of the party or his solicitor, stating that the case contains a full and true statement of all the material facts to the best of his knowledge and belief, and referring to the case as an exhibit, are produced before the Court or Justice to whom the application is made.

No Court fees payable.

4. A person admitted to sue or defend as a pauper shall not be liable to any Court fees.

Counsel and solicitor may be assigned.

5. When a person is admitted to sue or defend as a pauper, the Court or a Justice may, if necessary, assign a barrister or solicitor, or both, to assist him; and a barrister or solicitor so assigned shall not be at liberty to refuse his assistance unless he satisfies the Court or a Justice that he has some good reason for refusing.

Default in proceeding by pauper.

6. When a person who has been admitted to sue as a pauper neglects to proceed with the cause or matter he may be ordered to pay costs, although he has not been dispaupered; and all further proceedings in the cause or matter may be stayed until payment of any costs so ordered to be paid by him.

Notices, &c., on behalf of pauper, how to be signed.

7. A notice of motion shall not be served or summons issued, nor shall a petition be presented, on behalf of any person admitted to sue or defend as a pauper, except for the discharge of his solicitor, unless it is signed by his solicitor.

Duty of solicitor.

8. It shall be the duty of a solicitor assigned to a person admitted to sue or defend as a pauper to take care that no notice is served, or summons issued, or petition presented, without good cause.

C. 18670.—Price 3d.

Pauper not to recover costs.

9. A person admitted to sue or defend as a pauper shall not be entitled to recover costs from any other party without the order of the Court or a Justice.

Taxation of costs.

10. Costs ordered to be paid to a person admitted to sue or defend as a pauper shall, unless the Court or a Justice otherwise directs, be taxed as in other cases.

ORDER XIa.

Leave to Sign Summary Judgment.

Application for summary judgment.

1. (1) When a defendant appears to a writ of summons specially indorsed under Order IV., Rule 2 (b), the plaintiff may, on affidavit made by himself or any other person who can swear positively to the facts verifying the cause of action and the amount claimed, if any, and stating that in his belief there is no defence to the action, apply to a Justice for liberty to enter final judgment for the amount so indorsed, or any part thereof, together with interest, if any, and costs. The Justice may thereupon, unless the defendant, by affidavit or vivâ voce evidence, or otherwise satisfies him that he has a good defence to the action on the merits, or discloses such facts as entitle him to defend, make an order giving the plaintiff leave to enter judgment accordingly.

(2) If on the hearing of an application under this Rule it appears that the plaintiff is not entitled to judgment for the full amount claimed, or for all the relief claimed, the Justice may give the plaintiff leave to enter judgment for any sum which it appears that he is entitled to recover, or for any other relief to which it appears that he is entitled.

(3) When the sum for which leave is given to enter judgment in respect of a claim specially indorsed is not the whole amount for which leave to enter judgment is asked in respect of that cause of action, the Justice may either strike out the residue of the claim in respect of that cause of action or may allow the action to proceed in respect of such residue.

(4) Any defect in the special indorsement may be amended forthwith upon such terms as a Justice may think just.

(5) When an application has been dismissed on the ground of formal defects in the proceedings or in the evidence, a fresh application may be made on amended proceedings.

Application by summons.

2. An application by a plaintiff for leave to enter final judgment under the last preceding Rule shall be made by summons, returnable not less than four clear days after service. Copies of the affidavits intended to be used upon the application, and of all exhibits therein referred to, shall be served with the summons, and no further evidence shall be given on behalf of the plaintiff except by leave of the Justice.

Defendant may show cause.

3. The defendant may show cause against such application by affidavit, or by leave of the Justice by oral evidence, or by offering to bring into Court the sum claimed.

If he shows cause by affidavit, the affidavit shall state whether the defence alleged goes to the whole or to part only, and, if so, what part of the plaintiff’s claim.

The Justice may, if he thinks fit, order the defendant, or, in the case of a corporation, any officer thereof to attend and be examined upon oath, or to produce any leases, deeds, books, or documents, or copies of or extracts therefrom.

Judgment for part of claim.

4. If it appears that the defence set up by the defendant applies only to a part of the plaintiff’s claim, or that any part of his claim is admitted, the plaintiff shall have judgment forthwith for that part of his claim to which the defence does not apply, or which is admitted, subject to such terms, if any, as to suspending execution, or the payment of the amount levied, or any part thereof, into Court by the Marshal, the taxation of costs or otherwise, as the Justice may think fit; and the defendant may be allowed to defend as to the residue of the plaintiff’s claim.

Where one defendant has good defence but other not.

5. If it appears to the Justice that any defendant has a good defence to the action, or ought to be permitted to defend, and that any other defendant has not such defence, and ought not to be permitted to defend, the former may be permitted to defend, and the plaintiff shall be entitled to enter final judgment against the latter, and may issue execution upon such judgment without prejudice to his right to proceed with the action against the former.

Leave to defend.

6. Leave to defend may be given unconditionally or subject to such terms as to giving security, or as to the time or mode of trial, or otherwise as the Justice may think fit.

Summary disposal.

7. On the hearing of an application, the Justice may, with the consent of all parties, dispose of the action in a summary manner.

Directions as to trial

8. When leave, whether conditional or unconditional, is given to defend, the Justice shall have power to give such directions as to the further conduct of the action as might be given on a summons for directions under Order XII., and may order the action to be forthwith set down for trial.

Costs

9. When no order is made as to the costs of the application, or when the costs are referred to the Justice at the trial, and no trial afterwards takes place, or no order as to costs is made at the trial, the costs of the application shall be costs in the action.

ORDER XIb.

Summary Judgment.—Actions for Account.

Order for account.

1. When a writ of summons has been indorsed with a claim for an account under Order IV., Rule 2 (d), or when the claim indorsed on a writ of summons involves taking an account, the plaintiff may at any time after appearance, or after the time for entering an appearance has expired, apply to a Justice for an order to take the account.

Application how made.

2. An application for an order under the last preceding Rule shall be made by summons, and shall, when necessary, be supported by affidavits, stating concisely the grounds of the plaintiff’s claim to an account. If any defendant has made default in appearance, the application may, as against him, be made ex parte.

Evidence in answer.

3. If the defendant does not, by affidavit or otherwise, satisfy the Justice that there is some preliminary question to be tried, an order for the proper accounts, and for all necessary inquiries, with such directions as are usual in similar cases, shall be made forthwith.

II. Rule 2 of Order XVI. is repealed.

There shall be appended to Rule 1 a note—“See Order XXX., Rule 1.”

III. Order XVIII. shall be amended as follows:—

The following Rule shall stand as Rule 5a of the Order:—

Payment out of Court.

5a. When money is paid into Court before delivery of a defence, or when the liability of a defendant in respect of a claim or cause of action in respect of which money is paid into Court is not denied in the defence, the money paid into Court shall be paid out to the plaintiff at his request, or to his solicitor on his written order, unless the Court or a Justice otherwise orders.

The following words shall be added to sub-paragraph (b) of Rule 6, of the Order:—“and thereupon the money shall be paid out to him at his request, or to his solicitor on his written order, unless the Court or a Justice otherwise orders.”

IV. In Rule 14 of Order XXX., the word “four” shall be substituted for the word “eight” in the third line of the Rule.

V. Rule 1 of. Order XLIIIa. shall be amended by omitting the words “and within the same time”, and by adding at the end of such Rule the words—“and shall be brought within the time, if any, prescribed by Regulations under the Patents Act or Trade Marks Act respectively, or if no time is so prescribed, within the same time as is prescribed for appeals from a final judgment of a Justice of the High Court.”

VI. Rule 3 of Order XLV. shall be amended by substituting the words “in the vacations” for the words “in vacation.”

VII. The following Rule shall stand as Rule 4a of Order XLIX.:—

Meaning of Registrar.

4A. The term Registrar in these Rules includes a District Registrar, Deputy Registrar, or other officer discharging the duties of the Registrar, or of a District Registrar or Deputy Registrar.

Rule 8a of Order XLIX. shall be amended by substituting in the first sub-paragraph thereof the words “every tenth line shall be numbered in the margin” for the words “the folios shall be numbered consecutively in the margin.”

VIII. The Appeal Rules shall be amended as follows:—

1. The Rule described in the Rules of Court as of Thursday, 12th December, 1907, as Rule 20 of Section I. shall be transposed to stand as Rule 3 of Section V.

2. The following words shall be added to Rule 11 of Section I.:—”A copy of the notice shall be filed in the Registry.”

3. The heading of Section II. shall be amended to read as follows:—

Appeals from Decisions of Judges of the Supreme Courts of the States in Causes or Matters pending in the High Court.

4. Rule I of Section II. shall be amended by inserting the words “in causes or matters pending in the High Court” after the words “in the exercise of federal jurisdiction” where those words first appear, and by substituting the words “in any such cause or matter” for the words “in a cause or matter in which there has been a trial by any such Judge with a jury in the exercise of federal jurisdiction.”

5. In sub-paragraph 2 of Rule 4 of Section III., the words “of leave” shall be substituted for the words “giving leave to appeal.”

6. In Rule 5 of Section III., the words “or special leave” shall be inserted after the word “leave” in both places where that word occurs.

7. The following words shall be added to Rule 7a of Section III.:—“and shall file a copy of the affidavit with the copy of the notice of appeal in the Registry of the High Court.”

8. The following words shall be added to the first paragraph of Rule 10 of Section III.:—“and shall give notice thereof to the Respondent.”

9. The following words shall be added to Rule 13 of Section III.:—“A copy of the notice shall be filed in the Registry.”

IX. When these Rules have come into force, the several Orders, Sections, and Rules of Court in the Schedule to the High Court Procedure Act 1903, as amended by these Rules and by any earlier Rules, shall be numbered consecutively in order as so amended, with all necessary amendments of references to other Orders, Sections, and Rules, and shall be cited by such amended numbering, and may be printed consecutively as so amended and numbered.

X. These Rules shall come into operation on the first day of January 1911.

S. W. GRIFFITH, C.J.

EDMUND BARTON, J.

(l.s.) R. E. O’CONNOR, J.

ISAAC A. ISAACS, J.

HY. B. HIGGINS, J.

J. W. O’Halloran,

Deputy Registrar.

 

Printed and Published for the Government of the Commonwealth of Australia by J. Kemp, Government Printer for the State of Victoria.