High Court of Australia Rules of Court (Cth)

STATUTORY RULES.

1932. No. 145.

 

HIGH COURT OF AUSTRALIA.

Principal Registry,

Melbourne, 16th December, 1932.

NOTICE is hereby given that Their Honours the Justices of the High Court of Australia have been pleased to make the following Rules of Court.

SEAFORTH MACKENZIE, Principal Registrar.

 

HIGH COURT OF AUSTRALIA.

Rules of Court.

As of Monday the fourteenth day of November, 1932.

It is ordered as follows:—

The following shall be Rules of Court applying to all causes or matters whether now pending or afterwards commenced.

Order IX. (a).

Where leave is given in a civil or commercial cause or matter to serve any writ or summons, originating summons, notice or other document in any foreign country with which a Convention in that behalf has been or shall be made and extended to the Commonwealth of Australia, the following procedure shall, subject to any special provisions contained in the Convention, be adopted :—

(1.) The party bespeaking such service shall file in the Registry a Request in the form set out in Form No. 12 hereto which Form may be varied as may be necessary to meet the circumstances of the particular case in which it is used. Such Request shall state the medium through which it is desired the service shall be effected, i.e, whether (a) directly through the British Consul, or (b) through the foreign judicial authority, and shall be accompanied by the original document and a translation thereof in the language of the country in which service is to be effected certified by or on behalf of the person making the request and a copy of each for every person to be served and any further copies which the Convention may require, unless the service is required to be made on a British subject directly through the British Consul in which case the translation and copies thereof need not accompany the Request unless the Convention expressly requires that they should do so.

(2.) The documents to be served shall be sealed with the Seal of the Court for use out of the Jurisdiction and shall be forwarded by the Principal Registrar to His Majesty’s Attorney-General for the Commonwealth of Australia for transmission through the diplomatic channel to the foreign country.

4305.—Price 5d.

 

(3.) An official certificate transmitted through the diplomatic channel by the foreign judicial authority, or by a British Consular authority, to the Court, establishing the fact and the date of the service of the document shall be deemed to be sufficient proof of such service, and shall be filed of record as and be equivalent to an Affidavit of Service within the requirements of Rules of the Court in that behalf.

(4.) In cases where a writ of summons or notice thereof is served pursuant to this Rule, and an official certificate of such service is produced, no endorsement of service under Order VIII. Rule 7 shall be required.

Order XXXIV. (a).

(1.) Where an order is made for the issue of a Request to examine a witness or witnesses in any foreign country with which a Convention in that behalf has been or shall be made and extended to the Commonwealth of Australia, the following procedure shall be adopted:—

(I.) The party obtaining such order shall file in the Registry an undertaking in the Form No. 13 hereto which Form may be varied as may be necessary to meet the circumstances of the particular case in which it is used.

(II.) Such undertaking shall be accompanied by:—

(a) A Request in the Form No. 14 hereto with such variation as may be directed in the order for the issue thereof together with a translation of such Request in the language of the country in which the same is to be executed.

(b) A copy of the interrogatories (if any) to accompany the Request and a translation thereof.

(c) A copy of the cross-interrogatories (if any) and a translation thereof.

(2.) Where an order is made for the examination of a witness or witnesses before the British Consular authority in any foreign country with which a Convention in that behalf has been or shall be made and extended to the Commonwealth of Australia, such order shall be in Form No. 15 hereto, which Form of order may be varied as may be necessary to meet the circumstances of the particular case in which it is to be used.

Form No. 12.

[Title of Cause.]

I [or we] hereby request that a notice of a writ of summons [or as the case may be, describing the document] in this action be transmitted through the proper channel to (a) for service (b)on the defendant at

 or elsewhere in (a)  (c)  

And I [or we] hereby personally undertake to be responsible for all expenses incurred by the Commonwealth in respect of the service hereby requested, and on receiving due notification of the amount of such expenses I [or we] undertake to pay the same to the Treasury and to produce the receipt for such payment to the proper officer of the High Court of Australia.

Dated this day of , 19 .

................................................................

(Signature of solicitor.)

(a) Name of Country.

(b) Or substituted service.

(c) Add “Directly through the British Consul” or “by the foreign judicial authority” or the like, as the case may require.

 

Form No. 13.

[Title of Cause.]

I [or we] hereby undertake to be responsible for all expenses incurred by the Commonwealth in respect of the letter of Request issued herein on the  , and on receiving due notification of the amount of such expenses undertake to pay the same as directed by the Principal Registrar of the High Court of Australia.

The following have been appointed as agents for the parties in connexion with the execution of the above letter of request:—

Plaintiff’s agent:—

of

Defendant’s agent:—

of

Dated this day of , 19 .

................................................................

Solicitors for

 

Form No. 14.

[Title of Cause.]

To the Competent Judicial Authority of in the of .

Whereas a civil (commercial) action is now pending in the High Court of Australia, in which is plaintiff and is defendant.

And in the said action the plaintiff claims

And whereas it has been represented to the said Court that it is necessary for the purpose of justice and for the due determination of the matters in dispute between the parties, that the following persons should be examined as witnesses upon oath touching the matters, that is to say:—

, of

, of

and , of

And it appearing that such witnesses are resident within your jurisdiction.

Now I the Principal Registrar of the High Court of Australia have the honour to request, and do hereby request, that for the reasons aforesaid and for the assistance of the said Court, you will be pleased to summon the said witnesses (and such other witnesses as the agents for the said plaintiff and defendant shall humbly request you in writing so to summon) to attend at such time and place as you shall appoint before you, or such other person as according to your procedure is competent to take the examination of witnesses, and that you will cause such witnesses to be examined (upon the interrogatories which accompany this letter of Request) viva voce touching the said matters in question in the presence of the agents of the plaintiff and defendant or such of them as shall, on due notice given, attend such examination.

And I further have the honour to request that you will permit the agents of both the said plaintiff and defendant or such of them as shall be present to be at liberty to examine (upon interrogatories and viva voce upon the subject-matter thereof or arising out of the answers thereto) such witnesses as may, after due notice in writing, be produced on their behalf, and give liberty to the other party to cross-examine the said witnesses (upon cross-interrogatories and viva voce) and the party producing the witness for examination liberty to re-examine him viva voce.

And I further have the honour to request that you will be pleased to cause (the answers of the said witnesses and all additional viva voce questions, whether on examination, cross-examination, or re-examination) the evidence of such witnesses to be reduced into writing and all books, letters, papers, and documents produced upon such examination to be duly marked for identification, and that you will be further pleased to authenticate such examination by the seal of

your tribunal or in such other way as is in accordance with your procedure and to return the same together with (the interrogatories and cross-interrogatories, and) a note of the charges and expenses payable in respect of the execution of this request, through the British Consul from whom the same was received for transmission to the High Court of Australia.

And I further beg to request that you will cause me, or the agents of the parties if appointed, to be informed of the date and place where the examination is to take place.

Dated the day of , 19 .

 

Form No. 15.

[Title of Cause.]

ORDER FOR APPOINTMENT OF BRITISH CONSUL AS SPECIAL EXAMINER.

Upon hearing the solicitors on both sides, and upon reading the affidavit of

It is ordered that the British Consul or his deputy at  be appointed as Special Examiner for the purpose of taking the examination, cross-examination and re-examination, viva voce, on oath or affirmation, of witnesses on the part of the at   aforesaid. The Examiner shall be at liberty to invite the attendance of the said witnesses and the production of documents, but shall not exercise any compulsory powers. Otherwise such examination

shall be taken in accordance with English procedure. The solicitors to give  solicitors days’ notice in writing of the date on which they propose to send out this order to  for execution and that  days after the service of such notice the solicitors for the plaintiffs and defendants respectively do exchange the names of their agents at to whom notice relating to the examination of the said witnesses may be sent. And that days (exclusive of Sunday) prior to the examination of any witness hereunder notice of such examination shall be given by the agent of the party on whose behalf such witness is to be examined to the agent of the other party (unless such notice be dispensed with). And that the depositions when so taken, together with any documents referred to therein, or certified copies of such documents, or of extract therefrom, be transmitted by the Examiner, under seal, to the Principal Registrar of the High Court of Australia, on or before the day of  next, or such further or other day as may be ordered, there to be filed in the proper place. And that either party be at liberty to read and give such depositions in evidence on the trial of this action, saving all just exceptions. And that the trial of this action be stayed until the filing of such depositions. And that the costs of and incident to this application and such examination be costs in this action.

Dated the day of , 19 .

(Note.—If the Convention requires that the invitation or notice to the witnesses must expressly state that no compulsory powers may be used, this requirement must be complied with.)

(L.S.)

FRANK GAVAN DUFFY, C.J.

G. E. RICH, J.

H. E. STARKE, J.

OWEN DIXON, J.

H. V. EVATT. J.

EDWARD A. McTIERNAN, J.

Seaforth Mackenzie,

Principal Registrar.

 

By Authority: L. F. Johnston, Commonwealth Government Printer, Canberra.