High Court Rules (Amendment) (Cth)

JUDICIARY.

 

Page.
High Court Rules........................................................................................................	266
Service and Execution of Process Regulations.......................................................	279

 

HIGH COURT RULES.

 

Statutory Rules 1955, No. 25(a)

 

Applications by Motion.

1. Rule 1 of Order 51 is amended by striking out the words “ Where, by these Rules, an application is authorized to be made to the Court or a Justice ” and inserting in their stead the words “ Where an application is authorized by or under an Act or by these Rules and no other procedure is provided ”.

Definitions.

2. Rule 1 of Order 66 is amended by adding at the end of the definition of “ a law relating to industrial property ” the words “ and includes a provision of an Act repealed by the Patents Act 1952 in its application by virtue of sub-section (3.) of section 5 of the last-mentioned Act ”.

Application.

3. Rules 2 and 3 of Order 66 are repealed and the following rules inserted in their stead :—

Application of Order.

“ 2. This Order applies to all proceedings in the Court under a law relating to industrial property other than proceedings to which Order 66a applies.

Application of other Orders.

“ 3. Subject to this Order and to any law of the Commonwealth, the provisions of the other Orders of these Rules, except Order 66a, apply, so far as is practicable, to proceedings to which the last preceding rule applies.”.

4. After Order 66 the following Order is inserted:—

“ ORDER 66a.

Proceedings under the Patents Act 1952-1954.

Definitions.

“ 1. In this Order, unless the contrary intention appears—

‘ proceeding ’ includes an application, appeal, reference, action or petition under the Act ;

‘ the Act ’ means the Patents Act 1952-1954, and includes regulations made under that Act ;

‘ the Commissioner ’ has the same meaning as in the Act ;

‘ the Court ’ includes the Court exercising jurisdiction as the Appeal Tribunal under the Act.

Application of this Order.

“ 2. This Order applies to all proceedings in the Court under the Act.

 

(a) Made under the Judiciary Act 1903-1950 on 23rd March, 1955; notified in the Gazette on 14th April, 1955.

Application of other Orders.

“ 3.Subject to this Order, the provisions of the other Orders of these Rules, other than Order 66, apply, so far as is practicable, to proceedings to which this Order applies.

Applications and appeals.

“ 4.—(1.) Unless otherwise required or authorized by any law, an appeal from the Commissioner to the Court or an application to the Court shall be made—

(a) before a Single Justice of the Court ;

(b) by motion on notice; and

(c)at a time and place named in the notice to be fixed by the Registrar on the direction of a Justice.

“ (2.) In the case of an appeal, the notice shall state—

(a)whether the appeal is from the whole or a part only of the decision, determination or direction appealed from and, if it is from a part only, what part ; and

(b)the grounds of the appeal.

“ (3.) The Court may, on such terms and conditions as it thinks fit, allow a notice to be amended.

“ (4.) On the hearing of an appeal, the appellant shall be limited to the grounds stated in the notice or, if the Court has allowed the notice to be amended, to the grounds stated in the notice as amended.

Notice of applications and appeals.

“ 5.—(1.) Notice of an application or appeal to the Court under the Act shall be given to the Commissioner and any other person directly affected by the application or appeal forthwith after the notice of motion or other document by which the application or appeal is brought has been filed.

“ (2.) The notice shall be given by serving or delivering the notice of motion or other document, or a copy of the notice of motion or other document, upon or to the person to whom the notice is to be given.

“ (3.) The service or delivery shall be effected not less than twenty-one clear days before the day on which the application or appeal is to come before the Court for hearing.

Transmission of documents to Court by Commissioner.

“ 6. Where notice of an appeal against a decision, determination or direction of the Commissioner is given to the Commissioner under the last preceding rule, the Commissioner shall, within fourteen days after receiving the notice—

(a)transmit to the Registrar any documents in his possession which are necessary for the hearing of the appeal, together with a list of those documents ; and

(b)give notice in writing to the appellant that the documents have been so transmitted.

Affidavits to be used on applications and appeals.

“ 7.—(1.) A copy of an affidavit intended to be used by a person upon the hearing of an application or appeal to the Court under the Act shall be served or delivered by him upon or to every other party to the application or appeal and each person to whom notice of the application or appeal has been given.

“ (2.) Service or delivery of an affidavit under the last preceding sub-rule shall be effected within seven days of the date on which the affidavit was filed in the Court and, subject to the next succeeding

sub-rule, not less than fourteen clear days before the day on which the application or appeal is to come before the Court for hearing.

“ (3.) An affidavit in reply shall be filed and served or delivered within a reasonable time before the day on which the application or appeal is to come before the Court for hearing.

Service of documents.

“ 8. A document to be served upon or delivered to the Commissioner may be served or delivered by sending it in a prepaid letter through the post properly addressed to the Commissioner at his office and, if so sent, the document shall be deemed to have been served or delivered at the time when the letter containing it would be delivered in the ordinary course of post.

Assistance to Court by Commissioner.

“ 9.—(1.) In proceedings before the Court, the Commissioner may appear and be heard, but he shall not be deemed to be a party to the proceedings except in the case of an appeal from a decision, determination or direction of the Commissioner not directly affecting a person other than the appellant.

“ (2.) The Commissioner may submit to the Court a statement in writing signed by him giving particulars—

(a) of any proceedings before him in relation to the matter in issue ;

(b)the grounds of a decision, determination or direction given or made by him in respect of those proceedings ; and

(c) of the practice of his office in like cases.

“ (3.) The Commissioner shall deliver to the parties copies of any statement he submits to the Court.

“ (4.) The Court may make such use of the statement as the Court may think just.

Commissioner not required to give notice.

“ 10. If the Commissioner elects or is required by the Court to appear in proceedings before the Court, the Commissioner shall not, except by the direction of the Court or a Justice, be required to give notice of the grounds of any objection he may think fit to take or of any evidence he may think fit to place before the Court.

Lodging and delivery of copy documents.

“ 11. An appellant shall, not less than seven clear days before the day on which the appeal is to come before the Court for hearing—

(a)lodge in the Registry in which the appeal is pending a sufficient number of copies, for the use of the Justice who will hear the appeal, of all documents necessary for the hearing of the appeal; and

(b)deliver a copy of each of those documents to every other party to the appeal.

Cross-appeal.

“ 12.—(1.) A respondent who desires to appeal from a part of a decision, determination or direction from which the appellant has appealed, or to seek a variation of a part of that decision, determination or direction, need not institute a substantive appeal but may, within twenty-one days after the service upon him of notice of the appeal, or within such further or other time as the Court or a Justice fixes—

(a)file in the Registry in which the appeal is pending a notice of cross-appeal; and

(b)serve a copy of the notice upon the appellant and any other person affected by the relief which the respondent seeks.

“ (2.) The notice of cross-appeal shall state—

(a) what part of the decision, determination or direction the respondent cross-appeals from or contends should he varied; and

(b)the grounds of the cross-appeal and the relief he seeks.

“ (3.) It is not necessary to give notice of cross-appeal if a respondent proposes to contend that some matter of fact or law has been erroneously decided against him but does not seek a discharge or variation of any part of the decision, determination or direction actually pronounced or made.

“ (4.) Sub-rules (3.) and (4.) of rule 4 of this Order shall apply in the case of a cross-appeal mutatis mutandis.

Petitions.

“ 13.—(1.) A petition under section 90 of the Act shall be in the form numbered 58 in the First Schedule and shall be filed in the Court.

“ (2.) Every petition under the Act shall contain a concise statement of the material facts on which the petitioner relies, but shall not contain particulars of the evidence by which the facts are to be proved or, except so far as material, of the contents of documents.

“(3.) At the foot of every petition, and of each copy of a petition, there shall appear—

(a) a statement of the persons, if any, upon whom it is intended to serve the petition; or

(b) if it is not intended to serve the petition—a statement to that effect.

Affidavit as to advertisement in applications for extensions of patents.

“ 14. A person who presents a petition to the Court under section 90 of the Act, or applies to the Court under section 95 of the Act, shall file an affidavit verifying that he has, in accordance with the Patents Regulations, advertised his intention to present the petition or to apply to the Court, as the case may be.

Caveats and notices of opposition against extensions of patents.

“ 15.—(1.) A caveat under section 91 of the Act, or a notice of opposition under section 95 of the Act, shall be filed or given, as the case requires, within the time stated in the advertisement published in accordance with the Patents Regulations in relation to the petition or application as the time within which the petition or application is to be lodged, or within such further time as the Court allows.

“ (2.) A caveat shall be in the form numbered 59 in the First Schedule and a notice of opposition shall be in the form numbered 60 in the First Schedule, with such variations as the circumstances require.

“ (3.) A notice of opposition under section 95 of the Act shall be given by filing the notice in the Registry in which the proceeding is pending.

Service of copy of caveat or of notice of opposition.

“ 16. A person who files a caveat under section 91 of the Act against the extension of a patent, or a notice of opposition under section 95 of the Act to the granting of an application for the extension of a patent, shall, within seven days after filing the caveat or notice, serve a copy of the caveat or notice upon the Commissioner and the person applying for the extension.

Service of petition or application on caveator or opponent

“17. Where, under the last preceding rule, a copy of a caveat or of a notice of opposition is served upon a person applying for an extension of a patent, he shall as soon as practicable serve upon the caveator or opponent, as the case may be, a copy of his petition or notice of motion and of the affidavits, if any, in support of the petition or application.

Particulars of objections.

“ 18.—(1.) A caveator or opponent shall, within twenty-one days after the service upon him under the last preceding rule of a copy of the petition or notice of motion, file in the Registry in which the petition or application is pending particulars of the objections upon which he intends to rely and serve upon the petitioner or applicant, and the Commissioner, a copy of those particulars.

“ (2.) A caveator or opponent who does not comply with the last preceding sub-rule shall, unless the Court otherwise orders, be deemed to have abandoned his opposition.

Costs to or against a caveator or opponent.

“ 19.—(1.) The Court may award costs to or against a person who files a caveat under section 91 of the Act or gives notice of opposition under section 95 of the Act.

“(2.) If the Court refuses to extend the term of a patent, it shall not, except in special circumstances, allow more than one set of costs amongst all the caveators or opponents.

Summons for directions.

“ 20.—(1.) A person who institutes proceedings for the extension of the term of a patent shall, and a person who institutes any other proceedings under the Act may, before the proceedings are set down for hearing, take out a summons for directions under Order 31.

“ (2.) The directions shall make provision with respect to the time of hearing and direct whether evidence should be given orally or upon affidavit.

Case stated or questions reserved.

“ 21. Order 35 applies, so far as applicable, to a case stated or a question reserved under section 150 of the Act.”.

First Schedule.

5. The First Schedule is amended by adding at the end thereof the following forms:—

Form 58.

0. 66a, r. 13 (1.).

Petition.

(Title [as in Form 1].)

In the matter of the Patents Act 1952-1954

and

In the matter of letters patent dated the day of

numbered and granted to A.B. of , for an invention entitled .

To the High Court of Australia

The humble petition of A.B. of , and of C.D. of

Sheweth as follows:—

1. On the day of letters patent numbered , were granted to your petitioner A.B. for an invention entitled

2. Your petitioner C.D. has become entitled to the said letters patent under the circumstances hereinafter appearing.

Set forth—

(a) The history of the Art with special reference to the invention.

(b) The special utility and advantages of the invention.

(c)The circumstances under which the patent was obtained and the rights of C.D. created.

(d)All information relating to foreign patents.

(e) The rights of third parties, such as licensees, &c.

(f) The difficulties with which the patentee has had to contend in getting his invention taken up.

(g) The fact of insufficient remuneration, generally stated without special reference to accounts.

Your petitioners have given public notice by advertisement inserted in the Official Journal as prescribed by the Patents Regulations of their intention to apply to this Court for an extension of the term of the said letters patent.

Your petitioners therefore humbly pray that the said letters patent may be extended for a further term of   years or for such other term as to this Court shall seem fit and your petitioners will ever pray, &c.

Dated the day of

(Signatures of petitioners.)

It is intended to serve this petition upon

(Or It is not intended to serve this petition upon any person.)

 

Form 59.

0. 66a, r. 15 (2.).

Caveat.

(Title [as in Form 1].)

Let nothing be done towards the grant of an extension of the term of letters patent numbered   without notice to E.F. of who claims to be interested.

The address for service of the said E.F. is

Dated the day of 19

(Signature of caveator or his solicitor.)

To the Registrar of

the High Court of Australia at

 

Form 60.

0. 66a, r. 15 (2.).

Notice of Opposition.

(Title [as in Form 1].)

Notice is hereby given that G.H. of intends to oppose the application for extension of the term of the letters patent numbered

The address for service of the said G.H. is

Dated the day of 19

(Signature of opponent or his solicitor.)

To the Registrar of

the High Court of Australia at