Statutory Rules 1996
No. 260 1
__________________
High Court Rules 2(Amendment)
WE, Justices of the High Court of Australia, make the following Rules of Court under the
Judiciary Act 1903.
Dated 22 November 1996.
F.
G. BRENNAN
DARYL
DAWSON
JOHN
TOOHEY
L.S. M.
GAUDRON
M.
H. MCHUGH
WILLIAM
GUMMOW
MICHAEL
KIRBY
Justices
of the High
Court
of Australia
C.
M. DOOGAN
Chief
Executive and
Principal
Registrar
____________
1. Commencement
1.1 These
Rules commence on 1 January 1997.
2. Amendment
2.1 The High Court Rules
are amended as set out in these Rules.
3. Order
69A (Applications for leave or special leave to appeal)
3.1 Omit
the Order, substitute:
“ORDER
69A
APPLICATIONS
FOR LEAVE OR SPECIAL LEAVE TO APPEAL
Interpretation
“1. In this Order, unless the contrary intention appears:
‘applicant’, in relation to
an application, means the person making the application;
‘application’ means an
application for leave or special leave to appeal to the Court and for the
purpose of rule 14 includes an application filed prior to 1 January 1997;
‘Court
below’
means the Court, Justice or Judge pronouncing the judgment below;
‘indictment’ includes an
information or other process setting out the offence with which an applicant
was charged before the court first recording a conviction or sentence;
‘judgment’ includes an
order, a conviction and a sentence;
‘judgment
below’,
in relation to an application, means the judgment from which it is sought to
appeal;
‘parties’ means an
applicant and any respondent who has filed an appearance;
‘respondent’, in relation to
an application, means a person who is required to be served with the application
other than the proper officer of the Court below;
‘unrepresented
person’
means an applicant or respondent to an application for leave or special leave
to appeal who does not have legal representation.
Initiation
of application
“2.(1) An application
shall be in the form numbered 61 in the First Schedule.
“(2) An application shall be accompanied by the following documents:
- (a)
the judgment of the Court below;
- (b)
the reasons for the judgment below;
- (c)
if the judgment below determines an appeal or reviews a decision:
- (d)
in
a criminal case:
- (i)
the indictment, the summing-up or charge; and
- (ii)
if the application relates to the sentence
imposed on the applicant—the judge’s remarks on sentencing;
- (e)
such other documents, if any, as are necessary for the proper
determination of the application.
Time
for filing application
“3.(1) An application
shall be filed within 28 days after the judgment below was pronounced.
“(2)Where an application is not filed within the time limited by
subrule (1), an order shall be sought in the application that compliance with
subrule (1) be dispensed with.
“(3) Subject to any other direction which may be given by the
Registrar, the application shall be filed in the office of the Registry in the
State or Territory in which the proceedings in the Court below were commenced.
Service
“4.(1)A copy of the
application and of the documents filed under subrule 2 (2) shall be served
on each respondent within 7 days after filing the application.
“(2)A copy of the application shall be served on the Registrar or
other proper officer of the Court below within 7 days after filing the
application.
“(3) Service of any document under this rule may be effected:
- (a)
in the manner provided by these Rules for the service of
documents; or
- (b)
by leaving a copy at the address for service, if any, of the party
to be served in the proceedings from which the application is brought.
Appearance
“5.(1) A respondent
opposing or intending to appear on the hearing of an application shall, within
14 days of service of the application, file an appearance and serve a copy on
the applicant.
“(2) A respondent’s appearance shall be in the form numbered 63 in the
First Schedule.
Summary
of argument—applicant
“6.(1) The applicant
shall, within 28 days after filing an application, file and serve a summary of
argument and a draft notice of appeal on any party who has filed a notice of
appearance.
“(2)The applicant’s summary of argument shall be in the form
numbered 62 in the First Schedule.
“(3)The applicant’s draft notice of appeal shall be in the form
numbered 65 in the First Schedule.
Summary
of argument—respondent
“7.(1) A respondent
shall, within 21 days after service of the applicant’s summary of argument,
file and serve a summary of argument.
“(2)A respondent’s summary of argument shall be in the form
numbered 62A in the First Schedule and shall state concisely the points in
issue between the applicant and the respondent.
Summary
of argument—general
“8.(1) A summary of
argument shall not exceed 10 pages in length, and shall be signed by a legal
practitioner on behalf of the applicant or the respondent or, in the case of an
unrepresented party, by the party personally.
“(2) If it is proposed that the party will appear and present oral
argument, the summary of argument shall so state.
“(3)A supplementary summary of argument may be filed only with the
leave of the Court or a Justice or the Registrar.
Reply
“9.(1) An applicant may,
within 7 days of service of a respondent’s summary of argument, file and serve
a reply.
“(2)A reply shall not exceed 5 pages in length, and shall be
signed by a legal practitioner on behalf of the applicant or, in the case of an
unrepresented applicant, by the applicant personally.
Application
book
“10.(1) For the purpose
of an application, there shall be an application book.
“(2)The contents of the application book shall be in accordance
with an index settled by the Registrar after consultation with the parties.
“(3)The index shall list such documents as will enable the Court
to determine the application.
“(4) The pages of the documents will be numbered consecutively and, in
the case of any documents referred to by original page numbers in the summaries
of argument, shall also bear those page numbers.
“(5)The Registrar shall furnish a copy of the index to each party
to the application.
“(6) A copy of an index may be sent by post or by facsimile
transmission.
“(7)Unless the contrary be shown, the time at which the index so
posted would be delivered in the ordinary course of post shall be deemed to be
the time of receipt of the index or, if the index was transmitted by facsimile,
the time of transmission shall be deemed to be the time of receipt of the
index.
“(8)The applicant shall prepare an application book in the like
manner and form as is required in the case of an appeal book in rule 12 of
Order 70.
“(9)Within 30 days after the receipt of the index, or such other
time as a Justice or the Registrar may order or direct, the applicant shall:
(a) prepare
and file 7 copies of the application book; and
(b) supply
3 copies of the application book to each respondent.
“(10) If, on the hearing of an application, a party intends to refer to
a document which is not included in the application book, that party shall give
notice to each other party not less than 3 working days before the date
fixed for the hearing.
Time
limitation on oral argument
“11.(1) If an application
is listed for hearing, a party who is present at the hearing, or a legal
practitioner on behalf of a party, may appear and, subject to the next
succeeding subrule, present oral argument.
“(2) The time allocated to the parties for oral argument on the hearing
of an application shall be as the Court orders or, in default of any order,
shall be as follows:
(a) applicant—20
minutes;
(b) respondent—20
minutes;
(c) applicant
in reply—5 minutes;
provided
that the Court may extend the time allocated to either party as the Court
thinks fit.
Discontinuance
of application
“12.(1) An applicant may
discontinue an application by filing a notice of discontinuance in the form
numbered 64 in the First Schedule and by serving the notice on the respondent.
“(2)Unless the Court or a Justice has otherwise ordered, an
applicant who discontinues an application shall pay the respondent’s costs, in
respect of the application, and such costs shall be taxed, unless agreed.
“(3)Production of the notice of discontinuance initialled by the
Registrar shall be sufficient authority for the taxation of costs.
“(4)Subrules (2) and (3) apply only to applications for leave or
special leave to appeal in civil matters in which there is no statutory
prohibition against, or limitation of, an award of costs in favour of the
respondent.
Deemed
abandonment of application by delay
“13.(1)Where an
applicant fails to comply with subrules 4 (1), 4 (2), 6 (1)
or 10 (9) within six months after filing the application, the application
shall be deemed to be abandoned, unless the Court or a Justice or Registrar has
otherwise ordered or directed.
“(2)On a request by the respondent, a certificate of deemed
abandonment shall be provided by the Registrar and thereupon subrules
12 (2), (3) and (4), with the necessary adaptation, shall apply.
Directions
by Registrar
“14.(1)At any time,
after the filing of an application, the Registrar may give directions as to any
matter which appears to the Registrar to be a convenient matter upon which to
give directions.
“(2) The directions referred to in subrule (1) may be given without a
hearing provided that the Registrar may, at any time, issue a summons requiring
the parties to an application to attend before the Registrar, and any party to
an application may apply, at any time, for an appointment with the Registrar.
Determination
of application on written material
“15.(1) A party may, in
his or her summary of argument, elect not to present oral argument.
“(2)Where an application is listed for hearing and it appears to
the Court or a Justice that a party is likely to be unable, or that it is
likely to be impracticable for a party, to appear personally or by a legal
representative to present oral argument, the Court may direct that the party’s
case be considered on the basis of his or her summary of argument and any reply
without oral argument from that party.
“(3) Nothing in subrule (2) prevents any other party from presenting
oral argument.”.
4.First Schedule
4.1 Forms 61, 62 and 63:
Omit
the Forms, substitute:
FORM 61
O.
69A, r. 2 (1)
IN
THE HIGH COURT OF AUSTRALIA
[SYDNEY]
OFFICE OF THE REGISTRY
No. [S]
of 19
BETWEEN: AB
Applicant
and
XY
Respondent
APPLICATION
FOR LEAVE OR SPECIAL LEAVE TO APPEAL
1. The
Applicant applies for leave [or special leave] to appeal from [specify
part or whole] of the judgment of [specify Court, Justice or Judge below]
given on [specify date].
Grounds
2. [Specify
briefly the grounds on which the judgment below is said to be wrong].
Order(s) sought
3. [Specify
the judgment sought in lieu of that challenged including any special order as
to costs].
Dated the
day of 19 .
....................................................................[Signed, Solicitor or Applicant if unrepresented]
To:
The Respondent [address]
TAKE NOTICE:
Before taking any step in the proceedings you must, within 14 DAYS
after service of this application, enter an appearance in the office of the
Registry in which the application is filed, and serve a copy on the applicant.
THE APPLICANT’S SOLICITOR IS:
[name of firm and address for service,
telephone and facsimile numbers]
OR
THE APPLICANT’S ADDRESS FOR SERVICE
IS:
[if the applicant is
unrepresented - address for service, telephone and facsimile numbers]
_____________
FORM 62
O.
69A, r. 6 (2)
(Heading as in Form 61)
APPLICANT’S SUMMARY OF ARGUMENT
Part I: [A concise statement of the leave or special leave questions
said to arise].
Part II: [A brief statement of the factual background to the
application].
Part III: [A brief statement of the applicant’s argument].
Part IV: [Reasons why leave or special leave should be granted].
Part V: [Any reasons why an order for costs should not be made in favour
of the respondent in the event that the application is refused].
Part VI: [A table of the authorities, legislation or other material on which
the applicant relies, identifying the pages at which the relevant passages
appear].
Part VII: [Indicate whether the applicant seeks to
supplement this summary with oral argument].
Dated the
day of 19 .
..................................................................
(Signed,
Practitioner or Applicant if unrepresented)
_____________
FORM 62A
O.
69A, r. 7 (2)
(Heading as in Form 61)
RESPONDENT’S SUMMARY OF ARGUMENT
Part I: [Reasons why leave or special leave should/should not be
granted].
Part II: [A brief statement of the factual issues in contention].
Part III: [A brief statement of the respondent’s argument].
Part IV: [Any special order as to costs sought by the respondent].
Part V: [A table of the authorities, legislation or other material on
which the respondent relies, identifying the pages at which the relevant
passages appear].
Part VI: [Indicate whether the respondent seeks to
supplement this summary with oral argument].
Dated the
day of 19 .
....................................................................(Signed, Practitioner or Respondent if unrepresented)
_____________
FORM 63
O.
69A, r. 5 (2)
(Heading as in Form 61)
APPEARANCE
Enter an appearance for the
respondent in this application.
Dated the
day of 19 .
....................................................................(Signed, Practitioner or Respondent if unrepresented)
To:
The Applicant (address)
THE RESPONDENT’S SOLICITOR IS:
[name of firm and address for service,
telephone and facsimile numbers]
_____________
4.2 Form
64:
Omit “O. 69A, r. 10 (1)”, substitute “O. 69A, r. 12 (1)”.
____________________________________________________________
NOTES
1. Notified in the Commonwealth
of Australia Gazette on 29 November 1996.
2. Statutory Rules 1952
No. 23 as amended by 1953 Nos. 1 and 46; 1954 No. 102; 1955 Nos. 25 and 34;
1959 No. 107; 1960 Nos. 19 and 94; 1961 Nos. 19 and 89; 1968 No. 4; 1970 No.
17; 1973 Nos. 94 and 205; 1976 No. 44; 1977 No. 41; 1978 Nos. 10 and 46; 1980
Nos. 88 and 296; 1981 No. 24; 1982 Nos. 77, 164, 216 and 262; 1983 Nos. 257 and
263; 1984 No. 406; 1985 No. 387; 1986 Nos. 22, 290, 305 and 383; 1987 Nos. 46,
179 and 302; 1988 Nos. 218 and 230; 1989 Nos. 27 and 132; 1990 No. 349; 1991
Nos. 318 and 473; 1992 Nos. 40 and 85; 1993 Nos. 32 and 324; 1994 Nos. 1 and
144; 1995 Nos. 45 and 108.