High Court Rules (Amendment) (Cth)

Statutory Rules 1993

No. 324 1

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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 1993.

 A. F. MASON

 F. G. BRENNAN

 WILLIAM DEANE

(L.S.)

DARYL DAWSON

 J. TOOHEY

 M. GAUDRON

FRANK JONES M. H. McHUGH

Registrar Justices of the High  Court of Australia

 

1.   Commencement

1.1

 These Rules commence on 1 February 1994.

2.   Amendment

2.1   The High Court Rules are amended by omitting Order 69A and by substituting the following Order 69A:

“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;

‘Court below’ means the Court or Judge pronouncing the judgment below’

‘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;

‘unrepresented person’ means an applicant or respondent to an application for leave or special leave to appeal who does not have legal representation;

‘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.

Initiation of applications

2.

An application shall be in the form numbered 61 in the First Schedule.

Time for filing and documents to be filed

3.

(1) An applicant shall file the application within 21 days after the judgment below was pronounced together with 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, a copy of the primary judgment or decision, the reasons (if any) of the primary court or decision-maker that were before the Court below and, in a criminal case, the summing-up or charge and, if the appeal involves a question of sentence, the judge's remarks on sentencing;

• (d)

  such other documents, if any, as are necessary for the proper determination of the application; and

• (e)

  a draft notice of appeal setting out the grounds of appeal to be relied upon in the event that leave or special leave to appeal is granted and the judgment or order sought in lieu of that appealed from, including any special order as to costs;

• (f)

  a concise statement setting out:

  • (i)

    the facts on which the application is based;

  • (ii)

    the grounds on which the judgment below is sought to be challenged;

  • (iii)

    the specific questions of law raised by the application that the applicant contends would justify the grant of leave or special leave to appeal; and

  • (iv)

    the reasons why leave or special leave should be granted.

(2)

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 rule 3 (1) shall be served within the time limited by rule 3 (1) on each person who was a party to the proceedings in the Court below:

(2)

A copy of the application shall be served within the time limited by rule 3 (1) on the Prothonotary, the Registrar or other proper officer of the Court below.

(3)

Service of any document under this rule may be effected in the manner provided by these rules for the service of documents, or 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 intending to appear on the hearing of an application for leave or special leave 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 62 in the First Schedule.

Application Book

6.

(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 prepared and 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 Registrar shall furnish a copy of the index to each party to the application.

(5)

A copy of an index may be sent by post or by facsimile transmission.

(6)

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.

(7)

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.

(8)

Within 30 days after the receipt of the index, or such further time as a Justice or the Registrar may order or direct, whether within or without the time prescribed, the applicant shall prepare and file 7 copies of the application book and supply three copies to each respondent.

(9)

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 72 hours before the date fixed for the hearing.

Directions by Registrar

7.

(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.

Summary of Argument

8.

(1) Except as provided by rules 13 and 14 and subject to any special directions which may be given by the Court, a Justice, or the Registrar in any individual case, the applicant, not less than 10 days prior to the hearing date, and the respondent, not less than 5 days prior to the hearing date, shall file and serve a summary of the arguments to be presented by them respectively on the hearing of the application.

 (2) An applicant's summary of argument shall be divided into five parts as follows:

 Part I: leave or special leave questions;

• Part II:

  a brief statement of facts with page references to the relevant passages of the application book;

• Part III:

  a brief statement of the argument, including page references to the passages of the application book where the Court below referred to the argument;

• Part IV:

  reasons why leave or special leave should be granted;

• Part V:

  a table of the authorities to which the party expects to refer, identifying the pages at which the relevant passages appear.

(3)

A respondent's summary of argument shall be divided into the parts prescribed by subrule (2) and shall state concisely the points in issue between the applicant and respondent.

(4)

A summary of argument shall not exceed 10 pages in length, and shall be signed by the practitioner who proposes to appear and to present oral argument on behalf of the applicant or respondent on the hearing of the application or, in the case of an unrepresented party, by the party personally.

(5)

A supplementary summary of argument may be filed only with the leave of the Court or a Justice or the Registrar.

Time Limitation on Oral Argument

9.

The time allocated to the parties for oral argument on the hearing of an application 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

10.

(1) An applicant may discontinue an application by filing a notice of discontinuance in the form numbered 63 in the First Schedule and by serving the notice on the respondent.

(2)

Unless the Court or a Justice, or the Registrar, otherwise orders or directs, the applicant 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.

Abandonment of Application by delay

11.

(1) Where the application books are not filed in accordance with subrule (6) of rule 6, the application shall be deemed to be abandoned, unless the Court or a Justice otherwise orders. Any such order may be made after the prescribed time.

(2)

On a request by the respondent, a certificate of deemed abandonment shall be provided by the Registrar and thereupon subrules (2), (3) and (4) of rule 10, with the necessary adaptation, shall apply.

Mode of Application

12.

(1) Save with the leave of the Court, which may be given in exceptional circumstances, an oral argument in support of an application for leave or special leave to appeal shall be presented to a Full Court by a person entitled to practise in a federal court as a barrister or solicitor or as both.

(2)

Subrule (1) of this rule does not apply to a case to which subrule (2) of rule 14 applies.

Unrepresented person

13.

(1) An unrepresented person who is an applicant for leave or special leave to appeal shall present his or her argument to the Court in the form of a written case, which, unless the Court or a Justice otherwise orders or directs, shall not be served on any person who was a party to the proceedings in the Court below.  The written case shall be in accordance with rule 8 (2) and shall not exceed 20 pages.

(2)

A written case shall be filed within 30 days of the filing of the application book.

(3)

Where a written case has been filed, the Court or a Justice may, without requiring the respondent to respond to the applicant's written case, dismiss the application.

(4)

Where the Court or a Justice is of the opinion that the respondent should be required to respond to the applicant's written case, the Court or the Justice shall direct the applicant to serve a copy of the written case on the respondent.

(5)

A respondent served with a written case by direction of the Court or a Justice, shall file and serve a written case in response within 21 days of service of the applicant's case. The written case shall deal with the matters in the written case of the applicant but shall not exceed 20 pages.

14.

(1) Where a respondent has been directed to file a written case, the Court or a Justice may determine the application on the basis of the written cases of the parties.

(2)

Where the Court or a Justice decides that there should be oral argument on the application, the Court or the Justice shall direct that the application be listed for hearing, and the parties to the application shall be given notice in writing by the Registrar.

Application of rule 11

15.

The provisions of rule 11 shall apply to rules 13 and 14, mutatis mutandis.”.

NOTES

1. Notified in the Commonwealth of Australia Gazette on 6 December 1993.

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 No. 32.