High Court Rules (Amendment) (Cth)

Statutory Rules

1973 No. 205

HIGH COURT OF AUSTRALIA

RULE OF COURT*

(As of Monday the 15th day of October 1973)

PURSUANT to the Judiciary Act 1903-1969 and to all powers thereunto enabling, it is ordered as follows:—

That the High Court Rules, being Statutory Rules 1952, No. 23, as amended, be further amended in manner hereinafter appearing, that is to say:—

Application of amendment.

1. (1) The amendments of the First Schedule made by paragraphs 2 and 3 of this Rule shall take effect on the day on which the Royal Style and Titles Act 1973 comes into operation.

(2) The Schedule inserted by paragraph 3 of this Rule shall apply to all work done or services performed on or after 1st November 1973, and notwithstanding its repeal the Schedule hereby repealed shall apply to all work done or services performed before that date.

First Schedule— Form 1.

2. The First Schedule is amended by omitting Forms 1, 6 and 9 and substituting the Forms set out in Schedule 1 to this Rule.

First Schedule.

3. The First Schedule is amended as set out in Schedule 2 to this Rule.

Second Schedule.

4. The Second Schedule is repealed and the Schedule set out in Schedule 3 to this Rule is substituted.

SCHEDULE 1 Rule 2

“ Form 1

0.2, r.3.

0.5, rr.2 and 3.

General Form of Writ of Summons

In the High Court of Australia

(Registry)

Between A.B. (an Infant, by G.H.,his next friend)

Plaintiff

and

Defendants

C.D. and E.F.,

* Notified in the Australian Government Gazette on 23 October 1973.

  Statutory Rules 1952, No. 23, as emended by Statutory Rules 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; and 1973, No. 94.

Schedule 1—continued

ELIZABETH THE SECOND, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth.

To C.D. of , and E.F., of

We command you that within days after the service of this writ on you, inclusive of the day of such service, you do cause an appearance to be entered for you in Our High Court of Australia in an action at the suit of A.B., and take notice that, in default of your go doing, the plaintiff may proceed therein, and judgment may be given in your absence.

Witness: Y.Z., Chief Justice of Australia, the  day of , in the year of Our Lord One thousand nine hundred and

(L.S.)

N.B.—This writ is to be served within twelve calendar months from the date thereof, or, if renewed, within six calendar months from the date of the last renewal, including the day of such date, and not afterwards.

Memorandum to be subscribed on writs, etc., Issued from the Principal Registry.

Appearance (or Appearances) to this writ may be entered by the defendant (or defendants) either personally or by solicitor at the Principal Registry of the High Court at [Principal Seat of Court].

Memorandum to be subscribed on writs, etc., issued from District Registries.

If a defendant resides or carries on business in the State (or Territory) of [State or Territory in which District Registry is situated], his appearance to this writ may be entered, either personally or by solicitor, at [Registry abovementioned].

If a defendant neither resides nor carries on business in the State (or Territory) of [State or Territory in which District Registry is situated],he may, at his option, cause his appearance to be entered either at the Registry abovementioned or at the Principal Registry of the High Court at [Principal Seat of the Court].

Endorsements to be made on the writ before issue.

The plaintiffs claim is, etc. [state briefly the nature of the relief claimed in the action].

This writ was issued by the plaintiff in person, who resides at , and whose address for service is at the same place (or at ).

This writ was issued by X.Y., of , whose address for service is , at Solicitor for the plaintiff, who resides at  .

This writ was issued by V.W., of ,

 whose address far service is 

, agent for X.Y., of  , solicitor for the plaintiff, who resides at .

Mention the locality and situation of the plaintiff’s residence in such a manner as to enable it to be easily discovered.

Endorsement to be made on the writ after service.

This writ was served by me on the defendant

at  on   day, the day

of 19 .

Endorsed the day of , 19 .

(Signed) M.N.

(Address).”.

Schedule 1—continued

“ Form 6 Ο. 10, r. 7 (2)

Request to Attorney-General to Transmit Notice of Writ to Foreign Government

The Chief Justice of Australia presents his compliments to the Attorney-General of Australia and has the honour to enclose a notice of a writ of summons (and a copy thereof) issued in an action versus pursuant to order, out of pursuant to order, out of the High Court for transmission to the Ministry of Foreign Affata in (name of country)with the request that the same may be served personally upon (name of defendant to be served)against whom proceedings have been taken in the Australian Court, and with the further request that such evidence of the service of the same upon the said defendant may be officially certified to the Australian Court, or declared upon oath, or otherwise, In such manner as is consistent with the usage or practice of the Courts in the (name of country)in proving service of legal process.

The Chief Justice further requests that, in the event of efforts to effect personal service of the said notice of writ proving ineffectual, the Government or Court of the said country be requested to certify the same to the Australian Court.”.

“ Form 9 O, 10, r. 7 (6)

Letter forwarding Request for Substituted Service

The Chief Justice of Australia presents his compliments to the Attorney-General of Australia and has the honour to enclose a notice of a writ of summons in the case of

versus

in which the plaintiff has obtained an order of the High Court (which is also enclosed) giving leave to bespeak a request that the said notice of writ may be served by substituted service on the defendant at  in the (name of country).

The Chief Justice requests that the said notice of writ and order may be forwarded to the proper authority in (name of country)with the request that the same may be transmitted by post addressed to the defendant at  (the last known place of abode or the place of business) of the said defendant, or there delivered in such manner as may be consistent with the usage or practice of the Courts of (name of country)for service of legal process where personal service cannot be effected; and with the further request that the same may be officially certified to the Australian Court, or declared upon oath, or otherwise, in such manner as is consistent with the practice of the Courts of the (name of country)In proving service of legal process.”.

SCHEDULE 2 Rule 3

Amendments of Forms IN the First Schedule

Form Amended	Omit—	Substitute—
7	(1) “ The Chief Justice of the High Court ”	(1) “ The Chief Justice of Australia ”
(2) “ Her Majesty’s Attorney-General for the Commonwealth of Australia ”	(2) “ the Attorney-General of Australia ”
37	“ Elizabeth the Second by the Grace of God of Great Britain, Ireland and the British Dominions beyond the Seas, Queen, Defender of the Faith ”.	“ Elizabeth the Second, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth ”
46	(1) “ the Chief Justice of the said High Court ”	(1) “ the Chief Justice of Australia ”
(2) “ Her Majesty’s Attorney-General for the Commonwealth of Australia ”	(2) “ the Attorney-General of Australia ”

SCHEDULE 3 Rule 4

“ SECOND SCHEDULE COSTS

Writs

$
1. Originating process..............................................................................................................	13.50
If more than six folios, for every extra folio.......................................................................	1.25
2. Endorsement of claim (If special).........................................................................................	6.50
H more than six folios, for every extra folio.......................................................................	1.25
3. Concurrent writ of summons................................................................................................	4.50
4. Writ of subpoena duces recum..............................................................................................	5.50
5. Writ of subpoena ad testificandum........................................................................................	5.50
6. Writ of fieri facias or of possession.......................................................................................	10.00
7. Other writ to enforce a judgment or order..............................................................................	10.00
8. Any other writ not specified above
Such amount as the taxing officer thinks reasonable.
9. If any of the above writs (except writs of summons) exceed six folios, for each extra folio..	1.00
These costs include all endorsements, and copies of praecipes for the officers sealing them, and attendances to issue or seal, but not the Court fees.

Summonses

10. Summonses to attend at Justices’ Chambers.......................................................................	5.50
or
If special, at taxing officer’s discretion, not exceeding.......................................................	10.00
11. Attending to issue, including attendance to have date of return fixed....................................	5.50
An allowance shall not be made for praecipes unless special and exceeding six folios.

Notices

12. Notice to produce (including copy to serve).........................................................................	6.00
If more than six folios, for each extra folio.........................................................................	1.00
13. Notice to admit (including copy to serve)............................................................................	10.00
If more than six folios, for each extra folio.........................................................................	1.00
14. Any necessary or proper notice or memorandum not otherwise provided for or any demand...	4.50
This provision does not apply to short notices or memoranda endorsed on other documents but the words or folios therein may be allowed as part of the document so endorsed.
The allowance in this item includes preparation of notice and one copy for service.

Services

15. Personal service of any process or proceeding where necessary..............................................	8.00
If served at a distance of more than three miles from the nearest place of business, or office of the solicitor serving the same, according to the time occupied and fares paid.
16. When, in consequence of the distance of the party to be served, it is proper to effect service through an agent, for correspondence...................................................................................................	5.50
In addition, correspondent’s charges...................................................................................	10.00
or
The amount actually and reasonably charged by and paid to the person serving.
17. When more than one attendance is necessary to effect service, or to ground an application for substituted service, such further allowances may be made as the taxing officer thinks fit.
18. For service out of the jurisdiction, such allowance is to be made as the taxing officer thinks fit.

Schedule 3—continued

$
19. The amount to be allowed as fees properly paid for service of a writ, or any other document which requires personal service, shall be as follows:—
(a) If served by the nearest Marshal’s officer, the amount properly paid to the Marshal or to the officer in accordance with the scale of fees in force for the time being.
(b) If served by any other person, the amount (not exceeding the amount payable under the last preceding paragraph) actually paid to that person consistine of—
(i) the fee paid for swearing the affidavit of service;
(ii) reasonable and necessary expenses of travelling and sustenance; and
(iii) a fee of $5.00 with an additional $5.00 for each day necessarily occupied after the first day.
(c) Where more than one attendance is necessary but can be made on the same day, an additional allowance shall not be made.
(d) If served by an officer of a court in a State or Territory, the same amount as would be payable to that officer in respect of the service of process issued out of the court of which he is an officer.
20. Where service by post is authorised.....................................................................................	3.50
21. Where service is at the office of a solicitor on the record or at the address for service of a party	3.50
When any two or more documents have to be, or may be, served together, one fee only for such service may be allowed.

Appearances

22. Preparing and entering an appearance, including duplicate memorandum..............................	6.50
23. If entered at one time, for more than one person, for every defendant beyond the first............	1.00
24. Notice of appearance, for service........................................................................................	3.00

Instructions

25. To sue or defend................................................................................................................	20.00
26. To appeal, cross-appeal or oppose appeal............................................................................	20.00
27. For statement of claim........................................................................................................	20.00
28. For special case.................................................................................................................	20.00
29. For defence, or plea or demurrer.........................................................................................	20.00
30. For counterclaim or defence to counterclaim........................................................................	20.00
31. For reply, with or without joinder of issue...........................................................................	10.00
32. For confession of defence...................................................................................................	8.00
33. For special petition, or any other pleading (not being a summons).........................................	18.00
34. To amend a pleading, where necessitated by another party’s amendment of Its pleadings, or by ascertainment of additional facts.......................................................................................	6.50
35. For statement of facts is an action, or for particulars of breaches or objections in an action for infringement of a patent........................................................................................................................	18.00
36. For interrogatories or answers to interrogatories...................................................................	18.00
37. For special affidavits..........................................................................................................	18.00
38. For documents to be brought into the Registry such as accounts, etc......................................	5.00
39. For or in opposition to a motion to be made (a) in Court or (b) an application in Chambers.....	10.00
40. To add parties by order of the Court or a Justice...................................................................	4.00
41. For Counsel to advise on evidence......................................................................................	15.00
42. For bond or any other deed.................................................................................................	5.00
43. For brief on application in Chambers...................................................................................	15.00
44. For brief, such fee may be allowed as the taxing officer thinks fit having regard to all the circumstances of the case.
45. An allowance in the nature of instructions for brief may be allowed to a solicitor when he conducts the cause or matter himself.

 

Schedule 3—continued

$

46. Instructions are not to be allowed in cases where the work intended to be included therein is charged for or allowed in detail.

Instead of the charges for instructions, such larger sums may be allowed as the taxing officer may think reasonable having regard to all the circumstances.

Drawing Pleadings and Other Documents

47. Pleadings, including petitions (but not including particulars of summonses) not exceeding nine folios	12.00
or
Such amount as the taxing officer thinks reasonable.
48. Briefs, including necessary and proper observations.............................................................	5.50
or	1.00
Per folio...........................................................................................................................
49. Brief to hear reserved judgment, including copy (not allowed in Chamber applications).........	3.00
50. Notices of appeal and notices of motion..............................................................................	10.00
or
Per folio...........................................................................................................................	1.00
51. Affidavit of service of any writ or other proceedings when required......................................	5.00
52. Marking each exhibit to an affidavit....................................................................................	0.40
53. Any other necessary document, per folio.............................................................................	1.00

Copies

54. Of documents and briefs not prepared by means of roneograph, photo copying, or other duplication process where no other provision is made, per folio............................................................	0.40
55. Carbon copies, per folio.....................................................................................................	0.25
56. When a document is printed and, in the opinion of the taxing officer, it would not have been reasonably safe or convenient to send the original to the printer, the solicitor of the party printing may be allowed, for a copy for the printer, per folio.....................................................................................	0.35
57. For completing and filling in printed forms, except as otherwise provided, such allowance as the taxing officer thinks reasonable.
58. Copies made by ‘Xerox’ or like process, per page................................................................	Actual Cost

Perusals

59. Of pleadings, including petitions, amendment of pleadings, originating summonses and motions, interrogatories, answers to interrogatories, special affidavits, particulars and objections, notices to produce or admit..............................................................................................................	4.00
or
Per folio...........................................................................................................................	0.50
60.All other documents, including deeds, correspondence, exhibits, affidavits, counsel’s opinion or advice, per folio...........................................................................................................................	0.50

Attendances

61.To obtain consent of next friend or of a guardian ad litem.....................................................	5.00
62a. To inspect documents.......................................................................................................

8.00
or
Per hour...........................................................................................................................	16.00
62b.To produce documents for inspection................................................................................	4.00
or
Per hour...........................................................................................................................	8.00
63. To examine admissions, including signing...........................................................................	6.00
or
Per folio...........................................................................................................................	1.00
64. To obtain or give any necessary or proper consent or undertaking.........................................	4.00
65. To obtain an appointment to examine witnesses...................................................................	4.00
66.On examination of witnesses before an officer of the Court or other person with counsel, per hour	12.50
On examination of witnesses before an officer of the court or ether person without counsel, such allowance as the taxing officer thinks reasonable.

Schedule 3—continued

$
67. On hearing of an application in chambers without counsel such allowance as the taxing officer thinks reasonable.
68. If the examination is more than three miles from a place of business of the solicitor, such additional allowance may be made as the taxing officer thinks reasonable.
69. On deponent being sworn...................................................................................................	4.50
70. On hearing of a summons in Chambers...............................................................................	5.50
or
Per hour...........................................................................................................................	10.00
71. On counsel with brief or other papers—and to pay his fees...................................................	7.50
72. On counsel to mark refresher or to appoint conference or consultation...................................	4.00
or
If appointment made by telephone.....................................................................................	1.50
73. On consultation or conference with counsel.........................................................................	10.00
or
Per hour...........................................................................................................................	16.00
74. Examining appeal books in cases where the Registrar is satisfied it has been done with substantial efficiency, per hour..........................................................................................................	8.40
75. (Examining the proof print, per folio (not allowable where print taken from authorized reporting service)........................................................................................................................................	0.25
76. To enter or set down cause, special case or appeal for trial or hearing....................................	4.50
77. In Court on hearing of motion, originating summons, special case, petition, appeal or matter or issue of fact—
if the solicitor attends, per hour.........................................................................................	20.00
or
Not to exceed per day.......................................................................................................	100.00
or
if a managing clerk attends in place of the solicitor, per hour...............................................	10.00
or
Not to exceed per day.......................................................................................................	50.00
if any other clerk attends in place of the solicitor, per hour..................................................	5.00
78. When in the opinion of the taxing officer it is necessary for two solicitors, or for the solicitor and managing clerk, to attend the hearing or the trial of a cause or matter, an additional allowance may be made per hour of..............................................................................................................	10.00
79. When in the opinion of the taxing officer it is necessary for a clerk other than a managing clerk to attend the hearing or the trial of a cause or matter with the solicitor or a managing clerk where witnesses are examined or cross-examined, an additional allowance may be made per hour of...................	5.00
80. Where the taxing officer is satisfied that a solicitor carries on business in a place other than that in which the Court is sitting and that it is necessary for him to leave that place to attend in Court at the hearing or the trial of a cause or matter, an allowance (in addition to reasonable travelling expenses) may be made for each day (other than Saturdays and Sundays) that he is necessarily absent of such amount as the taxing officer thinks reasonable, not exceeding.............................................................	60.00
or
If a clerk attends in place of the solicitor, a similar daily allowance (in addition to reasonable travelling expenses) may be made, not exceeding..............................................................................	30.00
The taxing officer must be satisfied that the purpose of the journey could not have been satisfactorily accomplished by an agent.
81. On calling of list in Court...................................................................................................	10.00
82. To certify a document or record..........................................................................................	4.20
83. To hear reserved judgment.................................................................................................	7.35
84. On taxing of bill of costs—
(a) if the solicitor attends, per hour...............................................................................	16.00
(b) if a clerk attends, per hour.......................................................................................	6.50
85. To obtain signature of the Registrar to an order made in Chambers or to obtain signature to and sealing of an order made by the Court...........................................................................................	4.00
86. To file, lodge or deliver a document or other papers, to obtain an appointment from an officer of the Court, to insert advertisements or other attendance of a similar nature capable of performance by a junior clerk......................................................................................................................	4.00

Schedule 3—continued

$
87. At Registry, in connexion with the payment of money into or out of Court............................	4.00
88. To search whether an appearance has been entered or a document has been filed...................	4.00
89. To bespeak and for copy of jury panel, or any other document necessarily ordered from an officer of the Court...............................................................................................................................	4.00
90. Before the Registrar to settle minutes of judgment or order or the like—
(a) if the solicitor attends, per hour....................................................................................	12.50
(b) if a clerk attends, per hour...........................................................................................	4.00
91. Any other attendance of the solicitor or a managing clerk involving the exercise of skill or legal knowledge, per hour
Solicitor...........................................................................................................................	18.00
Managing Clerk...............................................................................................................	9.00
92. An attendance for which no other provision is made.............................................................	5.00
or
Such amount as the taxing officer thinks reasonable.
92a. Telephone attendance.......................................................................................................	1.50

Letters

93. An ordinary letter (including letters between principal and agent).........................................	3.00
94. Special Letters...................................................................................................................	5.00
or
Such allowance as the taxing officer thinks reasonable.
95. Circular letters after the first...............................................................................................	1.00
or
Such allowance as the taxing officer thinks reasonable.
An allowance may also be made, if the circumstances warrant it, for the necessary expense of postage, carriage and transmission of documents.
95a. Letters making an appointment, forwarding cheque or documents without comment or to like effect	1.75

Views

96.Inspection of view, such fees shall be allowed as the taxing officer considers necessary, including all fees paid for travelling and sustenance.

Maps, Plans, Photographs and Models

97.The taxing officer may allow such fees for maps, plans, photographs and models for use at the trial as he considers reasonable.

Witnesses Expenses

98. Witnesses called because of their professional, scientific or other special skill or knowledge……………………………………………………………………………	15.00
to
75.00
Witnesses generally…………………………………………………………………	12.00
Or, if remunerated in their occupations by wages, salary or fees, the amount lost by the witness by the attendance of the witness, not exceeding $16.00 per day of attendance.
Witnesses attending in more than one action or matter will be entitled to a proportionate part only of their expenses in each action or matter.
A witness shall be deemed to be a country witness if he does not reside within twenty-five miles of the court house where the cause or matter is tried or heard.
In addition to the above allowances, country witnesses may be allowed such sum as the taxing officer thinks reasonable to provide for actual expenses of conveyance to and from the place of trial or hearing and a reasonable amount for maintenance or sustenance.
The taxing officer may also allow such amount as he thinks reasonably and properly incurred and paid to witnesses for qualifying to give skilled evidence,
Notwithstanding anything in the scale, the taxing officer may allow to an expert witness a special fee for any attendance at Court not covered by the foregoing paragraphs of this item when the witness is acting as an expert in assisting counsel or a solicitor for a period during the trial or hearing. The scale in this item does not effect the existing practice of allowing qualifying fees to witnesses.

Schedule 3—continued

Disbursements

99. All court fees, counsel’s fees and other fees and payments to the extent to which they have been properly and reasonably incurred and paid shall be allowed.

The remuneration allowed to a solicitor shall be governed by the foregoing scale but in special cases the taxing officer may in his discretion allow such additional charges or disbursements as he considers reasonable.

In the abovementioned scale of costs the words “ the solicitor ” shall mean the solicitor on the record, his partner or his agent or his agent’s partner.

G. E. BARWICK C.J.

EDWARD A. McTIERNAN J.

DOUGLAS I. MENZIES J.

C. A. WALSH J.

H. T. GIBBS J.

N. M. STEPHEN J.

A. F. MASON J.

(L.S.)

L. B. FOLEY

 

Principal Registrar.