High Court Rules (Amendment) (Cth)
We, Justices of the High Court of Australia, hereby make the following Rules of Court under the
Judiciary Act 1903 as amended.Dated this First day of December 1986.
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FRANK JONES
Registrar
1. These Rules shall come into operation on the 1st January 1987.
2. The High Court Rules are amended as follows:
(1) Order 58 rule 8 is amended by deleting sub-rule (2) and inserting the following sub-rule:
(2) Any person shall, on payment of the prescribed fee, be entitled, during office hours, to search for, inspect and take a copy of any documents filed in an office of the Registry, except:
(i) affidavits other than an affidavit which serves as an originating process, and
(ii) the annexures and exhibits to any affidavit prior to the admission of any such affidavit, annexure or exhibit in evidence in Court.
(2) After Order 69 the following Order is inserted:
ORDER 69A
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 special leave to appeal to the Court;
‘Court below’ means the Court 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;
‘respondent’, in relation to an application, means a person who is required to be served with the application.
2. An application shall be made in the form numbered 61 in the First Schedule.
3. (1) An application shall be filed within 21 days after the judgment below was pronounced.
(2) 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.
4. (1) An application shall be supported by an affidavit setting out briefly:
(a) the facts on which the application is based;
(b) the grounds on which the judgment below is sought to be challenged;
(c) the specific questions of law, if any, raised by the application;
(d) the reasons why special leave to appeal should be granted.
(2) Exhibited to the affidavit in support of the application shall be:
(a) the judgment of the Court or judge below;
(b) the reasons for the judgment below;
(c) such other documents, if any, as are necessary for the proper determination of the application; and
(d) a draft notice of appeal setting out the grounds of appeal to be relied upon in the event that special leave to appeal is granted.
(3) The affidavit shall be in the form numbered 62 in the First Schedule.
5. (1) An application and affidavit in support shall be served on each person who was a party to the proceedings in the Court below within the time limited by rule 3(1).
(2) Service of an application and affidavit in support 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 proceeding from which the application is brought.
(3) A copy of the application shall be lodged with the Prothonotary, the Registrar or other proper officer of the Court below within, the time limited by rule 3 (1).
6. (1) An application shall bear a note that, before taking any steps in the proceeding, the respondent shall, within 14 days after service of the application, enter an appearance in the office of the Registry in which the application is filed and serve a copy on the applicant.
(2) The appearance shall be made in the form numbered 63 in the First Schedule.
7. (1) For the purposes 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) (a) The Registrar shall furnish a copy of the index to each party to the application.
(b) A copy of an index may be sent by post or by fascimilie transmission.
(c) 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.
(5) The applicant shall prepare an application book in the like manner and form as is required in the case of an appeal book in Order 70.
(6) Within 30 days after the receipt of the index, or such further time as a Justice or the Registrar may order or direct, the applicant shall prepare and file 7 copies of the application book and supply three copies to each respondent.
(7) 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.
8. (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 sub-rule (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.
9. (1) An applicant may discontinue his 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, 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) Sub-rules (2) and (3) apply only to applications for special leave to appeal in civil matters.
10. (1) Where the application books are not filed within the time prescribed in accordance with rule 7 (6), the application shall be deemed to be abandoned, unless the Court or a Justice otherwise orders, and such order may be made after the prescribed time.
(2) A certificate of deemed abandonment shall be provided by the Registrar and thereupon sub-rules (2) and (3) of rule 9, with the necessary adaptation, shall apply.
11. An application for special leave to appeal shall be made to a Full Court by counsel.
(3) Order 70 is repealed and replaced by the following Order:
ORDER 70
1. In this Order, unless the contrary intention appears:
“appeal” means an appeal to the Court;
“appellant” in relation to an appeal, means the person appealing;
“certificate to appeal” means a certificate granted by the Full Court of the Family Court under Section 95 of the
Family Law Act ;“Court below” means the Court pronouncing the judgment below;
“judge” includes a Justice of the High Court of Australia;
“judgment” includes an order, a conviction and a sentence;
“judgment below”, in relation to an appeal, means the judgment from which the appeal is brought;
“Justice” means a Justice of the High Court of Australia;
“respondent”, in relation to an appeal, means a person who has been served with a notice of appeal.
2. (1) An appeal shall be instituted by filing a notice of appeal.
(2) A notice of appeal shall:
(a) be in the form numbered 65 in the First Schedule;
(b) state the name of the Court below, or the judge pronouncing the judgment below, and the date when the judgment below was given;
(c) where applicable, state the date on which special leave or a certificate to appeal was granted;
(d) when special leave has been granted on terms, set out the particulars of those terms;
(e) state whether the whole, or part only and what part, of the judgment below is appealed from;
(f) briefly, but specifically, set out the grounds of appeal which, where applicable, shall not depart from those set out in the draft notice of appeal furnished to the Court on the hearing of the application for special leave to appeal, unless the Court or a Justice otherwise orders.
(g) specify the nature of the order that the appellant contends should be made by the Court, including any special order as to costs.
3. A notice of appeal shall be filed within 21 days after:
(1) the grant of special leave to appeal;
(2) the grant of a certificate to appeal; or
(3) the date of the judgment below
whichever is the latest.
4. A notice of appeal shall be filed in the office of the Registry in the State or Territory in which the proceedings in the Court below were commenced.
5. (1) A notice of appeal shall be served on each person named as a respondent to the appeal within the time limited by rule 3.
(2) The Court or a Justice may direct that the notice of appeal be served on any other person who shall thereupon be added as a party to the appeal.
(3) Unless the appeal is from a Justice, a copy of the notice of appeal shall be lodged with the Prothonotary, the Registrar or other proper officer of the Court below within the time limited by rule 3.
(4) Service of a notice of appeal may be effected in any manner provided by these rules for the service of documents, or by leaving a copy at the address for service, if any, of the parties to be served in the proceedings from which the appeal is brought.
6. (1) A respondent who desires to appeal from a part of the judgment below, or who seeks a variation of a part of that judgment, may, within 14 days after service upon him of the notice of appeal, file a notice of cross-appeal.
(2) A notice of cross-appeal shall:
(a) be in the form numbered 66 in the First Schedule;
(b) state what part of the judgment below the respondent cross-appeals from, or contends, should be varied;
(c) briefly, but specifically, set out the grounds relied upon in support of the cross-appeal;
(d) specify the relief which the respondent seeks in lieu of the order of the Court below or the variation of that order which he seeks.
(3) Rules 13 and 15 of this Order apply with the necessary adaptation to a cross-appeal.
(4) A cross-appellant will be entitled to proceed with the cross-appeal only if special leave, which may be sought when the appeal is called on for hearing, is granted.
(5) It is not necessary to give notice of cross-appeal if a respondent contends that some matter of fact or law has been erroneously decided and does not seek a discharge or variation of a part of the judgment, decree, order or sentence actually pronounced or made, but he shall file and serve,
within the time limited by sub-rule (1), a notice of such contention in the form numbered 67 in the First Schedule.
7. (1) The Court or a Justice may, at any time on the application of a respondent to an appeal, order that the appellant give security, within a time to be limited by the order and in such amount as the Court or a Justice may fix, for the prosecution of the appeal without delay and for the payment of such costs as may be awarded by the Court to the respondent.
(2) Security may be given by payment into Court or in such manner as the Registrar may approve.
(3) The appellant shall, upon giving any security, forthwith serve upon the respondent written notice of the time when, and manner in which, the security was given.
(4) If security is not given in accordance with the order, the Court or a Justice may, on the application of any respondent, direct that the appeal be dismissed.
(5) In any case, the Court or a Justice may reduce or increase the amount of security, or otherwise vary or rescind an order already made relating to security.
8. (1) Unless the Court or a Justice otherwise orders, an appeal shall not operate as a stay of proceedings.
(2) In any case, where a stay of proceedings has been ordered, the Court or a Justice may make an order removing the stay, wholly or in part, and upon such terms and conditions as the Court or a Justice thinks fit.
9. (1) The appellant shall, within 14 days of the institution of an appeal, lodge the following documents with the office of the Registry:
(a) a copy of the appeal book or documents before the Court or judge below; and
(b) a list of exhibits before the Court or judge below together with the exhibits.
(2) Where an exhibit cannot be so lodged, the appellant shall state the circumstances in writing and give such information as he can to enable the Registrar to cause the exhibit to be available to the Court.
10. (1) When the documents mentioned in the preceding rule have been received in the office of the Registry, the Registrar shall appoint a time, date and place for the settling of the index and notify the parties.
(2) The appellant shall, within 7 days of being notified of the appointment, prepare and file a draft index of the proposed contents of the appeal book in the office of the Registry.
(3) The appellant shall serve the draft index on the respondent a reasonable time before the appointment to settle the index.
11. (1) The Registrar and the parties in settling the index shall have regard to the issues of fact and of law that appear from the grounds of appeal as set out in the notice of the appeal or cross appeal.
(2) The Registrar and the parties shall endeavour, in settling the index, to:
(a) exclude from the appeal book documents that are irrelevant or unnecessary; and
(b) reduce, as far as possible, the number and the length of documents to be included in the appeal book taking care to avoid the repetition of merely formal parts of documents and unnecessary duplication.
(3) Within 7 days after the index has been settled, the appellant shall file in the office of the Registry a clean copy of the index as settled.
(4) Where an appeal is pending in an office of the Registry, other than Canberra, Melbourne or Sydney, an index may, with the consent of all parties, be settled by the Registrar in the absence of the parties.
(5) (a) Where the index has been settled in the absence of the parties, the Registrar shall serve a copy of the index on each party by post or facsimile transmission.
(b) 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.
(6) If any party is dissatisfied with the index as settled, the Registrar may, if he thinks it necessary, obtain the direction of a Justice.
12. (1) The appeal book shall, unless a Justice or the Registrar otherwise orders or directs, be prepared by the appellant in accordance with this rule.
(2) The appeal book shall be printed or reproduced by a photocopying, roneograph, or some other multigraphing process which gives uniform copies of pages in a clear and legible type.
(3) The pages of the appeal book shall be numbered consecutively, the size of the pages of the book shall be International Size A4 and, where the book exceeds 300 pages, it shall be bound in separate volumes of not more than 250 pages.
(4) The contents of the appeal book shall be printed, or otherwise reproduced, upon one side of the paper with a 5 centimetre margin upon the left hand side of each page and every fifth line numbered in the margin. The book may be bound by means of either a flexibinding or spiral binding process.
(5) The appeal book shall have a title page setting out the full and correct title of the proceedings, including the title of the Court below, names of the solicitors for each party, the address for service of each party, and the telephone, telex, facsimile and reference number of each party.
(6) After the title page of the appeal book, there shall follow an index, consisting of a complete list of documents contained in the record before the Court, as settled under rule 11 of this Order, indicating, in the case of each document, whether its text is reproduced and included in the book or not, and, if it is reproduced and included, indicating the page of the book on which it appears.
(7) The index to an appeal book shall comply with the index prepared under rule 11 of this Order.
(8) The index shall give the date of each document and shall give, in the case of exhibits, the exhibit mark and, in the case of documents marked only for identification, the exhibit mark with the letters “m.f.i.” following the exhibit mark.
(9) In the index, the exhibits shall be arranged in the order in which they have been lettered or numbered and there shall be a reference to the page of the appeal book on which the tendering of exhibits is recorded.
(10) Where the appeal book is bound in 2 or more volumes, each volume shall contain, at the beginning thereof, an index of the entire book, unless otherwise directed by the Registrar.
(11) The documents in an appeal book shall be arranged in the following order:
(a) process and pleadings;
(b) evidence, oral and affidavit;
(c) testimony taken on commission or before an examiner and put in, or used as, evidence; and
(d) exhibits
(i) Exhibits shall be arranged, not in the order in which they have been lettered or numbered as exhibits, but in chronological order according to the dates borne by the documents or, in the case of manifestly or admittedly misdated documents, their known dates.
(ii) If a document is undated it shall be placed in the sequence contended for by the appellant, but the appellant shall inform the respondent of the position, or order, proposed for the document and the respondent may require that a note “Date
and order disputed” be inserted in the transcript at the head of the document.
(iii) If the exhibits include correspondence between, or among, two or more persons which should be read consecutively and not interspersed among other documents, the documents forming the correspondence may be arranged in chronological order and given a position together, at a convenient place, in relation to the other exhibits.
(iv) Interrogatories, answers and affidavits of documents shall not be copied, except so far as they were put in evidence.
(e) The reasons for judgment of the primary judge or Court.
(f) The formal judgment of the primary judge or Court.
(g) The notice of appeal, if any, from that judgment to a Court other than the Court.
(h) If the judgment below is that of a Court exercising appellate jurisdiction:
(i) The reasons for the judgment below.
(ii) The formal order of the Court below.
(i) Order of the Court granting special leave to appeal or the certificate of appeal, if applicable.
(j) The notice of appeal to the Court.
(k) A certificate that the transcript has been examined and is correct, signed by the solicitors for the parties.
(12) The date and a short description of the nature of each document shall precede it, but formal headings should not be printed, or copied, and “jurats”, formal identification of exhibits, and the like, should be omitted.
(13) The appeal book shall be prepared and produced in a manner satisfactory to the Registrar.
(14) Unless a Justice or the Registrar otherwise orders or directs, the appellant shall file 10 copies of the appeal book in the office of the Registry and deliver three copies to each respondent within 21 days after the date on which the index is settled under rule 11 of this Order.
(15) One of the 10 copies of the appeal book, referred to in the last preceding sub-rule, shall be an examined copy with a certificate by the parties, or their solicitors, that it has been examined and is correct.
13. (1) An appellant may discontinue an appeal by filing a notice of discontinuance, in the form numbered 68 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 appellant shall pay the respondent’s costs in respect of the appeal 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.
14. (1) At any time, after the filing of the notice of appeal, 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 sub-rule (1) may be given without a hearing provided that the Registrar may, at any time, issue a summons requiring the parties to attend before the Registrar, and any party may apply, at any time, for an appointment with the Registrar.
15. (1) When an appellant has not done any act required to be done by or under these Rules, or otherwise has not prosecuted the appeal with due diligence, the Court or a Justice may:
(a) order that the appeal shall be dismissed for want of prosecution;
(b) fix a time for the doing of an act and, at the same time, order that upon non-compliance the appeal shall stand dismissed for want of prosecution or, subsequently and in the event of non-compliance, order that it be so dismissed; or
(c) make any other order as may seem just.
(2) The Court may make an order under sub-rule (1):
(a) on application by a respondent on notice; or
(b) of its own motion after notice has been given by the Registrar to the appellant.
(3) An order under paragraph 1 (b) may be varied at any time before the appeal stands dismissed for want of prosecution and, in special circumstances, may be varied or revoked after that time.
16. An appeal from the refusal by a Justice of an ex parte application shall be brought within the time and in the manner prescribed by this Order, except if there is no person interested in resisting the application, or affected by the relief sought, service of the notice of appeal and of other process or notices is not required.
(4) The First Schedule is amended by including the Forms set out in Schedule 1 to this Rule:
O. 69a r. 2 | |
IN THE HIGH COURT OF AUSTRALIA | |
[SYDNEY] OFFICE OF THE REGISTRY | |
No. | of 19 |
BETWEEN: | |
Applicant | |
[Respondent] | |
—and— | |
Respondent | |
[Applicant] |
1. The Applicant applies for special leave to appeal from [specify part or whole] of the judgment of [specify Court or judge below] given on [specify date].
2. The grounds of the application appear in the supporting affidavit of [John Doe] sworn or affirmed on [date] 19 .
Dated the | day of | 19 |
……………………………………………… (Signed, Solicitor, or Applicant) |
TO: The Respondent (address)
TAKE NOTICE: Before taking any step in the proceedings you must, within FOURTEEN 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]
(Heading as in Form 61)
I of [description of deponent’s occupation
or office] make oath [or affirm] and say as follows [in numbered paragraphs]:
1. [concise statement of factual circumstances on which the application is based]
2. [concise statement of the grounds on which the judgment below is sought to be challenged]
3. [the specific questions of law raised by the application]
4. [the reasons why those questions of law are sufficiently important to justify the grant of special leave to appeal]
5. [the reasons which are relied upon, including reference to any relevant decisions, in support of the contention that the judgment below was wrong in relation to the questions set out in paragraph 3]
6. [any other reasons why special leave to appeal should be granted]
[Exhibits are to be exhibited to,
not annexed to, the affidavit]SWORN [affirmed] etc.
This affidavit is filed on behalf of [applicant].
O. 69a r. 6 (2)
(Heading as in Form 61)
I [John Doe] intend to appear on the hearing of the application for special leave to appeal to [oppose or support] the application.
Date the | day of | 19 |
……………………………………… (Signed, Solicitor, or Applicant) |
TO: The Applicant (address)
THE RESPONDENT’S SOLICITOR IS: [name of firm and address for service]
(Heading as in Form 61)
The Applicant [John Doe] discontinues [his or its] application for special leave to appeal.
Date the | day of | 19 |
………………………………………. (Signed, Solicitor, or Applicant) |
TO: The Respondent (Address)
IN THE HIGH COURT OF AUSTRALIA
[SYDNEY] OFFICE OF THE REGISTRY
No. of 19
[or, where applicable, from a Justice]
BETWEEN: |
Appellant |
—and— |
Respondent |
NOTICE OF APPEAL
1. The appellant appeals [pursuant to special leave to appeal granted on [specify date]] from [specify whole or part and which part] of the judgment of [specify Court or judge below] given on [specify date].
2. [Specify briefly the grounds of appeal]
3. [Specify the judgment sought in lieu of that appealed from including any special order as to costs]
Dated the | day of | 19 |
…………………………………. (signed, solicitor or appellant) |
TO: The Registrar
[Court appealed from]
AND TO: The Respondent and his Solicitor [John Doe] [address]
THE APPLICANT’S SOLICITOR IS: [name of firm and address of service]
O. 70 r. 6 (2) (a)
(Heading as in Form 65)
1. Subject to the grant of special leave, the respondent cross-appeals from [specify part] of the judgment of [specify Court or judge below] given on [specify date].
2. [Specify briefly the grounds of the cross-appeal]
3. [Specify the judgment sought in lieu ofthat appealed from)
Dated the | day of | 19 |
..…………………………………. (signed, solicitor or appellant) |
TO: The Respondent (address)
THE APPLICANT’S SOLICITOR IS: [name of firm and address of service)
(Heading as in Form 65)
The respondent wishes to contend that the decision of the Court below should be affirmed but on grounds other than those relied upon by the Court below.
GROUNDS
1. [Specify briefly the grounds) | ||
2. | ||
Dated the | day of | 19 |
……………………………………. Solicitor for the Respondent |
TO: The Appellant A.B. and his Solicitor [John Doe]
(Heading as in Form 65)
The appellant [John Doe] discontinues [his] appeal.
Dated the | day of | 19 |
..………………………………….. (signed, solicitor or appellant) |
TO: The Respondent (address)
1. Notified in the
2. Statutory Rules 1952 No. 23 as amended to date. For previous amendments
see Note 2 to Statutory Rules 1986 No. 22 andsee also
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