High Court Rules (Amendment) (Cth)
F.R.L.J.
2001B00426
Statutory Rules
1977 No. 41 HIGH COURT OF AUSTRALIA
RULE OF COURT* AMENDING THE HIGH COURT RULESt
(As of Thursday the 3rd day of March 1977)
PURSUANT to the
After Order 70, the following Order is inserted:—
“ ORDER 70a
“ NAURU APPEAL RULES
” 1. This Order applies to all proceedings in the Court under the
Nauru Application o f
t t i. Order. |
“ 2. Subject to this Order the provisions of the other Orders of these Rules, Application of
other than Order 70 (except rule 2 3 thereof) apply so far as is practicable to °““r0rdcr*·
proceedings to which this Order applies.
“ 3. The Court or a Justice may at any time direct that legal aid be granted Legal aid.
to an appellant or an applicant for leave to appeal in accordance with the pro visions with respect to legal aid of the Appeals Act 1972 of the Republic of Nauru.
” 4. (1) Every appeal shall be instituted by the filing of a notice of appeal Mode o f
in the manner prescribed in rules 5 and 6 of this Order. | appcaS?* |
“ (2) The notice of appeal shall state—
(a) whether the whole or part only, and what part, of the judgment is
205; and 1976, No. 44. |
appealed from;
(b)
briefly, but specifically, the grounds relied upon in support of the appeal; and
(c) what judgment the appellant seeks in lieu of that appealed from.
“ 5. (1) The original notice of appeal shall be filed in the Principal Registry, rnfagju id ^
“ (2) A copy of the notice of appeal shall be lodged forthwith in the Office ofareee1·
of the Registrar of the Supreme Court of Nauru.
* Notified (n the
Australian Government Gaxelle on 28 March 1977.
t Statutory Rules 1952. No. 23
as amended by Statutory Rules 1953, Nos. la n d 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, New. 94 and |
112
High Court Rules “ (3) The notice of appeal shall be served within twenty-one (21) days of the date of filing upon every party to the proceedings appealed from affected by the relief sought by the notice of appeal or interested in maintaining so much of the judgment as is appealed from.
“ (4) The Court or a Justice may direct that the notice of appeal be served on any other person.
(5) Service of a notice of appeal 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 appeal is brought.
M
Time for filing
notice o f
“ 6. (1) The notice of appeal shall be filed—
appeal.
(a) within thirty (30) days after—
(i) the date when the judgment appealed from was pronounced;
(ii) the date when leave to appeal was granted; or
(in) any later date fixed for the purpose by the Supreme Court o f
Nauru or a Justice thereof; or
(b)
within such further time as is allowed by a Justice upon application made to him by summons within the said time of thirty (30) days limited for filing a notice of appeal.
14 (2) Notwithstanding Order 60 rule 6 the summons mentioned in the last preceding sub-rule shall be issued within the period of thirty (30) days fixed by that sub-rule but the Full Court o r a Justice for special reasons may upon application by motion grant an enlargement of time although the application for it is not made until after the expiration of the said period of thirty (30) days.
Appeal by | “ 7. (1) If the appeal is brought by leave of the High Court, the notice of |
leave: |
notice of | appeal shall so state, and a copy of the order giving leave to appeal shall be |
appeal to state | annexed to the copy lodged in the Supreme Court of Nauru and to every copy |
so. | of the notice of appeal served. |
Notice of | “(2) If the appeal is brought without leave, then, within the time limited stating facts which show that an appeal lies without leave and a copy of the affidavit shall be served upon the parties upon whom the notice of appeal is to be served. |
appeal as of | |
right to be sup | for filing the notice of appeal, an affidavit shall be filed in the Principal Registry |
ported by | |
affidavit. |
objection to | “ 8. (1) If a respondent objects to the competency of an appeal, he shall, |
competency o f | within twenty-one (21) days after service upon him of the notice of appeal, file |
B,pe * | in the Principal Registry a notice of objection stating briefly the grounds of his objection, and serve upon the appellant a copy of the notice. |
“ (2) If notice of objection has not been so given but nevertheless the appeal is afterwards dismissed by the Court as incompetent, the respondent shall not, unless upon special grounds the Court otherwise orders, receive any costs of the appeal, and the Court may order that he pay to the appellant any costs o f the appeal proving useless or unnecessary. | |
“ (3) Within twenty-one (21) days after service upon him of the notice of objection, the appellant shall set down the objection for hearing and, on the day on which he sets it down, he shall give notice of the setting down to the opposite party. |
High Court Rules 113
“ (4) If the appellant fails to set down the objection for hearing as required by the last preceding sub-rale, his appeal shall be deemed to be abandoned as on the twenty-second day after service of the notice of objection, and the respondent may thereupon tax his costs of the appeal and they shall be paid by the appellant.
“ (5) The appellant may set down the objection for hearing at his discretion before a Justice o r a Full Court, and, in the latter case he may also file in the Principal Registry a notice that he intends at or after the hearing of the objec tion to apply for leave to appeal,
“ (6) A copy of a notice filed under the last preceding sob-rule shall be served on the respondent with the notice of setting down.
“ (7) An objection to the competency of an appeal shall be set down for hearing at the sittings of the Court appointed to be held at the Principal Registry next after the given setting down.
" (8) Upon the hearing of the objection, the burden of establishing the competency of the appeal is upon the appellant.
“ (9) Any party may file affidavits to be read on the hearing of the objection.
“ (10) When an objection to the competency of an appeal is disallowed, the Court may by order fix the time and place for hearing the appeal.
14 (11) Unless an order is made under the last preceding sub-rale, the appel lant upon disallowance of the objection shall proceed in accordance with the provisions of rule 14
et seq. and the date on which the objection to competency is disallowed shall be substituted for the date on which the copy notice of appeal was lodged in the Office of the Registrar of the Supreme Court of Nauru.
” 9. (1) A respondent who desires to appeal from a part of the judgment from which the appellant has appealed, or to seek a variation of a part of the judgment, need not institute a substantive appeal, but he shall, within thirty (30) days after the service upon him of the notice of appeal, or within such further or other time as the Court or a Justice, pursuant to Order 60 rule 6 of these Rules, may fix, file in the Principal Registry a notice of cross-appeal and serve a copy of the notice upon the appellant and any other person affected by the relief which he seeks. | Cross-appeal. |
“ (2) The notice of cross-appeal shall state from what part of the judgment the respondent cross-appeals and shall state briefly, but specifically, the grounds of the cross-appeal and— |
(a) the relief which he seeks in lieu of the order cross-appealed from; or
(b) the variation of that order which he seeks.
“ (3) It is not necessary to give notice of cross-appeal if a respondent pro poses to contend that some matter of fact or law has been erroneously decided against him but does not seek a discharge or variation of a part of the judgment, decree, order or sentence actually pronounced o r made.
4410. (1) Subject to the provisions of this rule an application for leave to appeal may be made either | Application foi |
leave to appeal. | |
44 (2) If leave to appeal is sought | |
application. | |
of the Court at the Principal Registry occurring after two months from the date when the judgment was pronounced from which it is sought to appeal. |
“ (3) The application shall be made upon notice— | Application |
notice. |
(a)
if the Court or a Justice so directs; or
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High Court Rules
(b) | if a party interested to maintain the judgment from which it is sought to appeal gives notice in writing to the applicant that he desires to be heard in opposition to, or upon a question arising out of, the application for leave to appeal; or |
(c) | if the application is by a prisoner or accused person or by the Director of Public Prosecutions of the Republic o f Nauru for leave to appeal from a judgment, order or sentence pronounced or made by the Supreme Court of Nauru in the exercise of its jurisdiction by way of criminal appeal. |
“ (4) (a) Notice of an application for leave to appeal may be for any day fixed for the hearing of motions at the sittings of the Court at the Principal Registry but the Court o r a Justice may expedite the hearing of the application or fix any other time o r place.
(b) | Notice of an application for leave to appeal shall be filed in the Principal Registry and a copy shall be served within twenty-one (21) days of the date of filing upon every party to the proceedings appealed from affected by the relief sought in the proposed appeal or interested in maintaining so much of the judgment as it is sought to appeal from. In the case of an application pursuant to sub-rule (3) (c), tile notice shall be served upon the prisoner or accused person o r the Director of Public Prosecutions of the Republic of Nauru as the case may be. |
(c) | Subject to Order 60, rules 4 and 6, notice of an application for leave to appeal shall be filed within thirty (30) days after the date when the judgment was pronounced from which it is sought to appeal or, if the application is made pursuant to the direction of the Court under sub-rule (3) (a) or pursuant to notice given by a party under sub-rule (3) (b), within thirty (30) days after the date when the direction or the notice was given. |
Affidavit in | 11 (5) An application for leave to appeal whether made |
support o f | |
application. | |
Application by |
written c a n or
“ (6) An applicant for leave to appeal may present his case and his argument
by counsel. | to the Court in writing pursuant to rule 12 if he so desires, and, if he does not do so, his application shall be made to the Court by counsel. |
Title n f pro | “ 11. (1) The documents in an application for leave to appeal, or for an extension of time under rules 5 and 6 of this Order for filing or serving a notice |
ceedings.
of appeal, shall be entitled ‘ In the High Court of Australia 4 Principal Regis try ’, and in the matter of the proceedings, which shall be described as pending in the Supreme Court of Nauru.
“ (2) A notice of appeal and all subsequent proceedings in an appeal shall be entitled ‘ In the High Court of A u s t r a l i a ‘Principal Registry’, ‘ On appeal from the Supreme Court of N auru’ and shall also be entitled as between the party appellant and the party respondent.
Use o f written
“ 12. (1) Within fourteen (14) days of the date of service of the notice of
case on appli
cation for leave | application for leave to appeal an applicant who desires to present his case and |
to appeal. | argument in writing shall give notice in writing to the other parties that he pro poses to prepare and file a written case. |
High Court Rules 115
“ (2) Each party shall thereupon, unless the Court or a Justice otherwise directs, prepare a written case consisting of paragraphs consecutively numbered and stating as concisely as possible the circumstances out of which the appeal arises, the contentions to be urged by him and the reasons relied upon.
“ (3) So far as practicable, in a written case references to the portions of
the transcript relied upon shall be given by page and tine and extracts shall not
be
set .out
“ (4) Not later than twenty-eight (28) days after the receipt of the notice, each party shall lodge in the Principal Registry four (4) copies of his case for the use of the Justices upon the hearing of the appeal or application for leave to appeal and file in the Principal Registry one (1) copy of his case.
“ (5) The written case for the applicant for leave to appeal shall be in a cover coloured blue and for the respondent in a cover coloured red.
“ (6) When a party has lodged his case, he shaU on the day of lodging it give written notice to the other party that he has done so.
“ (7) When all parties have lodged their cases, they shall exchange copies with one another.
“ (8) Each party is entitled to three (3) copies of the other’s case.
" (9) Where the parties present their cases in writing, there shall be no appearance by or on behalf of any party unless the Court or a Justice other wise directs.
“ 13. (1) When, in the Supreme Court of Nauru, a judgment is given .from which an appeal may be brought to the High Court, the officer of that Court who has the custody of exhibits put in evidence or documents marked for identi fication shall, subject to the directions of that Court—
(a) | retain them for thirty (30) days from the giving of the judgment; and |
(b) | if, before the expiration of that thirty (30) days, application for leave o r special leave to appeal to the High Court from the judgment is made, retain them until thirty (30) days from the date when the leave is given, has elapsed. |
“ (2) Upon an appeal to the High Court being instituted, a list of the exhibits put in evidence and of documents marked for identification shall be made out and certified by the officer of the Court who has custody of those exhibits, or by some other proper officer of that Court, and the list and the exhibits and documents shall be transmitted to the Principal Registry.
“ (3) If for any reason an exhibit cannot be so delivered or transmitted, the officer shall, in his certificate, state the circumstances and give such information as he can to enable the Principal Registrar to cause the exhibit or document to be available to the High Court,
” 14. Within twenty-one (21) days of the date, of the lodgment of the Transmission o i
copy of the notice of appeal in the Office of the Registrar of the Supreme Court S f f lS 1**0
of Nauru the Registrar of the Supreme Court of Naum shall transmit to the *******
Principal Registry—
(a) a certified copy of the reasons for the judgment appealed from;
(b) a certified list of and certified copies of—
(i) the pleadings; and
(ii) the other documents which were before the Court; and
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High Court Rules
(c)
a copy of the transcript of the oral evidence given before the Court
or a copy of the notes of evidence taken by or for the Judge,
in addition to the documents to which rule 13 of this Order applies.
Preparation of | “ 15. (1) When the documents mentioned in the preceding rule have been “ (2) The appellant shall within fourteen (14) days of being so notified lodge in the Principal Registry a draft index of the contents which shall con stitute the appeal book before the High Court and the Principal Registrar shall appoint a time, date and place for settling the index. |
index. | received in the Principal Registry the Principal Registrar shall notify the appellant. |
“ (3) The Registrar may vary the index as he thinks proper and if any party is dissatisfied with the index as settled the Principal Registrar may if he thinks it necessary obtain the direction of the Chief Justice or if the Chief Justice is unavailable of the senior Justice who is available. | |
“ (4) Seven (7) days’ notice of the time appointed for the settlement of the index, together with a copy of the draft index, shall be given to the respondent or to his solicitor. | |
“ (5) Within seven (7) days after the index has been settled the appellant shall file in the Principal Registry a clean copy of the index as settled. |
Preparation of | “ 16. The appeal book for use upon the hearing of an appeal shall, unless the |
appeal book. | visions of Order 70 rule 23 so far as they are applicable. |
Filing and | |
serving appeal | “ 17. (1) Within twenty-eight (28) days of filing the settled index the appellant shall file in the Principal Registry one copy of the appeal book and shall lodge four (4) copies for the use of the Justices upon the hearing of the appeal. |
books. | |
“ (2) The appellant shall serve upon each of the respondents separately represented three (3) copies of the appeal book. |
[down | “ 18. (1) At the time of filing the appeal book the appeal shall be set down, unless it is otherwise ordered by the Court or a Justice, for hearing at the first sittings of the Court appointed to be held at the Principal Registry. | ||
| |||
lant to the respondent. | |||
“ (4) If an application in writing signed by all the parties or their solicitors is filed in the Principal Registry, the Principal Registrar may, subject to any general or special direction given by the Chief Justice, cause the appeal to be set down for hearing at some other Registry specified in the application and thereupon the appeal shall be set down for hearing and heard there unless the Court or a Justice otherwise orders. | |||
“ (5) The Court or a Justice may direct that an appeal shall be heard at a Registry other than that for which the appeal has been set down. |
High Court Rules 117
“ 19. (1) Not less than twenty-one (21) days before the commencement of the sittings at which the appeal is set down for hearing a party to an appeal may | Use o f written | ||
case on appeal. | |||
give notice in writing to the other parties that he proposes to prepare and file a written case and thereupon rules 12(2) t o l 2 ( 9 ) inclusive of this Order shall apply | |||
“ (2) If a party receiving notice under this rule desires to object to the use of written cases, he may do so within seven (7) days, by filing in the Principal Registry a notice to that effect and serving a copy of the notice upon the other parties to the appeal. | |||
“ (3) Upon the filing of a notice under the last preceding sub-rule the Principal Registrar shall forthwith obtain the direction of the Chief Justice or if the Chief Justice is unavailable of the senior Justice who is available, and communicate it to the parties. The Justice may after hearing the party giving the notice direct that party to prepare and file a written case within such time as the Justice may fix. | |||
“ (4) A party upon whom a written case is served may within fourteen (14) days file and serve a reply to any of the submissions made in the written case. | |||
“ (5) Where the parties present their cases in writing, there shall be no appearance of any of the parties before the Court unless the Court or a Justice otherwise directs. | |||
“ 20. Upon the non-compliance with any time fixed for the doing of an act required to be done by an appellant under this Order the Court may order that |
| ||
warn o f | |||
prosecution. | |||
bis appeal shall stand dismissed for want of prosecution, and may make such order as to the costs of the appeal in that event as appears just. | |||
“ 21. The Court o r a Justice may order that any person be added as a party to an appeal or that the proceedings be amended, and may impose such condi |
tions as appear just and give all consequential directions.". | Adding parties. |
G. E. BARWICK
C.J. Η. T. GIBBS
J. N. M. STEPHEN
J.
(L X )
A. F. MASON Λ
K. S. JACOBS Λ
L. K. MURPHY
J. K. A. AICKIN /.
FRANK JONES Principal Registrar
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