Rules of the Supreme Court of the Australian Capital Territory (Amendment) (Cth)

STATUTORY RULES

1969 No. 221

 

RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY*

PURSUANT to the Australian Capital Territory Supreme Court Act 1933-1968, IT IS ORDERED that the Rules of the Supreme Court of the Australian Capital Territory be amended, as follows:—

1. These Rules shall come into operation on the first day of February, 1970.

2. The table of orders immediately before Part I. of the Rules is amended by omitting the words—

“Order 40—I.—Affidavits and Depositions

II.—Affidavits and Evidence in Chambers”

and inserting in their stead the following words—

“Order 40—I.—Affidavits.

3. Order 39 is amended by inserting after rule 33 in the division headed “3. Subpoena” the following rules:—

Delivery of documents to the Registrar.

“33a.—(1.) Where a party serves a subpoena upon a person to produce a document and that person does not object to the production thereof to the Court or to its being made available by the Court for inspection by a party, the person serving the subpoena may arrange with that person that the document be sent or delivered to the Registrar.

“(2.) Where such an arrangement is made, the person shall—

(a)post the document to the Registrar so as to reach him before the day specified in the subpoena; or

(b) deliver the document to the Registrar before that day,

together with, in either case, the subpoena or a copy thereof or a schedule giving brief particulars of the document and containing an adequate reference to the proceedings in which the subpoena was issued and the name and address of the person producing the document.

“(3.) Upon receipt of a document produced in accordance with sub-rules (1.) and (2.), the Registrar shall notify the party on whose behalf the subpoena was issued or his solicitor that he has received a document from the person to whom the subpoena was addressed.

“(4.) Where a person served with a subpoena to produce a document objects to the production thereof to the Court or to its being made available by the Court for inspection by a party, he shall not produce that document to the Registrar in accordance with this rule, but shall answer the subpoena by attending the Court at the time and place specified in the subpoena and make his objection to the Court or Judge.

“(5.) The Registrar shall not, without the leave of the Court or Judge, allow a document produced to him in accordance with this rule to be inspected by any party or person, but shall arrange for the document to be available at the hearing for which it is required.

 

* Notified in the Commonwealth Gazette on 30 December 1969.

  Statutory Rules 1937, No. 85, as amended by Statutory Rules 1938, No. 99; 1939, Nos. 48 and 61; 1950, No. 22; 1956, No. 135; 1958, No. 64; 1962, Nos. 47 and 76; 1966, No. 132; 1967, No. 68; 1968, No. 13; and 1969, Nos. 57 and 66.

25855/ 69 —Price 10c

“(6.) The production of documents to the Registrar in accordance with this rule and pursuant to an arrangement with the party who has issued a subpoena shall be a sufficient answer to the subpoena, and shall be treated as being in obedience thereto.

“(7.) A subpoena to produce a document shall have endorsed thereon or annexed thereto a written statement commencing with the words ‘Order 39, rule 33a, sub-rules (1.) to (6.), inclusive, of the Rules of Court are as follows:—’ and followed by the text of the last six preceding sub-rules.

“(8.) The last preceding sub-rule does not apply in any case where it is intended that the procedure provided for in this rule is not to be followed.”.

4. Order 40 is amended by omitting the heading preceding rule 1, rules 1 to 19 (inclusive), the heading preceding rule 20 and rules 20 to 23 (inclusive) and inserting in their stead the following heading and rules:—

“I.—Affidavits.

“ORDER 40.

Title or affidavit.

“1.—(1.) Subject to sub-rules (2.) and (3.) of this rule, an affidavit in a proceeding shall be entitled in that proceeding and bear the number, if any, of that proceeding.

“(2.) Where a proceeding is entitled in more than one matter, it shall be sufficient to state the first matter followed by the words ‘and other matters’, and where a proceeding is entitled in a matter or matters and between parties, that part of the title which consists of the matter or matters may be omitted.

“(3.) Where there are more plaintiffs than one, it shall be sufficient to state the full name of the first followed by the words ‘and others’, and similarly with respect to defendants.

“(4.) The costs occasioned by unnecessary prolixity in a title shall be disallowed by the taxing officer.

Form of affidavit.

“2.—(1.) An affidavit shall be expressed in the first person and shall state—

(a) the address of the deponent and his occupation or, if he has none, his description; and

(b)if he is, or is employed by, a party to the proceeding in which the affidavit is to be used, that fact.

“(2.) An affidavit shall be divided into paragraphs numbered consecutively, each paragraph being as far as possible confined to a distinct portion of the subject.

“(3.) Sums of money, numbers and references to the days of the months, and references to years, in dates shall be expressed in figures and not in words.

“(4.) An affidavit shall be endorsed on the back-sheet with the name of the deponent, the date on which it was taken and the party on whose behalf it is filed.

“(5.) Costs shall not be allowed for an affidavit or part of an affidavit substantially departing from this rule.

Contents of affidavit.

“3.—(1.) An affidavit shall, except as provided by sub-rule (2.) of this rule, be confined to such facts as the witness is able of his own knowledge to prove.

“(2.) An affidavit for use in interlocutory proceedings may contain statements of information and belief with the sources and grounds of that information and belief.

“(3.) Costs shall not be allowed for an affidavit or part of an affidavit which unnecessarily sets forth matters of hearsay, argumentative matter or copies of or extracts from documents.

Annexures and exhibits.

“4.—(1.) A document to be used in conjunction with an affidavit shall, where convenient, be annexed to the affidavit.

“(2.) Where annexure is inconvenient, the document may be made an exhibit to the affidavit.

“(3.) Instead of making a document an annexure or an exhibit to an affidavit, the relevant portion of the document may be included in the body of the affidavit and the party filing the affidavit shall in that case produce the document whenever the affidavit is used.

“(4.) An exhibit to an affidavit shall be identified by a certificate of the person before whom the affidavit is taken. The certificate shall be entitled in the same manner as the affidavit.

Taking of affidavit.

“5.—(1.) An affidavit shall be signed by the deponent and the jurat,duly completed, shall be signed by the person before whom it is taken.

“(2.) The date when and the place where the affidavit is taken and the title of the person before whom it was taken shall be stated in the jurat.

“(3.) When a deponent does not take an oath, the form of jurat shall be varied and the necessary alterations made so as to conform with the solemn affirmation or declaration of the deponent.

When affidavit may be taken.

“6. An affidavit for use in a proceeding may be taken before or after the commencement of the proceeding.

Affidavit by two or more deponents.

“7. Where an affidavit is made by two or more deponents, the names of the persons making the affidavit shall be inserted in the jurat except that, if the affidavit is sworn, affirmed or declared by both or all the deponents at the one time before the same person, it shall be sufficient to state that it was sworn, affirmed or declared by both, or all, of the ‘abovenamed’ deponents.

Affidavit by illiterate or blind person.

“8.—(1.) Where it appears to the person before whom an affidavit is taken that the deponent is blind or illiterate or for any other reason is unable to read the affidavit for himself, the person before whom the affidavit is taken shall certify in or below the jurat that—

(a) the affidavit was read in his presence to the deponent;

(b) the deponent seemed to understand it; and

(c) the deponent made his mark or signature in the presence of that person.

“(2.) Where it appears to the Court or Judge that the deponent of an affidavit is blind or illiterate or for any other reason is unable to read the affidavit for himself, the affidavit shall not be used in evidence without such a certificate unless the Court or Judge is satisfied that the affidavit was read to the deponent and that he appeared to understand it.

Affidavit by person unable to understand English.

“9.—(1.) Where it appears to the person before whom an affidavit is taken that the deponent is unable to understand the affidavit when read to him in English, the person before whom the affidavit is taken shall certify in or below the jurat that an interpreter, whose name and address is stated in the certificate, swore, affirmed or declared before him—

(a)that he had in the presence of the person taking the affidavit interpreted to the deponent the contents of the affidavit;

(b) that the deponent seemed to understand it;

(c) that he had interpreted to the deponent the oath, affirmation or declaration; and

(d)that the deponent had sworn, affirmed or declared that the contents of the affidavit so interpreted to him were true.

“(2.) Where it appears to the Court or Judge that the deponent to an affidavit is unable to understand the affidavit when read to him in English, the affidavit shall not be used in evidence without such a certificate unless the Court or Judge is satisfied that the affidavit was interpreted to the deponent and that he appeared to understand it.

Alterations in affidavits.

“10.—(1.) An affidavit which has in the jurat or body thereof an interlineation, erasure or other alteration shall not be used in a proceeding without the leave of the Court or Judge unless the interlineation, erasure or alteration is authenticated by the signature or initials of the person taking the affidavit or, if it is taken before an Officer of the Court at the Registry, either by his signature or initials or by a seal inscribed as mentioned in Order 62, rule 1.

“(2.) The last preceding sub-rule applies to an account verified by affidavit as if the account were part of the affidavit.

Filing of affidavits.

“11.—(1.) An affidavit for use in a proceeding shall be filed.

“(2.) An affidavit which has not been filed may not be used without the leave of the Court or Judge.

Copies of affidavits to be served.

“12. Except in the case of an ex parte application, a copy of an affidavit intended to be used by a party in a proceeding shall be delivered to each other part to the proceeding a reasonable time before the hearing.

Use of defective affidavit.

“13.—(1.) An affidavit may, with the leave of the Court or Judge, be used in evidence notwithstanding any defect in the title or jurat or any irregularity in the form thereof.

“(2.) Where leave is granted, the Court or Judge may direct that a memorandum to that effect be made on the affidavit.

Scandalous, &c., matter.

“14. Where there is scandalous, irrelevant or offensive matter in an affidavit, the Court or Judge may order that—

(a) the matter be struck out; or

(b) the affidavit be taken off the file.

Cross-examination.

“15.—(1.) A party may require the attendance for cross-examination of a person making an affidavit.

“(2.) A requirement under this rule shall be made to the party filing or proposing to use the affidavit.

“(3.) Where the attendance of a person is required under this rule and he does not attend, his affidavit shall not be used without the leave of the Court or Judge.

“(4.) Where a person making an affidavit is cross-examined, the party using, the affidavit may re-examine him.”.

5. Order 43 is amended by omitting rules 31, 32 and 33 and inserting in their stead the following rules:—

Examination of judgment debtors.

“31.—(1.) Where—

(a)a person has obtained a judgment or order for the recovery from, or payment of money by, some other person (hereinafter referred to as ‘the judgment debtor’); and

(b)the amount of any part of the sum payable by the judgment debtor has not been paid,

the Court or Judge or Registrar may, on an application made ex parte by the person entitled to enforce the judgment or order, order the judgment debtor, or if the judgment debtor is a body corporate, an officer thereof named in the order, to attend at the time and place specified in the order before the Registrar to be orally examined on the questions—

(c) whether any, and if so, what debts are owing to the judgment debtor; and

(d)whether the judgment debtor has any, and, if so, what other property or means of satisfying the judgment or order,

and to produce at the time and place so specified any books or documents in the possession of or under the control of the judgment debtor relevant to those questions.

“(2.) The order shall be in accordance with form 56a in the First Schedule.

“(3.) It shall not be necessary for a person applying for an order under sub-rule (1.) of this rule to appear personally, or by solicitor or counsel.

“(4.) An order under this rule shall be served personally on the person named in the order not less than seven (7) clear days before the return day. At the time service is effected payment or a tender of payment shall be made of a sum reasonably sufficient to cover the travelling expenses of the person named in the order to and from the place where he is required by the order to attend.

“(5.) Where a judgment debtor or such an officer fails to attend at the time and place appointed for his examination or otherwise disobeys the order or refuses to answer a question which the Registrar allows to be put to him or fails to answer such a question to the satisfaction of the Registrar, the Registrar may report the matter to the Court or Judge and the Registrar’s report shall be evidence of the facts stated therein in any proceedings which may be taken in consequence thereof.

“(6.) The Registrar may at any time adjourn the examination for further hearing before the Court or Judge.

“(7.) The Registrar shall cause a record to be made of the examination.

In cases of difficulty, party may apply.

“32.—(1.) Where any difficulty arises in or in connexion with the enforcement of any judgment or order, other than a judgment or order mentioned in rule 31 of this Order, the Court or Judge may on an application made ex parte by a person entitled to enforce the judgment or order, order that the party liable to satisfy the judgment or order, or, if that party is a body corporate, an officer thereof, attend before the Registrar to be examined on such questions as are specified in the order.

“(2.) The provisions of rule 31 shall apply with such modifications as may be necessary to an order made under this rule and the proceedings thereunder.

Costs.

“33. The Registrar may make an order for costs in respect of any proceedings brought before him under the last two preceding rules and that order may be enforced as if it were an order of the Court or Judge.”.

Time of notice.

6. Order 55 is amended by omitting rule 7.

Office copy of affidavits.

7. Order 65 is amended by omitting rule 76.

25855/69—2

First Schedule.

8. The First Schedule is amended by inserting after Form 56 the following form:—

“Form 56a O. 43 r. 31.

ORDER FOR EXAMINATION OF JUDGMENT DEBTOR

[Title to Proceedings]

Upon reading the affidavit of made the day of  , 19 , and filed herein,  It is ordered that   , the abovenamed judgment debtor [the of the abovenamed judgment debtor,] attend before the Registrar at the Law Courts, Knowles Place, City, Canberra in the Australian Capital Territory, on the  day of 19 , at o’clock in the noon to be examined orally as to any and what debts are owing to him [it] and whether the said judgment debtor has any and what other property or means of satisfying the judgment [order] signed [made] herein and that he then produce any books or documents in his [its] possession or control relating to the same before the Registrar at the time of the examination.

Dated this day of 19 .

Registrar.

To the abovenamed [name].

Take notice that if you fail to obey the above order to attend for examination at the time and place stated therein or to produce the said books or documents further legal proceedings may be taken against you for your failure to obey the order.”.

Dated this seventeenth day of December, 1969.

R. W. FOX

Judge of the Supreme Court of the Australian Capital Territory

Z. HARTSTEIN

Registrar

 

Printed by Authority by the Government Printer of the Commonwealth of Australia