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

STATUTORY RULES

1969 No.

 

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 Court of the Supreme Court of the Australian Capital Territory be amended, as follows:—

Commencement.

1. These rules shall come into operation on the 1st day of June, 1969.

Infants.

2. Order 19, rule 16, is amended by inserting after sub-rule (1.) the following sub-rule:—

“(1a.) A woman, whether single or married, may be the next friend, or guardian ad litem, of an infant.”.

3. Order 20 is repealed and the following Order inserted in its stead:—

“ORDER 20.

“Third Party Procedure.

Third Party Claim and Form.

“1.—(1.) Where in an action a defendant claims as against a person not already a party to the action (in this Order called ‘the third party’)—

(a) that he is entitled to contribution or indemnity;

(b) that he is entitled to any relief or remedy relating to or connected with the original subject matter of the action and substantially the same as some relief or remedy claimed by the plaintiff; or

(c) that a question or issue relating to or connected with the original subject matter of the action is substantially the same as some question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant but as between the plaintiff, the defendant and the third party or between any two of them.

the defendant may issue and serve a third party claim which shall be in accordance with Form 13 or Form 14 with such variations as the case may require.

“(2.) Particulars of the defendant’s claim against the third party shall be set out in the third party claim and shall be pleaded in accordance with the rules respecting statements of claim.

“(3.) The third party claim shall be sealed and shall be served on the third party and a copy of it shall be filed at the time of the sealing.

“(4.) At the time of the service of the third party claim, the defendant shall serve upon the third party a copy of the writ by which the action was begun and a copy of the pleadings (if any) delivered in the action.

“(5.) The defendant shall within the time prescribed by Order 20, rule 2, serve upon the plaintiff and all parties to the action a copy of the third party claim.

 

* Notified in the Commonwealth Gazette on 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; and 1968, No. 13.

12621/69—Price 10c 12/18.3.1969

 

Issuing of claim.

“2.—(1.) The third party claim shall be issued and served upon the third party before the expiration of 14 days after the time limited for the delivery of the defence or such further time as is agreed to by the plaintiff or allowed by the Court or Judge.

“(2.) Where there are no pleadings or, for any reason, no defence is to be delivered, the claim shall be issued and served within such time as is allowed by the Court or Judge.

Service of claim.

“3. Subject to this Order, Order 10 (except rule 7) and Order 11 shall apply in relation to a third party claim and to the proceedings begun thereby as if—

(a) the third party claim were a writ and the proceedings begun thereby were an action; and

(b) the defendant issuing the third party claim were a plaintiff, and the person against whom it is issued a defendant, in that action.

Rights or Third Party in action.

“4. The third party shall, as from the time of the service upon him of the notice, be a party to the action with the same rights in respect of his defence against any claim made against him and otherwise as if he had been duly sued in the ordinary way by the defendant.

Time for appearance.

“5. The time for appearance by a third party after service of the third party claim shall be as provided by Order 3, rule 6, as if the third party claim were a writ.

Appearances.

“6. The third party shall enter his appearance in the Registrar’s office in the manner prescribed by Order 13 for a defendant to enter his appearance and shall, on the day on which he enters his appearance, serve the plaintiff and all other parties to the action with a sealed copy of the memorandum of appearance.

Defence and pleadings after service.

“7.—(1.) After service on the third party of the third party claim, the third party may take the same steps with respect to the third party claim as if it were a statement of claim delivered by a plaintiff.

“(2.) The third party shall file and serve his defence within 14 days after the expiration of the time limited for his appearance, and thereafter, the pleadings shall, as between the defendant and the third party, continue as in the case of an action between a plaintiff and defendant until issue is joined.

Procedure on default before trial.

“8.—(1.) If a third party duly served with a third party claim does not enter an appearance within the time allowed by these Rules—

(a) he shall be deemed to admit liability for the claims stated in the third party claim and shall be bound by any judgment (including judgment by consent) or decision in the action in so far as it is relevant to any claim, question or issue stated in the third party claim; and

(b) the defendant by whom the third party claim was issued may, if judgment is given against him in the action, at any time after satisfaction of that judgment or with the leave of the Court or Judge, before satisfaction of the judgment, enter judgment against the third party in respect of any indemnity or any contributions of a specific amount or proportion claimed in the notice and, with the leave of the Court or Judge, in respect of any other relief or remedy claimed therein.

“(2.) If the defendant by whom a third party claim was issued makes default in delivery to the third party of any pleading, the Court or Judge may order judgment to be entered for the third party or may make such other order as may appear necessary to do justice between the parties.

“(3.) The Court or Judge may at any time set aside or vary a judgment entered under paragraph (b) of sub-rule (1.) or sub-rule (2.) of this rule on such terms, if any, as it or he thinks fit.

 

Procedure on trial.

“9. Unless otherwise ordered by the Court or Judge, where the action between the plaintiff and the defendant proceeds to trial—

(a) the third party, if he has appeared and pleaded, shall be at liberty to appear at, and take part in, the trial of the action;

(b) the issues between the third party and the defendant shall be tried at the trial of, and concurrently with, the issues in the action; and

(c) the third party shall be bound by the result of the trial.

Judgment on third party claim.

“10.—(1.) Where in an action a defendant has served a third party claim, the Court or Judge may at or after the trial of the action, or, if the action is determined otherwise than by trial, on an application by motion or summons, order such judgment as the nature of the case requires to be entered for the defendant against the third party or for the third party against the defendant.

“(2.) Where, in an action, judgment is entered against a defendant, and judgment is entered for the defendant against a third party, execution shall not issue against the third party without the leave of the Court or Judge until the judgment against the defendant has been satisfied.

Costs.

“11. The Court or Judge may decide all questions of costs as between a third party and other parties to the action, and may order any one or more of them to pay the costs of any other, or others, or give such directions as to costs as the justice of the case requires.

Fourth and subsequent parties.

“12.—(1.) A third party may make a claim of the nature referred to in rule 1 of this Order against a person not already a party to the action (in this rule referred to as a fourth party) and, in relation to such a claim, the provisions of this Order shall apply mutatis mutandis as if the third party were a defendant and the other party were a third party.

“(2.) A fourth party against whom a claim is made under the last preceding sub-rule may similarly make a claim against a person not already a party to the action, and so on, successively.

Service of Pleadings.

“13. Where the third party has entered an appearance, copies of all pleadings delivered as between the plaintiff and the defendant and the defendant and the third party shall be served upon all parties to the action.

Counter claims.

“14. Where, in an action, a counter claim is made by a defendant, the provisions of this Order shall apply in relation to the counter claim as if the subject-matter of the counter claim were the original subject-matter of the action and as if the person making the counter claim were a plaintiff and the person against whom it is made a defendant.

Co-defendants.

“15.—(1.) Where a defendant claims against another defendant—

(a) that he is entitled to contribution or indemnity; or

(b) that he is entitled to any relief or remedy relating to or connected with the original subject-matter of the action and substantially the same as some question or issue arising between the plaintiff and the defendant making the claim and which should properly be determined not only as between the plaintiff and the defendant making the claim but as between the plaintiff, that defendant and the other defendant or between any two of them,

the defendant making the claim may serve on the other defendant a notice making the claim or specifying the question or issue.

“(2.) Particulars of the defendant’s claim shall be set out in the notice and shall be pleaded in accordance with the rules respecting statements of claim.

“(3.) A copy of the notice shall be filed forthwith after service and a copy served upon the plaintiff and each other party to the action who has entered an appearance.

 

“(4.) The notice shall be served upon the other defendant as soon as reasonably practicable and shall be answered as soon as reasonably practicable by the other defendant, but no appearance to the notice shall be necessary, and the same procedure shall be adopted for the determination of the claim, question or issue between the defendants as would be appropriate under this Order if the other defendant were a third party.

“(5.) Nothing in this rule prejudices the rights of the plaintiff against a defendant to the action.

“(6.) Copies of all pleadings delivered between the defendant making the claim and the defendant on whom the claim is made shall be served upon the plaintiff and each other party to the action who has entered an appearance.”.

4. Order 23, rule 11, is repealed and the following rule inserted in its stead:—

Delivery and marking of pleadings.

“11.—(1.) Every pleading shall be filed and shall be delivered on the day of filing.

“(2.) Every pleading shall be marked with the date of the day on which it is delivered and with a reference to the number of the action, the title of the action, and the description of the pleading and shall be endorsed with the name and place of business of the solicitor and agent (if any) delivering the same or the name and address of the party delivering the same if he does not act by a solicitor.

“(3.) Sub-rule (1.) of this rule does not require the delivery of a pleading to a party to the action who, being required to enter an appearance, has not done so.”.

5. Order 23, rule 12, is repealed and the following rule inserted in its stead:—

Mode of delivery.

“12. Every pleading or other document required to be delivered to a party or between parties shall be delivered to the solicitor for each party who appears by a solicitor or to the party if he does not appear by a solicitor.”.

Statement of Claim.

6. Order 24, rule 1, is amended by omitting sub-rule (1.) and inserting in its stead the following sub-rule:—

“(1.) Subject to the next succeeding sub-rule, and to the provision of Order 14, rule 11, as to filing a statement of claim where there is no appearance, a plaintiff shall deliver a statement of claim either with the writ of summons or notice in lieu of writ of summons or within fourteen days after appearance.”.

7. Order 34, rule 1, is repealed and the following rule inserted in its stead:—

Discovery by Interrogatories.

“1.—(1.) A party to an action commenced by writ of summons, and, by leave of the Court or Judge, a party in any other cause or matter, may deliver interrogatories relating to any mailer in question between that party and the other party or parties.

“(2.) Further interrogatories may be delivered by leave of the Judge.

“(3.) The Court or Judge may order that all or any of the interrogatories may be answered by some person on behalf of a party and, in such a case, the answers of that person shall be as effective and binding in all respects as if made by the party interrogated.

“(4.) Interrogatories which do not relate to any matters in question in the action, cause or matter shall be deemed to be irrelevant, notwithstanding that the answers to them would be admissible on the oral examination of a witness.

“(5.) The party administering interrogatories shall file the original, and deliver a copy, of the interrogatories on the same day to the party sought to be interrogated.”.

 

8. Order 34, rule 7, is repealed and the following rule inserted in its stead:—

Interrogatories to corporation or company.

“7.—(1.) Where discovery is to be made, or interrogatories answered, by a body corporate or any other body of persons empowered by law to sue or to be sued, whether in its own name or in the name of any officer or other person, the affidavit of discovery or the affidavit in answer to interrogatories shall be made by the secretary or other proper officer, agent or servant of that body corporate or other body.

“(2.) An opposite party may apply for an order allowing him to deliver interrogatories to be answered by a specified officer, agent or servant of a body referred to in the last preceding sub-rule.”.

9. Order 34, rule 10, is repealed and the following rule inserted in its stead:—

Answer.

“10.—(1.) Interrogatories shall be answered by affidavit to be filed within 14 days of their delivery and a copy of the affidavit shall be delivered within the same time to the party administering the interrogatories.

“(2.) A person required to answer interrogatories shall, before answering, make all due and proper inquiries of his servants and agents and, if he is an officer of a body corporate or of any other body of persons empowered by law to sue or to be sued whether in its own name or in the name of any officer or other person, of his fellow officers and the servants and agents of the body corporate or other body.”.

10. Order 38, rule 9, is repealed and the following rule inserted in its stead:—

Delivery of copies of pleadings

“9. Where the pleadings are complex or extensive or the Registrar directs, the plaintiff shall deliver a copy thereof to the Registrar for the use of the Judge at the trial.”.

11. Order 40 is amended by inserting after rule 3 the following rule:—

Dates and figures to be expressed in figures and not words.

“3a. In an affidavit for use in Court or in Chambers, amounts, sums, numbers and references to the days of the month and years in dates shall be expressed in figures and not in words.”.

12. Order 63, rule 3, is repealed and the following rule inserted in its stead:—

Office hours.

“3.—(1.) The offices of the Court shall be open daily (except Saturday, Sunday and any day observed as a public holiday in the Territory) between the hours of 9.30 o’clock in the forenoon and 4 o’clock in the afternoon.

“(2.) The offices of the Court may be opened at any time for the transaction of urgent business upon payment of a fee of—

(a) One dollar, if opened between 9.00 a.m. and 9.30 a.m. or between 4.00 p.m. and 5.00 p.m. on a day on which the offices are open; or

(b) Three dollars in any other case.”.

13. Order 64, rule 3, is repealed and the following rule inserted in its stead:—

Time not reckoned.

“3. In the computation of the time appointed or allowed by the rules for riling, amending, serving or delivering any pleadings, or other document, time shall not, unless otherwise ordered by the Court or Judge, ran in the period that commences on the twenty-fourth day of December in one year and ends on the second day of January in the next succeeding year.”.

14. Order 64, rule 8, is repealed and the following rule inserted in its stead:—

Reckoning of time.

“8.—(1.) Subject to rule 1 of this Order, any period of time fixed by these Rules or by any judgment, order or direction for doing any act shall be reckoned in accordance with the following provisions of this rule.

“(2.) Where an act is required to be done within a specified period after or from a specified date, the period begins immediately after that date.

“(3.) Where an act is required to be done within or not less than a specified period before a specified date, the period ends immediately before that date.

“(4.) Where an act is required to be done a specified number of clear days before or after a specified date, at least that number of days must intervene between the day on which the act is done and that date.”.

15. Order 64 is amended by adding after rule 11 the following rule:—

“Month” means calendar month.

“12. Where—

(a) by these Rules, or by a judgment or order, the time for doing an act is limited by months; or

(b) the word “month” occurs in a document which is part of any legal procedure under these Rules,

the time shall be computed by calendar months, unless otherwise expressed.”.

Application for probate.

16. Order 72, rule 6, is amended by omitting paragraph (f) of sub-rule (1.) and inserting in its stead the following paragraph:—

“(f) that the testator had attained the age of eighteen years at the date of execution of the will;”.

Application for adoption order under the Ordinance.

17. Order 76, rule 3, is amended by inserting after sub-rule (1.) the following sub-rule:—

“(1a.) The application and all proceedings in the application shall be entitled in the name proposed to be given to the child sought to be adopted, and not in any other name of that child.”.

Documents to be filed.

18. Order 76, rule 6, is amended—

(a) by adding at the end of sub-rule (1.) the words “and shall either identify the certificate in, or annex a copy of that certificate to, their affidavit or affidavits”;

(b) by omitting sub-rule (3.) and inserting in its stead the following sub-rules:—

“(3.) The applicants shall file with the application the instrument of consent to the adoption of the child.

“(3a.) Subject to the next succeeding sub-rule, there shall be filed in support of the application a certificate or record of the birth of the child, together with—

(a) evidence identifying the child as the person to whom the certificate or record relates; or

(b) an affidavit or statement in writing by the Director that, having made due inquiry, the child is to the best of his knowledge information and belief the person to whom the birth certificate or record relates.”.

First Schedule—Forms 13 and 14.

19. The First Schedule is amended by omitting Forms 13 and 14 and inserting in their stead the following forms:—

Form 13

THIRD PARTY CLAIM CLAIMING INDEMNITY OR CONTRIBUTION OR OTHER RELIEF OR REMEDY

In the Supreme Court of the Australian Capital Territory

 

No. of 19 .

Between A.B., Plaintiff

and

C.D., Defendant

and

E.F., Third Party

THIRD PARTY CLAIM

To E.F. of in the of .

TAKE NOTICE that the plaintiff has brought an action against the defendant particulars whereof are set out in the documents served upon you herewith.

And take notice that the defendant claims against you contribution or indemnity or relief or remedy as set out in this Third Party Claim.

And take notice that, if you wish to dispute the plaintiff’s claim against the defendant or the defendant’s claim against you, you must cause an appearance to be entered for you at the Registrar’s office, Law Courts, Canberra, within  days after service of this notice upon you.

In default of your entering an appearance, you will be deemed to admit the plaintiff’s claim against the defendant and the defendant’s claim against you and you will be bound by any judgment or decision that may be given in the action to the extent provided by the rules and any such judgment may be enforced against you.

PARTICULARS OF DEFENDANT’S CLAIM

Dated this day of 19 .

(Signed)

Solicitors for the Defendant.

 

Form 14

THIRD PARTY CLAIM WHEN QUESTION OR ISSUE TO BE DETERMINED

In the Supreme Court of the Australian Capital Territory

No. of 19 .

Between A.B., Plaintiff

and

CD., Defendant

and

E.F., Third Party

THIRD PARTY CLAIM

To E.F. of in the of .

TAKE NOTICE that the plaintiff has brought an action against the defendant particulars whereof are set out in the documents served upon you herewith.

And take notice that the defendant claims that the question or issue set out in this Third Party Claim should be determined not only as between the plaintiff and the defendant but as between the plaintiff and the defendant and yourself.

 

And take notice that, if you wish to be heard on the said question or issue or to dispute the defendant’s liability to the plaintiff or your liability to the defendant, you must cause an appearance to be entered for you at the Registrar’s Office, Law Courts, Canberra within days after service of this notice upon you.

In default of your entering an appearance, you will be bound by any judgment or decision that may be given in the action on the said question or issue and will be deemed to admit any consequent liability of yourself and judgment may be given against you to the extent provided by the rules and any such judgment may be enforced against you.

PARTICULARS OF QUESTION OR ISSUE

Dated this day of 19 .

(Signed)

Solicitors for the Defendant.

 

First Schedule—Form 23.

20. The First Schedule is amended by adding at the end of Form 23 the words:—

“Each and every one of the above interrogatories is to be answered by the person required to answer it after making all due and proper enquiries of his servants and agents and, if he be an officer of a body corporate or of any other body of persons empowered by law to sue or to be sued whether in its own name or in the name of any officer or other person, after making all due and proper enquiries of his fellow officers and the servants and agents of the said body corporate or other body.”.

Eighth Schedule—Form 1.

21. The Eighth Schedule is amended by adding at the end of Form 1 the words:—

“Note: In a case where the names of the natural parents of the child are not known to the applicant(s), care should be taken to ensure that the names are not disclosed to the applicant(s) and this form should in any such case where practicable be signed by someone other than the applicant(s).”.

Eighth Schedule—Form 2.

22. The Eighth Schedule is amended—

(a) by omitting from Form 2 the words—

“[Signature(s) of applicant(s)]

and inserting in their stead the words—

“[Signature(s) of applicant(s) or of solicitor(s) for applicant(s)]; and

(b) by adding at the end of that form the words—

“Note: In a case where the names of the natural parents of the child are not otherwise known to the applicant(s), care should be taken to ensure that the names are not disclosed to the applicant(s) and this form should in such a case, where practicable, be signed by the solicitors for the applicant(s),”.

Dated this SEVENTEENTH day of APRIL, 1969.

Judge of the Supreme Court of the Australian Capital Territory.

Registrar.

 

Printed for the Government of the Commonwealth by W. G. Murray at the Government Printing Office, Canberra