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

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Rules1991No. 252 1

__________________

Rules of the Supreme Court of the
Australian Capital Territory 2(Amendment)

WE, Judges appointed under subsection 7 (1) of the Australian Capital Territory Supreme Court Act 1933, make the following Rules of Court under section 28 of that Act.

Dated 12 August 1991.

JEFFREY MILES

Chief Justice

J. F. GALLOP

Judge

T. J. HIGGINS

Judge

J. CIRCOSTA

Acting Registrar

____________

1. Commencement

1.1 These Rules commence on 1 September 1991.

2. Amendment

2.1 The Rules of the Supreme Court of the Australian Capital Territory are amended as set out in these Rules.

3. New Parts 12 and 13

3.1 After Order 80, insert:

“PART 12—APPEALS FROM THE ADMINISTRATIVE

APPEALS TRIBUNAL

ORDER 81

Interpretation

“1.01 In this Order, unless the contrary intention appears:

‘Appeals Act’ means the Administrative Appeals Tribunal Act 1989 of the Australian Capital Territory;

‘Tribunal’ means the Australian Capital Territory Administrative Appeals Tribunal;

‘Registrar of the Tribunal’ includes the Deputy Registrar of the Tribunal or other officer for the time being performing the duties of the Registrar or Deputy Registrar.

Instituting an appeal—form 79

“2.01An appeal to the Court under section 46 of the Appeals Act from a decision of the Tribunal may be instituted by filing a notice of appeal in accordance with form 79 in Schedule1.

Notice of appeal

“3.01The notice of appeal must be signed by the appellant or the appellant’s solicitor and must state:

(a)
the decision of the Tribunal from which the appeal is brought, the members constituting the Tribunal and the date when the decision was made;
(b)
the question or questions of law to be raised on the appeal;
(c)
the order sought; and
(d)
briefly, but specifically, the grounds relied upon in support of the order sought.

“3.02The Court may, on such terms and conditions as the Court thinks fit, allow a notice of appeal to be amended.

“3.03On the hearing of an appeal, the appellant must not, without the leave of the Court:

(a)
raise any question of law that is not stated in the notice of appeal; or
(b)
rely on any ground in support of the order sought that is not set out in the notice of appeal.

Appearance

“4.01If there is a respondent to an appeal, the notice of appeal must include an instruction that before taking any other step in the proceeding the respondent must enter an appearance in the Registry.

Other parties

“5.01Each party to a proceeding in the Tribunal who would be affected by the order sought by a notice of appeal or who is interested in maintaining the decision under appeal must be joined as a respondent to an appeal.

“5.02 The Court may order:

(a)

the addition of any person to an appeal:

(i) as a respondent; or

(ii) with the consent of the person—as an appellant; or

(b)

the removal of any person from an appeal.

Filing and service of notice of appeal

“6.01To appeal from a decision of the Tribunal, a notice of appeal must be filed in the Registry of the Court within the time specified in paragraph 46 (3) (a) of the Appeals Act.

“6.02Not later than 7 days after filing a notice of appeal, the appellant must serve a copy of the notice of appeal personally on each other party to the proceeding in the Tribunal and on the Registrar of the Tribunal.

Extension of time

“7.01 Application may be made to the Court, or a Judge, for an extension of the time specified in paragraph 46 (3) (a) of the Appeals Act either before or after the expiration of the specified time.

“7.02 An application for extension of time must be in accordance with form 80 in Schedule 1.

“7.03 An application for extension of time must be accompanied by an affidavit showing:

(a)

the nature of the case; and

(b)

the questions involved; and

(c)

the reason why an extension of time should be given.

Security for costs

“8.01 The Court may, in special circumstances, order that such security for costs of appeal to the Court be given as it thinks fit.

“8.02 Subject to subrule 8.01, no security for costs of an appeal to the Court is required.

Stay

“9.01 Application may be made to the Court or a Judge, by motion on notice, for an order under section 47 of the Appeals Act staying or otherwise affecting the operation or implementation of a decision subject to appeal

“9.02 An application referred to in subrule 9.01 may, in an urgent case, be made ex parte.

Documents to be forwarded

“10.01 Not later than 21 days after service of a notice of appeal on the Registrar of the Tribunal, the appellant must send, or cause to be sent, to the Registry:

(a)
a copy of the decision appealed from;

(b)
if the Tribunal has given reasons in writing for its decision, a copy of the reasons; and
(c)
the transcript, or notes, of proceedings in the Tribunal (if any); and
(d)
a list of all documents sent to the Registry in relation to the appeal specifying the documents that were before the Tribunal and specifying:
(i) the documents (if any) in respect of which the Tribunal has made an order under subsection 34 (2) of the Appeals Act ; and
(ii) the documents (if any) in respect of which a certificate of the Minister is in force under subsection 26 (7) of the Appeals Act ; and
(iii) the documents (if any) in respect of which a certificate of the Minister is in force under subsection 35 (1) of the Appeals Act;
and disclosing whether or not an order was made by the Tribunal under subsection 35 (4) of the Appeals Act in respect of documents referred to in subparagraph (iii) of this subrule.

“10.02 If the Tribunal has not given reasons in writing for its decision, the appellant must:

(a)
obtain from the Tribunal, in accordance with subsection 44 (3) of the Appeals Act, a statement in writing of the reasons for the decision; and
(b)
send a copy of the statement to the Registrar of the Tribunal and to the Registry not later than 10 days after receiving it.

“10.03 When the documents referred to in subrules 10.01 and 10.02 have been received in the Registry, the Registrar must, subject to sections 34 and 35 of the Appeals Act, send a copy of the list of documents to each party to the appeal.

Discontinuance of appeal

“11.01 An appellant may at any time file and serve a notice of discontinuance of the appeal and, on its being filed, the appeal is taken, subject to subrule 11.02, to be abandoned.

“11.02 A notice of discontinuance filed by an appellant under subrule 11.01 does not affect any other appellant in the appeal.

“11.03 A party filing a notice of discontinuance under subrule 11.01 is liable to pay the costs of the other party or parties occasioned by the appeal.

“11.04 A party whose costs are payable under subrule 11.03 may submit a bill of costs to the taxing officer and if the taxed costs are not paid within 14 days after service of the certificate of taxation, may enter judgment for the taxed costs.

Amendment by supplementary notice

“12.01 A notice of appeal may be amended without leave, before the date of the directions hearing, by filing a supplementary notice.

“12.02 A party who files a supplementary notice under subrule 12.01 must file and serve it in accordance with rule 6 as if it were a notice of appeal.

Notice of cross appeal

“13.01 A respondent who desires:

(a)
to appeal from a part of the decision from which the appellant has appealed; or

(b)

to seek a variation of a part of that decision;

need not institute a substantive appeal, but must, not later than 21 days after the service upon that respondent of the notice of appeal, or within such further time as the Court or a Judge may allow:

(c)

file in the Registry a notice of cross-appeal; and

(d)
serve a copy of the notice on the appellant and every other party to the proceeding.

“13.02 A notice of cross-appeal must state:

(a)
what part of the decision the respondent cross-appeals from or contends should be varied; and
(b)
the question or questions of law to be raised in the cross-appeal; and

(c)
the relief sought in place of the decision appealed from or the variation of that decision which is sought; and
(d)
briefly, but specifically, the grounds relied on in support of the relief or variation sought.

“13.03 It is not necessary to give notice of cross-appeal in accordance with subrule 13.01 if the respondent:

(a)
proposes to contend that a matter of law has been erroneously decided against that respondent, but does not seek a discharge or variation of a part of the decision actually pronounced or made; and

(b)

gives notice to the appellant of:

(i) the respondent’s contention; and

(ii) the record of evidence or documents before the Tribunal relevant to the respondent's contention; and
(c)
at the time when the appeal papers are settled under rule 15, requests that those records of evidence or documents be included in the appeal papers

Date of directions hearing

“14.01 A notice of appeal must state the date appointed by the Registrar for a directions hearing.

“14.02 A notice of appeal must, unless the Court or a Judge otherwise orders, be served on the respondent not less than five days before the date appointed for the directions hearing.

“14.03 If the Court or a Judge has made an order under subrule 14.02, the notice of appeal must bear a note of the order made.

Directions hearing

“15.01 At a directions hearing under this Order, the Court or a Judge may give such directions in relation to the conduct of the proceeding as the Court or Judge thinks proper.

“15.02 Without prejudice to the generality of subrule 15.01, the Court or a Judge may:

(a)
determine what documents and matters are to be included in the appeal papers and the order of inclusion; and
(b)
determine what documents and matters were before the Tribunal; and
(c)
settle the index of documents comprising the appeal papers; and
(d)
determine the number of copies of the appeal papers required; and

(e)

direct the joinder of parties; and

(f)

direct the place, time and mode of hearing.

“15.03

In this rule, the jurisdiction exercisable by the Court is exercisable by the Master or the Registrar.

Preparation of appeal papers

“16.01 The preparation of appeal papers must comply with the following requirements to the satisfaction of the Registrar:

(a)
the title page of the appeal papers must state the title of the proceeding, the division of the Tribunal from which the appeal is brought, the names of the members constituting the Tribunal, and the names, and addresses for service, of the solicitors for each party;
(b)
after the title page there must be the settled index referred to in paragraph 15.02 (c) showing the date and page number of each document;
(c)
the appeal papers must be paginated and must include all documents necessary to enable questions of law raised by the appeal to be determined by the Court;
(d)
each document must be headed by its date and a short description of its nature but formal headings are not to be included and jurats and formal identification of exhibits and the like are to be omitted;
(e)
the appeal papers need not be in bound and printed form but must be clear, legible and securely fastened.

“16.02 A copy of the appeal papers in relation to a proceeding must be filed by the appellant together with a certificate by the parties or their solicitors stating that the copy has been examined and is correct.

“16.03 The appellant must file as many additional copies of the appeal papers as the Registrar directs.

“16.04 The requirements of this rule are subject to any direction that may be given by the Court, a Judge or the Registrar.

Setting down appeal

“17.01 Unless an appeal is set down or listed for hearing at the directions hearing, the appellant must enter the appeal for hearing not later than 14 days after the appeal papers are settled.

“17.02 A copy of the entry for hearing must be served forthwith on every other party to the appeal.

Failure of appellant to enter appeal

“18.01 If an appellant does not enter the appeal for hearing within the time specified by rule 17, any other party to the appeal may enter the appeal for hearing or apply to the Court or a Judge by motion on notice for an order dismissing the appeal for want of prosecution.

“18.02 If an application is made to the Court or a Judge under subrule 19.01, the Court or a Judge may order the appeal to be dismissed or make such other order as the Court or Judge thinks to be just.

Want of prosecution

“19.01 If an appellant has not done any act required to be done under these Rules, or has not prosecuted the appeal with due diligence, the Court may:

(a)

order that the appeal be dismissed for want of prosecution; or

(b)

fix a time for the doing of the act and:

(i) at the same time—order that in the event of non-compliance the appeal will stand dismissed for want of prosecution; or

(ii) subsequently—in the event of non-compliance, order that it be so dismissed; or

(c)

make any other order that the Court thinks fit.

“19.02 The Court may make orders in accordance with subrule 19.01:

(a)

of its own motion, after giving notice to the appellant; or

(b)

on motion on notice by a respondent.

“19.03 An order under subparagraph 19.01 (b) (i) 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.

“PART 13—APPLICATIONS UNDER THE ADMINISTRATIVEDECISIONS (JUDICIAL REVIEW) ACT 1989 OF THE AUSTRALIAN CAPITAL TERRITORY

ORDER 82

Interpretation

“1.01 In this Order, unless the contrary intention appears:

“Review Act” means the Administrative Decisions (Judicial Review) Act 1989 of the Australian Capital Territory.

Application of Rules

“2.01 The provisions of these Rules other than this Order, so far as they are applicable and are not inconsistent with this Order, apply to proceedings in the Court in the exercise of of its jurisdiction under the Review Act.

Instituting a review—form 81

“3.01 A review by the Court of a decision to which the ReviewAct applies may be instituted by filing an application in accordance, with form 81 in Schedule 1.

“3.02 If the grounds of an application include an allegation of fraud or bad faith, the application must include particulars of the fraud or bad faith relied on.

“3.03A copy of an application under this rule must be served on each other party to the review not later than 5 days after filing.

Documents to be filed

“4.01 When filing an application for an order of review of a decision, or as soon afterwards as is practicable, the applicant must file a copy of the following documents (other than a document that is not in the possession of the applicant):

(a)
a statement by the person who made the decision, of the terms of the decision;
(b)
a statement under section 13 of theReview Act or section 26 of the Administrative Appeals Tribunal Act 1989 of the Australian Capital Territory, or any other statement given to the applicant by, or on behalf of, the person who made the decision that purports to set out:

(i) findings of fact; or

(ii) a reference to the evidence or other material on which findings of fact were based; or
(iii) the reasons for making the decision;
unless a copy of that document has been filed previously in relation to the proceeding.

“4.02 An applicant who files a copy of a statement under subrule 4.01 must serve a copy of the statement on each other party to the application not later than 5 days after filing.

Notice of objection to competency

“5.01 A respondent to an application who objects to the competency of the application may, not later than 14 days after service of a copy of the application on that respondent, file, and serve on each other party to the proceeding, a notice of objection to competency stating briefly the grounds of the objection.

Directions

“6.01 In addition to the powers of the Court or a Judge specified in Order 33, the Court, a Judge, the Master or the Registrar may give directions:

(a)
that the applicant serve a copy of the application on the Attorney-General of the Australian Capital Territory; and
(b)
that the applicant give notice of the application to such persons or classes of persons in such manner as the Court directs; and
(c)
if a notice of objection to the competency of the application has been filed, that the objection be heard and determined before the hearing of the application to which the objection relates.

Staying or dismissing applications

“7.01 If, in an application for an order of review, it appears to the Court that in relation to the application generally or in relation to any claims for relief in the application:

(a)

no reasonable basis for the application is disclosed; or

(b)

the application is frivolous or vexatious; or

(c)

the application is an abuse of the process of the Court;

the Court may order that the application be:

(d)

stayed; or

(e)
dismissed either generally or in relation to any claim for relief in the application.

“7.02 The Court may receive evidence in the hearing of an application for an order under subrule 7.01.”.

4. Schedule 1 (Forms—civil proceedings)

4.1 Add at the end the following forms:

“FORM 79

O.81

r. 2

NOTICE OF APPEAL FROM THE

ADMINISTRATIVE APPEALS TRIBUNAL

IN THE SUPREME COURT OF THE )

AUSTRALIAN CAPITAL TERRITORY ) No. of 19

On appeal from the Administrative Appeals Tribunal constituted by (names of the members constituting the Tribunal which made the decision)

BETWEEN: (name.) Appellant

and

(name.) Respondent

1. TAKE NOTICE that the appellant appeals from the decision of the Tribunal constituted by (members constituting the Tribunal) given on (date) at (place) whereby the Tribunal decided (decision appealed from).

2. QUESTIONS OF LAW raised on the appeal are: (specify each question of law)

3. ORDERS SOUGHT are: (state the orders or relief sought)

4. GROUNDS relied on are: (specify grounds relied on in support of the orders or relief sought)

Dated: 19 .

............................................................

Appellant (or appellant's solicitor)

To the Respondent:

(name and address)

TAKE NOTICE that a directions hearing in this appeal will be heard by the Court at the time and place specified below.

If there is no attendance before the Court by you or your counsel or solicitor, directions may be given and orders made in your absence.

Before taking any step in the proceeding or attending at the directions hearing you must file an appearance in the Registry.

DIRECTIONS HEARING:

Time:

(date and time to be entered by Registry unless fixed by Court)

Place:

(address of Court)

(If the time for service has been abridged, add)

The time by which this notice of appeal, with its notice of the directions hearing, is to be served has been abridged by the Court to (specify time).

Dated: 19 .

By the Court

(signature and description of officer of the Court)

The appellant’s address for service is (specify address for service).

___________

“FORM 80

O. 81

r. 7

APPLICATION FOR EXTENSION OF TIME

TO FILE OR SERVE NOTICE OF APPEAL FROM

ADMINISTRATIVE APPEALS TRIBUNAL

IN THE SUPREME COURT OF THE )

AUSTRALIAN CAPITAL TERRITORY ) No. of 19

BETWEEN: (name). Appellant

and

(name). Respondent

1. The appellant applies for an extension of time in which to file or serve (as the case may be) a notice of appeal from the decision of the Tribunal constituted by (names of the members constituting the Tribunal) given on (date) at (place) whereby the Tribunal decided (decision sought to be appealed from).

2. An extension of time is required because a notice of appeal was not filed or served (as the case may be) within the time(s) specified in subsection 46 (3) of the Administrative Appeals Act 1989.

3. This application will be heard by the Court at [place—to be inserted by Registrar] on [date—to be inserted by Registrar].

4. The grounds of the application appear in the annexed affidavit.

Dated: 19 .

............................................................

Appellant[or appellant’s solicitor]

______________

“FORM 81

O. 82 r.3

APPLICATION FOR AN ORDER OF REVIEW

IN THE SUPREME COURT OF THE )

AUSTRALIAN CAPITAL TERRITORY ) No. of 19

BETWEEN: (name) Appellant

and

(name) Respondent

Application to review the decision of (the respondent or the first respondent) that

(specify decision)

OR

Application to review the conduct of (the respondent or the first respondent), being (identify conduct)

OR

Application to review conduct in which (the respondent or the first respondent) proposes to engage, being

(identify conduct)

OR

Application to review the failure of (the respondent or the first respondent) to decide that

(specify the decision which it is alleged ought to have been made)

The applicant is aggrieved by the (decision or conduct or proposed conduct or failure) because:

1.

2.

etc. (reasons)

The grounds of the application are:

1.

2.

etc. (particulars of fraud or bad faith ,if alleged)

The applicant claims:

1. An order (or declaration) that (specify relief sought).

2.

etc.

Dated: 19 .

............................................................

Appellant (or appellant's solicitor)

To the Respondent:

(name and address)

TAKE NOTICE that a directions hearing in this application will be heard by the Court at the time and place specified below. If there is no attendance before the Court by you or your counsel or solicitor, directions may be given or the application may be dealt with and you will be liable to suffer judgment or order against you in your absence.

Before taking any step in the proceeding or attending at the directions hearing you must file an appearance in the Registry.

DIRECTIONS HEARING:

Time:

(date and time to be entered by Registrar unless fixed by Court)

Place:

(address of Court)

(If the time for service has been abridged, add:)

The time by which this application, with its notice of the directions hearing, is to be served has been abridged by the Court to

(specify time).

Dated: 19 .

By the Court

(signature and description of officer of the Court)

The applicant’s address for service is

(specify address for service).

______________

“FORM 82

O.82 r. 4

NOTICE OF OBJECTION TO COMPETENCY

IN THE SUPREME COURT OF THE )

AUSTRALIAN CAPITAL TERRITORY ) No. of 19

BETWEEN: (name) Appellant

and

(name) Respondent

To the Applicant:

(name and address)

The respondent objects to the jurisdiction of this Court to try this application for an order of review under the Administrative Decisions (Judicial Review) Act 1989 on the grounds that:

1.

2.

etc. (set out concisely the whole of the grounds of the objection)

Dated: 19 .

......................................................................

Respondent (or respondent's solicitor)

The respondent’s address for service is

(specify address for service).”.

____________________________________________________________

NOTES

1. Notified in the Commonwealth of Australia Gazette on 26 August 1991.

2. Statutory Rules 1937 No. 85 as amended by 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; 1969 Nos. 57, 66, 221 and 222; 1972 No. 189; 1973 Nos. 95 and 149; 1974 Nos. 25, 60 and 197; 1975 No. 81; 1976 No. 190; 1977 No. 152; 1978 Nos. 86 and 173; 1980 Nos. 210 and 214; 1981 Nos. 104, 196, 296 and 328; 1982 Nos. 202, 316 and 365; 1983 Nos. 26, 27 and 228; 1984 Nos. 110, 281, 285, 313 and 405; 1985 Nos. 27 and 69; 1986 Nos 8, 26, 86 and 349; 1987 Nos. 67, 93 and 219; 1988 Nos. 24, 145, 221, 257 and 331; 1989 Nos. 18, 30, 191 and 273; 1990 Nos. 2, 129, 372 and 458; 1991 Nos. 108 and 251.

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