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

Statutory

Rules1992No. 79 1

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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 11 March 1992.

 JEFFREY MILES

 Chief Justice

 J. F. GALLOP

 Judge

 T. J. HIGGINS

 Judge

A. G. TOWILL

Registrar

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1.   Commencement

1.1   These Rules commence on 1 April 1992.

2.   Amendment

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

3.   Order 40, rule 2 (Form of affidavit)

3.1

 Subrule 2 (4):

Omit “An affidavit shall be endorsed on the back-sheet with”, substitute “There must appear on the first page of an affidavit”.

4.   Order 66 (Documents style)

4.1   Omit the heading, substitute:

“DOCUMENTS”.

4.2   Heading to Division 1:

Before rule 1.01, insert:

“Division 1—Style”.

4.3   Add at the end:

Signature on behalf of solicitor

“10.01 If the signature of a solicitor is required, or permitted, on any document for the purpose of any proceedings, the signature on the document of any of the following persons is sufficient for that purpose:

(a)

a solicitor who is a partner of the solicitor;

• (b)

  a solicitor who is the agent of the solicitor, for the purpose of the proceedings;

• (c)

  a solicitor who is a partner of the agent of the solicitor;

• (d)

  a solicitor who is employed by the solicitor;

• (e)

  a solicitor who is employed by the agent of the solicitor.

“10.02.

A person signing a document under this rule must add to the document a statement of the capacity in which the person signs the document.

“Division 2—Inspection

Restriction on inspection of Registry files

“11.01 Except with leave of the Court, or of a Judge, a person who is not a party to a matter is not entitled to inspect, or search the Registry for, any of the following documents in relation to that matter:

• (a)

  any judgment, order, transcript of a proceeding or any other document that the Court, or a Judge, has ordered to be kept confidential;

• (b)

  an affidavit that has not been read in Court;

• (c)

  any part of an affidavit that has been ruled to be inadmissible in evidence;

• (d)

  an interrogatory, or an answer to an interrogatory, that has not been admitted into evidence;

• (e)

  a list of documents given on discovery;

• (f)

  an admission that has not been admitted into evidence;

• (g)

  a subpoena, or any document filed with the Registrar in answer to a subpoena for production of documents;

• (h)

  any document in relation to a proceeding in respect of the adoption, custody or guardianship of a child;

• (i)

  any document in relation to a proceeding under the Family Law Act 1975;

• (j)

  any document filed with the Court in the Court’s probate jurisdiction other than:

   (i) a grant of probate or of letters of administration; or

   (ii) an order to administer an estate; or

   (iii) proceedings in relation to a contested matter;

• (k)

  a deposition taken before an examiner;

• (l)

  any document filed with the Court in support of an ex parte application;

• (m)

  any document that the Registrar has determined should remain confidential to the parties to the matter in the interests of justice.

“11.02

Except with leave of the Court, or of a Judge, a party to a matter is not entitled to inspect, or search the Registry for, a subpoena issued at the request of another party.

“11.03

Except with leave of the Court, or of a Judge, a party to a matter is not entitled to inspect, or search the Registry for, a document filed to support an application for:

(a)

any document, evidence or thing to be kept confidential; or

• (b)

  any document or thing to be granted privilege from production.”.

5.   Order 72, rule 6 (Application for probate)

5.1

 Paragraphs 6 (1) (b) and (c):

Omit the paragraphs, substitute:

• “(b)

  that the testator has died and the date of death;

• (c)

  whether the testator was married at the date of death;

• (ca)

  if the applicant relies on section 20a of the Wills Act 1968 of the Australian Capital Territory (‘Effect of termination of marriage’)—the facts on which the reliance is based;”.

5.2

 Paragraph 6 (1) (f):

Omit the paragraph, substitute:

“(f)

that:

 (i) the testator was 18 years of age or more at the time the will was made; or

(ii) the testator made the will validly under section 8 of the Wills Act 1968 of the Australian Capital Territory (‘Minors—testamentary capacity’);”.

5.3

 Subrule 6 (1):

After paragraph 6 (1) (h), insert:

• “(ha)

  if:

 (i) the testator died after the commencement of the Wills (Amendment) Act 1991 of the Australian Capital Territory; and

 (ii) the applicant is unaware of the existence of any document, or part of a document, (other than the will the subject of the application) purporting to embody testamentary intentions of the testator;

 a statement to the effect that the applicant is not aware of the existence of such a document or part of a document;”.

6.   Order 72, rule 38 (Accounts)

6.1

 Omit the rule, substitute:

Filing etc. of accounts

“38.(1)  An executor or administrator referred to in subrule (3) must file the accounts relating to the execution or administration of the estate of the deceased not later than 12 months:

• (a)

  after the date of grant of probate or administration of the estate; and

• (b)

  if the grant is resealed—after the date on which it is resealed.

“(2)

When the executor or administrator files the accounts, he or she must  request the Registrar to set a date for passing them.

“(3)

Subrule (1) applies to an executor or administrator who is:

• (a)

  a creditor in relation to the estate of the deceased; or

• (b)

  a guardian of a minor who is a beneficiary of the estate of the deceased; or

• (c)

  the executor or administrator of an estate that will pass to a charitable or other public benevolent institution:

 (i) in whole; or

 (ii) in part, being a part determined by the Court, for the purposes of this rule, to be a substantial part; or

• (d)

  ordered by the Court or the Registrar to file and pass the accounts.”.

7.   Order 75b, rule 39 (Sealing of winding up order and notice of appointment of liquidator)

7.1

 Paragraph 39 (a):

Omit “Form 96 in the same form as the draft filed under paragraph (d) of subrule 38 (1); and”, substitute “Form 96; and”.

7.2

 Paragraph 39 (b):

Omit “Form 99 in the same form as the draft filed under paragraph (e) of subrule 38 (1); and”, substitute “Form 99; and”.

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NOTES

1. Notified in the Commonwealth of Australia Gazette on 31 March 1992.

 

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, 251 ,252, 294 ,416 and 472.