High Court Rules (Amendment)

Statutory Rules 1953, No. 46.(b)

(As of Thursday the thirtieth day of April, 1953)

PURSUANT to the Judiciary Act 1903-1950 and to all other powers thereunto enabling, it is ordered as follows:—

That the High Court Rules, being Statutory Rules 1952, No. 23, made as of Saturday the twelfth day of April, 1952, as amended by Statutory Rules 1953, No. 1, made as of Tuesday the sixteenth day of December, 1952, be further amended in the manner hereinafter appearing, that is to say:—

Interpretation.

1. Rule 5 of Order 1 is amended—

(a) by omitting the definitions of “affidavit” or “statutory declaration”, “judgment”, “matter”, “taxing officer” and “Territory”;

(b) by omitting from the definition of “person of unsound mind” the words “of Territory” and inserting in their stead the words “or Territory”; and

(c) by omitting from paragraph (b) of the definition of “proper officer” the words “be directed” and inserting in their stead the word “directed”.

Endorsement where the claim is liquidated.

2. Rule 4 of Order 3 is amended by omitting sub-rule (3.) and inserting in its stead the following sub-rules:—

“(3.) The plaintiff shall be at liberty to state for costs a sum of six pounds six shillings (£6. 6. 0). If judgment is entered in the action in default of appearance in pursuance of Order 12, rule 3, the amount of costs included in the judgment shall be the said sum of six pounds six shillings (£6. 6. 0) together with four pounds four shillings (£4. 4. 0) for costs of judgment in addition to mileage.

“(4.) Unless the writ is endorsed with the amounts mentioned in sub-rule (3.), the defendant notwithstanding that he has paid such costs may have the costs taxed, and if more than one-sixth is disallowed the plaintiff’s solicitor shall pay the costs of taxation.”.

Admiralty, arrest warrant after affidavit.

3. Rule 8 of Order 5 is amended—

(a) by omitting from paragraph (f) of sub-rule (3.) the word “annexed” and inserting in its stead the word “exhibited”; and

(b) by omitting from sub-rule (4.) the word “annexed” and inserting in its stead the word “exhibited”.

When service required, how effected.

4. Rule 2 of Order 9 is amended by inserting in sub-rule (1.), before the word “service”, the word “personal”.

5. Rule 11 of Order 10 is repealed and the following rule inserted in its stead:—

Air Mail.

“11. The Court or a Justice may for the purpose of effecting service give leave to transmit any document by air-mail.”.

(b) Made under the Judiciary Act 1903-1950 on 30th April, 1953; notified in the Gazette on 14th May, 1953.

Mode of entering appearance; memorandum and duplicate.

6. Order 11 is amended—

(a) by omitting sub-rule (2.) of rule 3 and inserting in its stead the following sub-rule:—

“(2.) The officer shall—

(a) seal the memorandum of appearance and the duplicate memorandum of appearance with a seal bearing the words “Appearance entered” and showing the date on which the seal is affixed; and

(b) return the duplicate memorandum of appearance to the person entering the appearance.”; and

(b) by adding at the end of rule 7 the following sub-rule:—

“(3.) A copy of the notice shall be filed by the plaintiff in the Principal Registry.”.

Detention of goods.

7. Order 12 is amended—

(a) by omitting from sub-rule (2.) of rule 5 the word “ascertained” and inserting in its stead the word “assessed”;

(b) by omitting from sub-rule (3.) of rule 5 the words “ascertainment” and “ascertained” and inserting in their stead the words “assessment” and “assessed” respectively; and

Detention of goods; several defendants.

(c) by omitting from sub-rule (3.) of rule 6 the words “ascertainment” and “ascertained” and inserting in their stead the words “assessment” and “assessed” respectively.

Directions as to trial.

8. Rule 6 of Order 14 is amended by omitting from paragraph (b) the word “as” (first occurring).

Court may appoint or dispense with legal personal representative.

9. Rule 56 of Order 16 is amended by inserting in sub-rule (1.), before the word “interested”, the words “who was”.

10. Rule 12 of Order 23 is repealed.

Admiralty Caveat Payment Book.

11. Rule 7 of Order 26 is amended by omitting from sub-rule (1.) the word “demurrer” (last occurring) and inserting in its stead the words “setting down”.

Demurrer not entered for argument to be held sufficient.

12. Rule 4 of Order 27 is repealed.

Staying action until costs paid.

13. Rule 16 of Order 28 is repealed and the following rule inserted in its stead:—

Effect of judgment by default.

“16. Where a plaintiff enters judgment under the provisions of this Order against a defendant who has made default in delivering a defence, that entry of judgment does not, nor does the issue of execution on the judgment, prejudice his right to proceed against another defendant.”.

14. Rule 7 of Order 32 is repealed and the following rule inserted in its stead:—

Objections to interrogatories by answer.

“7. An objection to answering an interrogatory may be taken in the affidavit in answer—

(a) on the ground that it is scandalous or irrelevant, not bona fide for the purpose of the proceeding, unreasonable, prolix, oppressive or unnecessary;

(b) on the ground that the matters inquired into are not sufficiently material at that stage; or

(c) on any other ground.”.

Consent orders.

15. Rule 23 of Order 44 is amended by omitting the words “, duly verified by affidavit,”.

Execution against garnishee.

16. Rule 4 of Order 46 is amended by inserting in sub-rule (2.), before the words “is sufficient”, the word “as”.

Service of notice of motion with writ.

17. Order 51 is amended—

(a) by omitting from rule 10 the words   “, without special leave,”; and

(b) by omitting from rule 11 the words   “, without special leave,”.

Use of Seal.

18. Rule 2 of Order 58 is amended by omitting the words “That seal of the Court known as the Great Seal” and inserting in their stead the words “The Seal of the High Court of Australia”.

Taking of proceedings in vacation.

19. Rule 4 of Order 60 is amended by adding at the end thereof the following sub-paragraph:—

“(n) the giving of security under rules 9 and 10 of Order 70.”.

Hearing by Single Justice or Judge.

20. Order 65 is amended—

(a) by omitting from rule 4 the figures “1904” and inserting in their stead the figures “1903”;

Setting down for hearing.

(b) by omitting from rule 15 the words “occurring after the expiration of twenty-eight days from the filing of the Notice of Appeal” and inserting in their stead the words “appointed to commence after the Notice of Appeal has been filed”; and

(c) by omitting from rule 19 the words “occurring after the expiration of twenty-eight days from the filing of the special case” and inserting in their stead the words “appointed to commence after the special case has been filed”.

Appeal Rules.

21. Order 70 is amended—

(a) by omitting sub-rule (4.) of rule 9 and inserting in its stead the following sub-rule:—

“(4.) If security is not given in accordance with this rule, the Court or a Justice may on the application of any respondent direct that the appeal be dismissed.”;

(b) by omitting sub-rule (4.) of rule 10 and inserting in its stead the following sub-rule:—

“(4.) The provisions of sub-rules (2.), (3.) and (4.) of the last preceding rule apply when security is ordered under this rule, and sub-rules (2.) and (3.) of the last preceding rule apply when security is given voluntarily.”;

(c) by repealing rule 11;

(d) by inserting in sub-rule (2.) of rule 12, after the words “Except in a criminal proceeding”, the words “and except in the case of an appeal from an order made under this rule”; and

(e) by inserting in rule 15 after sub-rule (1.) the following sub-rule:—

“(1A.) An appeal shall be set down at least twenty-one days before the day appointed for the commencement of the sittings.”

and after sub-rule (3.) the following sub-rule:—

“(3A.) If the appellant does not set down the appeal for hearing as prescribed by this rule or any order made thereunder, any respondent may apply to the Court, by motion upon notice, for an order dismissing the appeal for want of prosecution.”.

Scale of fees.

22. The Third Schedule is amended—

(a) by omitting item 2 and inserting in its stead the following item:—

(b) by omitting from item 7 the word “Great”;

(c) by inserting in item 11, after the word “prohibition”, the word “, procedendo”;

(d) by inserting after item 16 the following item:—

(e) by omitting item 33 and inserting in its stead the following item:—

(f) by omitting item 35 and inserting in its stead the following item:—

(g) by omitting item 37 and inserting in its stead the following item:—

(h) by inserting in item 55, after the word “prohibition”, the word “, procedendo”; and

(i) by inserting after item 68 the following item:—