EXPLANATORY STATEMENT
STATUTORY RULES 1982 No. 164
Issued by the authority of the Justices of the High Court of Australia
AMENDMENTS TO THE HIGH COURT RULES
Order 39 of the High Court Rules embodies the practice relating to affidavits and depositions.
Rule 7 of Order 39 specifies the persons before whom affidavits may be sworn. The rule provides that affidavits may be sworn only before a limited class of designated persons, such as a Justice, a Registrar, Commissioners for taking affidavits for the purposes of the Court and proceedings in the Court, a Notary Public or a Justice of the Peace.
The purpose of the new sub-rule is to widen the class of persons before whom affidavits may be sworn, to include any person having authority to take and receive affidavits for the purposes of the Federal Court of Australia or the Supreme Court of a State or Territory.
Rules 19 and 20 of Order 39 preclude affidavits being sworn before the solicitor acting for the party on whose behalf the affidavit is to be used, an agent or correspondent of that solicitor, his clerk or his partner, or the party himself.
It may be observed that s.45 of the Federal Court of Australia Act 1976 (Cth) is in terms analogous to those of the new sub-rule 7(1), and there is no provision either in that Act or in the Federal Court Rules for any of the disqualifications set out in rules 19 and 20.
The repeal of rules 19 and 20 will therefore provide uniformity in the practice of both the High Court and the Federal Court in respect of the swearing of affidavits.