EXPLANATORY STATEMENT
STATUTORY RULE 1986 No. 383
Issued by the authority of the Justices of the High Court of Australia
AMENDMENTS TO THE HIGH COURT RULES
1. Order 58 rule 8
Order 58 rule 8 is amended by deleting sub-rule (2) and inserting a new sub-rule. The effect of the sub-rule is to limit access by the public to some documents, such as affidavits, filed in the Registry until after those documents are admitted in evidence in Court.
Generally, all documents are available for searching upon payment of the prescribed fee. However, the Court is of the opinion that there are circumstances where affidavits, filed prior to an interlocutory hearing, may contain confidential or other material which, if published prior to a hearing, may embarass the parties, especially if the material is not relied upon in the proceedings or, as sometimes happens, the interlocutory application does not proceed.
In adopting sub-rule (2), the Court is following the trend of Courts in England and Australia to protect the confidentiality of material until such time as the material is admitted in evidence, or read in open Court.
2. Order 69A
Order 69A brings, under a separate Order, all the provisions relating to applications for special leave to appeal which previously had been contained in Order 70. It also introduces new provisions, the object of which is, to give the Court more effective control of its case flow.
The main differences between the proposed and existing rules are:
(a) The initiating document is the “application” as distinct from a notice of motion. It is a simple document stating whether part or the whole of the judgment below is sought to be appealed, and refers to the supporting affidavit for the grounds of the application. It also requires a respondent to enter an appearance: see rule 6.
(b) Rule 4 expands the existing rule 2(6) of Order 70 giving more guidance to practitioners as to the form and content required in the affidavit in support and the documents which should be exhibited to the affidavit.
(c) Provision is made in Rule 7 for the preparation of an application book in accordance with an index prepared and settled by the Registrar after consultation with the parties.
This is an important provision in that it enables the Registrar to maintain effective control of the application. Once the index is prepared by the Registrar, the applicant has thirty (30) days within which to file the requisite number of application books (see rule 7(6)). Failure to comply with the time prescribed in rule 7(6) results in the application being deemed to be abandoned, unless the Court or a Justice otherwise orders (see rule 10(1)).
(d) Rule 8 gives the Registrar power to give any directions concerning any matter in connection with the preparation of applications for hearing thus ensuring that matters are prepared expeditiously.
It is envisaged that, save in exceptional circumstances, applications for special leave will be ready for hearing within sixty (60) days after the filing of the application.
3. Order 70
The main differences between the proposed and existing rules are:
(a) Rule 2 requires a notice of appeal to be in the form as set out in form numbered 65 in the First Schedule to the Rules.
(b) Rule 4 requires a notice of appeal to be filed in the office of the Registry in the State or Territory in which the proceedings in the Court below were commenced.
(c) Rule 6 provides that, although a respondent may file a notice of cross-appeal, a cross-appellant will only be entitled to proceed with the cross-appeal if special leave is granted when the appeal is called on for hearing.
Sub-rule 5 introduces the concept of a notice of contention in cases where the respondent contends that a matter of fact or law was erroneously decided below but where he does not seek to discharge or vary the judgment or order.
(d) Rule 9 provides for the assembly of documents to enable the settling of an index to the appeal book. Under the existing rules, the parties are required to obtain certified copies of documents, exhibits and the reasons for judgment of the Courts below. This requirement has led to undue delays in the preparation of appeal books and has been omitted.
(e) Rule 13 provides for the discontinuance of appeals and for consequential orders for costs.
(f) The Registrar is empowered by Rule 14 to give such directions, as he thinks necessary, to enable appeals to be prepared and heard expeditiously.
(g) Rule 15 provides for the dismissal of an appeal for want of prosecution or for non-compliance with the rules. An application for dismissal on these grounds may be made by a respondent or by the Court of its own motion.
The object of the new Order 70 is to maintain continuity of the Court’s case load. This can best be achieved by the implementation of a time scale for the timely disposition of appeals. The time scale provided by the rules will enable an appeal to be ready for hearing within a maximum of ninety (90) days from the institution of the appeal.
4. Amendments to the First Schedule
Provision is made for precedent forms to enable practitioners to prepare their documentation in accordance with the Rules.
SR 406/86