EXPLANATORY STATEMENT
STATUTORY RULES 1983 No. 257
Issued by the authority of the Justices of the High Court of Australia
AMENDMENTS TO THE HIGH COURT RULES
Section 77N of the Judiciary Act provides : -
“A judgment debt under a judgment of the High Court carries interest at such rate as is fixed by the Rules of Court from the date as of which the judgment is entered.”
Order 43 Rule 2 of the High Court Rules provides that the rate of interest shall be 10%.
The provisions of the Judiciary Act and the Rules however do not specifically refer to interest on an amount of taxed costs. It is at present uncertain whether the date from which interest is to run, is the date of the entry of the judgment directing the costs to be taxed, or the subsequent date of the Certificate of Taxation.
There is some doubt as to whether there is any judgment debt (within the meaning of s. 77N of the Judiciary Act and Order 43A Rule 2) for costs until the amount of the costs is ascertained upon taxation. Section 77N would appear to be derived from s. 17 of the Judgments Act 1938 (U.K.). That section was differently applied at Common Law and in equity, but the equitable view, that interest does not run until the amount payable as costs is ascertained, finally prevailed in England in 1977.
The position in Australia varies, although a majority of States have made statutory provision for interest on costs to run from the date of a Certificate of Taxation.
Successful parties often do not tax their costs of proceedings until some substantial time after the date of judgment. To require a party to pay interest in respect of a period during which he could not be expected to make payment of the principal sum which remains unascertained until the Certificate of Taxation is given would appear to be unjust.
The new Rule 3 of Order 43A provides for interest at the rate of 10% to run from the date of the Certificate of Taxation.
The amendments to Order 59 are of an administrative nature. The amendment to Rule 6(1) will mean that a Registry will be open during normal office hours on every day. Previously Registries were closed of an afternoon during Court vacations.
The new Rule 7 will provide flexibility in the opening of a Registry for urgent business after hours. The rule provides that a Registry may be opened at the discretion of the Registrar and shall be opened at the direction of a Justice.
Rule 12(4) of Order 70 provides that after an appeal has been instituted, the Court or a Justice may grant a stay of execution or admit the appellant to bail.
Given the common practice of the Court in criminal cases to hear an application for special leave to appeal as if it were an appeal, the present rule is rarely used.
The new sub-rule 5 will enable the Court or a Justice in exceptional circumstances to grant a stay of execution or bail in the case of special leave applications.