EXPLANATORY STATEMENT
Statutory Rules 1989 No.273
Issued by the Authority of the Judges of the Supreme Court of the Australian Capital Territory
AMENDMENT OF THE RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
These amendments relate to the practice and procedure of the Court in civil actions and in criminal proceedings.
Civil Actions
Order 4 rule 5 has been redrafted to enable a plaintiff to apply for summary judgment pursuant to Order 15 in all actions other than claims for libel, slander, malicious prosecution, false imprisonment or seduction or claims based on an allegation of fraud. In particular, the former rule did not enable a plaintiff to seek summary judgment in proceedings for possession in all cases. Under the new rule an applicant for possession may now seek summary judgment except where fraud is alleged.
Order 15 rule 1 has been amended to make it clear that an application for summary judgment may be made even though a defence has been delivered.
Criminal Proceedings
A new Part 11, comprised solely at this stage by Order 80, has been inserted to provide Rules of Court for criminal proceedings. Prior to this no rules had been made for the purpose of criminal proceedings and, indeed, the rules governing the Court’s civil jurisdictions were expressly stated not to be applicable to proceedings on the Crown Side of the Court or criminal proceedings. The new rules do not attempt to govern all aspects of practice and procedure in criminal matters. Rather they are intended to clarify doubts or uncertainty which existed in certain areas. Rules have not been made in relation to those areas of criminal proceedings which are governed by clear and well established practices and procedures existing in the common law.
The new Order 80 has four divisions. Each is discussed briefly below.
Division 1. This division provides an interpretation of a “criminal proceeding” for the purposes of the new Part 11. Its effect is to make the new rules applicable to a trial on
indictment, a proceeding on indictment where a plea of guilty is intended or entered and a committal for sentence pursuant to section 90A of the Magistrates Court Ordinance 1930. It also deals with the use of the forms contained in the new Eleventh Schedule.
Division 2. This division deals with the intitulement of documents to be used in an application for bail and makes provision for the giving of directions by the Court or Judge in such matters.
Division 3. This division deals with the issue and service of, and compliance with, subpoenas. The rules contained in it largely reflect the provisions of the Rules governing subpoenas in civil proceedings. However, a new and different procedure has been introduced in relation to the payment of conduct money and reasonable expenses of, and any loss reasonably incurred in, complying with a subpoena. Subrule 5.01 requires a party serving a subpoena to pay or tender, at the time of service of the subpoena, a sum sufficient to enable the person upon whom the subpoena is served to travel by reasonable means to the Court together with an undertaking to pay all reasonable expenses of, and any loss reasonably incurred in, complying with the subpoena. Subrule 5.03 provides that if a person served with a subpoena considers that the conduct money tendered is inadequate to compensate him or her for expense or loss reasonably incurred, he or she may, after having given to the person who caused the subpoena to be served not less than 7 days notice of his or her intention to apply, apply in writing to the taxing officer to determine the amount which is sufficient to compensate him or her for such expense or loss. The taxing officer’s determination is reviewable by a Judge of the Court by virtue of Order 65 rule 66 which is made applicable, mutatis mutandis, to such a determination.
There are no time limits imposed by the new rules on the service of any subpoena, as there are in the civil rules in relation to subpoenas for the production of documents and subpoenas to give evidence directed to medical experts.
Division 4. The only rule in this division allows any document required to be executed or any recognisance required to be entered into pursuant to an order or sentence of the Court or a Judge to be executed or entered into before the Registrar or a Justice of the Peace. The previous situation was that unless the sentencing Judge made a specific order granting authority to the Registrar or a Justice of the Peace, then the document had to be executed, or the recognisance entered into, before the sentencing Judge. This sometimes led to difficulties and delay if the need to grant the authority was overlooked.