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.
Overview
The Statutory Rules 1989 No. 273, issued by the Authority of the Judges of the Supreme Court of the Australian Capital Territory, was enacted to address gaps and ambiguities in the practice and procedure of the Court concerning civil actions and criminal proceedings. This legislation specifically aimed to refine the process for obtaining summary judgments in civil cases and to establish clear rules for criminal proceedings, which previously lacked formal regulation. The amendments introduced in the rules allow plaintiffs to apply for summary judgment in most civil actions, excluding specific claims such as libel and fraud, while also providing a framework for criminal proceedings through the introduction of Part 11, Order 80. The policy objective of these amendments is to enhance the efficiency and clarity of court procedures in both civil and criminal matters within the Australian Capital Territory.
Scope and Application
The Statutory Rules 1989 No. 273, issued by the authority of the Judges of the Supreme Court of the Australian Capital Territory, amend the practice and procedure of the Court in both civil actions and criminal proceedings. These amendments seek to streamline the process and address certain procedural uncertainties. For civil actions, the redrafted Order 4 rule 5 allows plaintiffs to apply for summary judgment in all actions except those involving libel, slander, malicious prosecution, false imprisonment, seduction, or fraud allegations. The amendments also clarify that summary judgment applications can be made even after a defence has been delivered, as per Order 15 rule 1. In criminal proceedings, the introduction of a new Part 11, consisting of Order 80, establishes specific rules for the first time. This new order covers various aspects, such as the interpretation of "criminal proceeding," the application for bail, the issuance and service of subpoenas, and the execution of documents or recognisances before the Registrar or a Justice of the Peace. The rules governing subpoenas in criminal proceedings now include provisions for adequate conduct money and compensation for expenses or losses incurred. These amendments apply within the jurisdiction of the Australian Capital Territory and do not extend beyond it.
Key Provisions
The primary amendments outlined in Statutory Rules 1989 No. 273 pertain to civil actions and criminal proceedings within the Supreme Court of the Australian Capital Territory. For civil actions, Order 4 rule 5 now allows a plaintiff to apply for summary judgment under Order 15 in most cases, except for specific claims such as libel, slander, malicious prosecution, false imprisonment, seduction, or those based on fraud allegations (Order 4 rule 5). This amendment expands the scope of claims eligible for summary judgment, particularly for possession claims where fraud is not alleged. Order 15 rule 1 has been clarified to permit the application for summary judgment even after a defence has been delivered (Order 15 rule 1).
The legislation introduces a new Part 11, comprising Order 80, specifically for criminal proceedings. This addition addresses existing ambiguities and provides a structured framework for these proceedings. Division 1 of Order 80 interprets "criminal proceeding" to include trials on indictment, pleas of guilty, and committals for sentence, and it outlines the use of forms from the Eleventh Schedule (Order 80 Division 1). Division 2 deals with the intitulement of bail application documents and allows for court directions in such matters (Order 80 Division 2). Division 3 addresses subpoenas, aligning many provisions with civil rules but introducing a new procedure for payment of conduct money and expenses, with the ability to apply for adequate compensation if the initial amount is deemed insufficient (Order 80 Division 3). Lastly, Division 4 allows documents and recognisances to be executed before the Registrar or a Justice of the Peace, unless the sentencing Judge specifies otherwise, streamlining the execution process (Order 80 Division 4).
The amendments impose specific obligations on parties involved in civil and criminal proceedings. For civil actions, plaintiffs must adhere to the expanded criteria for seeking summary judgment, ensuring their claims fall outside the exceptions listed. In criminal proceedings, parties must follow the new rules regarding the service and payment for subpoenas, and the execution of documents and recognisances before authorised officials. These obligations aim to clarify and standardise practices within the Court.
For breaches of these new rules, the legislation does not explicitly detail specific penalties. However, the general framework of the Supreme Court of the Australian Capital Territory implies that violations could result in civil or criminal consequences, including fines or other sanctions as deemed appropriate by the Court. The exact penalties would be determined based on the nature and severity of the breach, following established legal principles and precedents.