EXPLANATORY STATEMENT
Statutory Rules 1990 No. 129
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.
Order 26 of the Rules deals with the procedure allowing a defendant to make a payment into Court to satisfy the cause of action against that defendant.
Subrules 4A and 4B have been inserted in Order 26 Rule 1 to enable a defendant to make payment in other than by cash or by bond. A defendant, pursuant to the amendments, can make a payment into Court by lodging a security such as an interest bearing bond, irrevocable letter of credit, bank guarantee or other form of security to the satisfaction of the Registrar.
Subrule 6 has been inserted in Order 26 Rule 1 to provide for an allowance for interest to be included in the plaintiff’s claim or cause of action at the time a payment into Court is made.
Rule 1A is inserted in Order 26 to provide that in circumstances where a defendant counterclaims against a plaintiff and subsequently makes a payment into Court in satisfaction of the plaintiff’s claim, the defendant must specify which causes of action in the counterclaim (if any) are intended to be disposed of by the payment in.
The amendments to Rules 2 and 5 of Order 26 are consequent upon the amendment to Rule 1 of Order 26 and the insertion of Rule 1A.
Rule 4A of Order 26 is amended to put the Government Solicitor for the Australian Capital Territory and the Australian Government Solicitor in exactly the same position regarding their ability to pay into Court by bond.
Order 42A provides for the inclusion of an interest component after judgment, so that defendants are encouraged to pay their judgment debts without delay.
Order 42A has been redrafted to raise the post judgment interest rates in line with Treasury figures which represent the current average loan rate calculated by the Reserve Bank and reviewed regularly. The present rate
unaltered since 1/5/86 is 15%. The effect of the amendment is as follows:-
Judgment entered before 1.10.70
* Interest from date of judgment to 30/4/86 - 5%
“ “ 1/5/86 to 30/6/90 - 15%
“ “ 1/7/90 to payment - 20%
Judgment entered after 1/10/77 but before 1/5/86
* Interest from date of judgment to 30/4/86 - 10%
“ “ 1/5/86 to 30/6/90 - 15%
“ “ 1/7/90 to payment - 20%
Judgment entered after 1/5/86 but before 30/6/90
* Interest from date of judgment to 30/6/90 - 15%
* “ “ 1/7/90 to payment - 20%
Judgment entered after 1/7/90
* Interest from date of judgment to payment 20%
The amendments to Rules 15 and 16 of Order 43 reflect the increased interest provided for in Order 42A.
Rule 5 of Order 61 is amended consequent upon the repeal of Section 8(4) of the Supreme Court Act 1933 by the Statute Law (Miscellaneous Provisions) Act 1988 and the introduction of s. 8AAB providing for the exercise of jurisdiction by the Registrar.
Rules 1.01 and 5.01 of Order 61A are amended to correct typographical errors in the rules published on 24 October 1988.
Rule 59A has been inserted in Order 75A so that the Corporate Affairs Commission is put on notice of an application for reinstatement of a company. The reinstatement of a company may affect the rights and liabilities of the company’s former directors, shareholders and creditors other than the applicant for reinstatement. If the Commission is put on notice of such an application it may choose to exercise its rights under s.540 of the Companies Act 1981 to intervene in the proceedings and seek directions from the Court as to service of the application on other persons.
Overview
The Statutory Rules 1990 No. 129, issued by the authority of the Judges of the Supreme Court of the Australian Capital Territory, were enacted to amend the practice and procedure of the Court in civil actions, particularly in relation to the payment into Court by defendants to satisfy claims against them. This legislative instrument addresses the need to modernise and clarify the rules governing payments into Court, including allowing various forms of security beyond cash or bonds and providing for interest to be included in claims at the time of payment. Furthermore, it seeks to align the interest rates applied post-judgment with current economic conditions, thereby encouraging timely payment of judgment debts. The amendments reflect a policy objective of ensuring that the Court’s procedural rules are up-to-date and reflect current financial practices, while also maintaining fairness and transparency in civil litigation processes.
Scope and Application
This legislation amends the Rules of the Supreme Court of the Australian Capital Territory (ACT) and pertains to the practice and procedure of the Court in civil actions. It applies to defendants in civil actions who may choose to make a payment into Court to satisfy their cause of action. The amendments extend to the Government Solicitor for the ACT and the Australian Government Solicitor, ensuring they have the same ability to pay into Court by bond. The changes are specific to the ACT and do not extend beyond its jurisdiction. There are no stated exclusions or exemptions in the text provided, and the application of the rules is not contingent upon any particular threshold. The amendments are made through statutory rules issued under the authority of the Judges of the Supreme Court of the ACT and may be further extended or restricted through subordinate instruments, though this is not detailed in the text.
Key Provisions
The key provisions of this legislation pertain primarily to the amendment of the Rules of the Supreme Court of the Australian Capital Territory, specifically concerning the practice and procedure of the Court in civil actions. Under Order 26 of the Rules, amendments have been made to allow a defendant to make a payment into Court in ways other than cash or bond (Order 26 Rules 1(4A) and 1(4B)). This means that a defendant can now make a payment into Court using a security such as an interest-bearing bond, irrevocable letter of credit, bank guarantee or other form of security approved by the Registrar. Additionally, Order 26 Rule 1(6) has been inserted to permit an allowance for interest to be included in the plaintiff’s claim or cause of action at the time a payment into Court is made. Rule 1A of Order 26 further mandates that when a defendant counterclaims against a plaintiff and subsequently makes a payment into Court in satisfaction of the plaintiff’s claim, the defendant must specify which causes of action in the counterclaim (if any) are intended to be disposed of by the payment in.
The obligations imposed by these amendments include the requirement for defendants to lodge an acceptable form of security when making a payment into Court, as well as the necessity for plaintiffs to include an allowance for interest in their claims. When a defendant counterclaims and makes a payment into Court, they must also clearly specify which causes of action in the counterclaim they intend to satisfy with the payment. The amendments also mean that the Government Solicitor for the Australian Capital Territory and the Australian Government Solicitor now have the same options for paying into Court by bond, ensuring consistency in their respective practices. Furthermore, the Corporate Affairs Commission must be notified of any application for the reinstatement of a company, allowing it to exercise its rights under the Companies Act 1981 if it deems it necessary.
In terms of consequences for breach, the legislation does not explicitly outline criminal or civil penalties for non-compliance with these procedural requirements. However, failure to adhere to these rules could result in the Court denying the defendant’s payment into Court, potentially leading to further legal complications and costs. Moreover, if the Corporate Affairs Commission is not notified of an application for reinstatement of a company and it chooses to intervene, it may seek directions from the Court regarding the service of the application on other persons, which could affect the course and outcome of the proceedings.
The amendments also introduce new interest rates for post-judgment interest, as outlined in Order 42A. These rates are intended to encourage defendants to pay their judgment debts promptly. The rates vary depending on the date the judgment was entered, ranging from 5% to 20%. The amendments to Rules 15 and 16 of Order 43 and Rule 5 of Order 61 reflect these increased interest rates. Additionally, typographical errors in Rules 1.01 and 5.01 of Order 61A have been corrected to ensure clarity and accuracy in the Rules.