STATUTORY RULES.

1907. No. 125.

HIGH COURT OF AUSTRALIA.

RULES OF COURT.

As of Thursday, the twelfth day of December, a.d. 1907.

It is ordered as follows:—

1. The following Rules shall stand as part of Order IV. of the Rules of Court in the Schedule to the High Court Procedure Act 1903:—

Indorsement to show representative capacity.

2a. If the plaintiff sues, or the defendant or any of the defendants is sued, in a representative capacity, the indorsement shall show in what capacity the plaintiff or defendant sues or is sued.

Special indorsement of liquidated claims.

2b. In any action in which the plaintiff seeks to recover a debt or liquidated demand in money payable by the defendant, with or without interest, the writ of summons may be specially indorsed with particulars of the nature of his claim, and of the amount, if any, sought to be recovered.

Further indorsement in case of liquidated claim.

2c. When the plaintiff’s claim is for a debt or liquidated demand only, with or without interest, the indorsement, besides stating the nature of the claim, shall state the amount claimed for debt, or in respect of such demand, and for costs, respectively, and shall further state that upon payment thereof within the time allowed for appearance, further proceedings will be stayed. The defendant may, notwithstanding such payment, have the costs taxed, and if more than one-sixth be disallowed the plaintiff’s solicitor shall pay the costs of taxation.

The plaintiff may claim for costs under this Rule the following amounts, exclusive of mileage:—For costs on issuing the summons, the sum of £4 14s. 6d., and a further sum of £4 14s. 6d. for costs of judgment in default of appearance; and when judgment is so obtained such costs shall not be subject to taxation.

Ordinary account.

2d. In an action in which the plaintiff desires to have an account taken in the first instance, the writ of summons shall be specially indorsed with a claim that such account be taken.

II. The following Rules shall stand as Orders XXXIIIa, XXXIIIb, XXXIIIc, XLIIIa, and XLIIIb of the said Rules of Court:—

Order XXXIIIa.

motions in general.

Title of notice of motions.

1. When a motion is made upon notice in a cause or matter, the notice shall be entitled in the cause or matter. When a cause or matter is originated by notice of motion, the notice shall be entitled in the matter

of the Statute under which the motion is to be made, and in the matter of the application of the applicant, naming him, for the relief sought, describing briefly the nature of such relief.

Originating notices.

2. When a cause or matter is originated by a notice of motion, a copy of the notice shall be filed before the motion is heard. In other cases a copy need not be filed.

Notice of motion to name Court.

3. A notice of motion shall state whether it is intended to be made before the Full Court or a Justice in Court, and the time and place at which it is intended to be made, and shall be signed with the name of the party intending to move, or his solicitor, if he sues or appears by a solicitor, and addressed to the party to be affected by the order sought.

To be moved by counsel in order of seniority.

4. On days on which the Court sits to hear motions, they shall, unless the Court otherwise orders, be heard before the matters set down in the paper are called on for hearing, and Counsel may move them in the order of their seniority.

Costs of abandoned motions.

5. If a motion of which notice has been given is not moved at the sitting of the Court for which notice was given, or at the first adjournment of that sitting at which the motion could be made, the party to whom the notice was given may, on filing an affidavit stating the facts, obtain an order for the payment to him by the party by whom the notice was given of his costs of the motion, and such order may be drawn up and signed by the Registrar without other warrant than this Rule. But any such order may be set aside by the Court or a Justice upon sufficient cause shown.

Where notice of motion to be given. Ex parte applications.

6. Except as by these rules otherwise provided, a motion or application shall not be made without previous notice to the party to be affected thereby. But the Court or a Justice, if satisfied that the delay caused by giving notice would, or might, entail irreparable or serious mischief, may make an order ex parte upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the Court or Justice may think just, and any party affected by any such order may move to set aside.

Length of notice of motion.

7. Unless the Court or a Justice gives special leave to the contrary, which leave may be obtained ex parte, there must be at least two clear days between the service of a notice of motion and the day named in the notice for making the motion.

Motions may be dismissed or adjourned where necessary notice not given.

8. If, on the hearing of a motion, the Court is of opinion that any person to whom notice has not been given ought to have notice, the Court may either dismiss the motion, or may adjourn the hearing thereof, in order that such notice may be given, upon such terms, if any, as the Court may think fit.

Trial of questions of fact.

9. The Court may order that any question of fact arising upon a motion shall be tried in any manner in which any question or issue of fact in an action may be tried.

Service of notice of motion with originating proceedings.

10. A plaintiff may, without any special leave, serve any notice of motion upon any defendant along with the originating proceeding, or at any time after service of the originating proceeding, and before the time, if any, limited for the appearance of such defendant.

Service of notice. Defendant served but not appearing.

11. A plaintiff may, without any special leave, serve any notice of motion, or any other notice, or any petition or summons, upon any defendant, who, having been duly served with the originating proceeding and required to appear, has not appeared within the time limited for that purpose.

Notice of affidavits.

12. A list of all affidavits intended to be used in support of a motion shall be served with the notice of motion, and no other affidavits shall be used, or other evidence given, by the party moving on the hearing without the leave of the Court.

When the party moving intends to adduce oral evidence on the hearing of a motion, notice of such intention shall be served with the notice of motion.

Copies of affidavits on originating motions to be served.

13. Copies of all affidavits intended to be used in support of a motion by which a cause or matter is originated shall be served with the notice of motion.

Order XXXIIIb.

entry of judgments.

Mode of entry.

1. Every judgment shall be entered by the proper officer in a book kept for that purpose. The party entering the judgment shall deliver to the officer a copy of the whole of the pleadings, if any, not already filed.

Date of judgment pronounced in Court.

2. When a judgment is pronounced by the Court, the entry of the judgment shall be dated as of the day on which such judgment is pronounced, unless the Court otherwise orders, and the judgment shall take effect from that date: Provided that by special leave of the Court a judgment may be ante-dated or post-dated.

Date of entry of other judgments.

3. In any other case the entry of judgment shall be dated as of the day on which the requisite documents are left with the proper officer for the purpose of such entry, and the judgment shall take effect from that date.

Time to be stated for doing any act ordered to be done.

Memorandum to be indorsed.

4. Every judgment or order made in any cause or matter requiring any person to do any act thereby ordered to be done shall state the time, or the time after service of the judgment or order, within which the act is to be done, and there shall be indorsed upon the copy of the judgment or order served upon the person required to obey the same a memorandum in the words or to the effect following, viz.:—

“If you, the within-named A.B., neglect to obey this judgment (or order) by the time therein limited, you will be liable to process of execution for the purpose of compelling you to obey the judgment (or order).”

Judgment on production of affidavit or document.

5. When by any Statute or these Rules, or otherwise, it is provided that any judgment may be entered upon the filing of any affidavit or production of any document, the officer shall examine the affidavit or document produced; and, if the same is regular and contains all that is by law required, he shall enter judgment accordingly.

Judgment on production of order or certificate.

6. When by any Statute or these Rules, or otherwise, it is provided that any judgment may be entered pursuant to any order or certificate, or to the return to any writ, the production of such order or certificate sealed with the seal of the Court, or of such return, shall be a sufficient authority to the officer to enter judgment accordingly.

Judgment on Registrar’s certificate.

7. When reference is made to the Registrar to ascertain the amount for which final judgment is to be entered, the Registrar’s certificate shall be filed in the Registry before judgment is entered.

Judgment by consent when party appears by a solicitor.

8. When a party sues or appears by solicitor, a consent order for entering judgment against such party shall not be made unless the consent of the party is given by his solicitor or the town agent of his solicitor.

Consent of party in person.

9. When the plaintiff sues in person, or the defendant has not appeared, or has appeared in person, a consent order for entering judgment against such party shall not be made unless the party attends before a Justice and gives his consent in person, or unless his written consent is attested by a solicitor acting on his behalf, unless the party is himself a barrister or solicitor.

Entry of satisfaction.

10. A memorandum of satisfaction of a judgment may be entered upon a consent to the entry, signed by the party entitled to the benefit of the judgment, and attested and verified by the affidavit of the attesting witness, being filed in the Registry.

If the attesting witness is not a barrister or solicitor, the approval of a Justice must be obtained, which may be indorsed on the affidavit.

Order XXXIIIc.

drawing up judgments and orders.

By whom judgments and orders to be drawn up.

1. Judgments and orders, whether given or made in Court or in Chambers, or by default, shall be drawn up by the Registrar or under his direction, unless otherwise directed by the Court or a Justice.

Documents to be filed before judgment or order signed.

2. No judgment or order founded, in whole or in part, on a petition, or on affidavits, written admissions, or other written documents, shall be signed until such petition, admissions, affidavits, or other documents, have been filed in the Registry.

Documents to be left with Registrar on bespeaking judgment or order.

3. At the time of bespeaking a judgment or order, the party bespeaking the same shall leave with the Registrar his counsel’s brief, if any, and such other documents as may be required by the Registrar for the purpose of enabling him to draw up the same

Registrar may require party to submit draft.

4. The Registrar may require the party bespeaking a judgment or order to prepare a draft of the same and leave the same in the Registry for his use or assistance, and may accept the draft so prepared and left as his own draft of the judgment or order, with such alterations, if any, as he may think fit.

Time for bespeaking judgment or order.

5. Every judgment or order shall be bespoken, and the requisite documents mentioned in the last preceding Rule but one shall be left with the Registrar, within seven days after the judgment or order is finally given or made by the Court or Justice.

Where judgment or order not be spoken.

6. If any judgment or order is not bespoken, and the requisite documents are not left with the Registrar within the time prescribed by the last preceding Rule, the Registrar may decline to draw up the judgment or order without the direction of the Court or a Justice.

Appointment for settling judgment or order.

7. At the time of delivering out the draft of a judgment or order which, in the opinion of the Registrar, ought to be settled in the presence of the parties, he shall deliver out to the party on whose application the draft has been prepared an appointment in writing of a time for settling the same.

Notice of appointment to be served on opposite party.

8. A notice of the appointment shall be served on the opposite party one clear day at least before the time thereby appointed for settling the draft, and the party serving the notice and the party so served shall attend the appointment, and shall produce to the Registrar counsel’s briefs, if any, and such other documents as may be necessary to enable him to settle the draft.

Service of notice of appointment.

9. Service of the notice of appointment shall be effected by leaving it at the place of service of the party to be served, or by transmitting it by post to such party at such place for service.

Proof of service.

10. At the time appointed for settling the draft the Registrar shall satisfy himself, in such manner as he may think fit, that service of the notice of appointment has been duly effected, and for that purpose may require evidence on oath.

Appointment for passing judgment or order.

11. When the draft has been settled by the Registrar, he shall name a time in the presence of the several parties, or else deliver out an appointment in writing of a time for passing the judgment or order; and in the latter case notice of the appointment shall be served by the party to whom the appointment is delivered on the opposite party, and the service shall be proved in the manner prescribed by the last two preceding Rules with reference to an appointment to settle the draft of a judgment or order.

Default in attending appointment with documents.

12. If any party fails to attend the Registrar’s appointment for settling the draft of a judgment or order, or fails to produce his counsel’s briefs and such other documents as the Registrar may require to enable him to settle such draft, or to pass such judgment or order, the Registrar may proceed to settle the draft, or to pass the judgment or order, in his absence, and the Registrar shall be at liberty to dispense with the production of counsel’s briefs, or with the production of such documents or papers as aforesaid, and to act upon such evidence as he may think fit of the actual appearance by counsel of the party failing to attend, or may require the matter to be mentioned to the Court or a Justice.

Adjournment of appointments.

13. The Registrar may adjourn any appointment for settling the draft of a judgment or order, or for passing a judgment or order, to such time as he may think fit, and the parties who attended the appointment shall be bound to attend such appointment without further notice.

Settling and passing judgment or order without any appointment.

14. Notwithstanding the preceding Rules of this Order, the Registrar may, in any case in which he may think it expedient so to do, settle and pass any judgment or order, without making any appointment for either purpose and without notice to any party.

15. Every judgment or order when settled and passed shall be engrossed by the party having the carriage of the judgment or order.

Judgments and orders to be filed.

16. (1.) Every judgment and order shall be kept in the Registry as a record.

Duplicates.

(2) A duplicate of every judgment or order shall, one clear day after the same has been entered, and in urgent cases sooner if so directed by the Registrar, be signed and sealed by the Registrar, without fee, and delivered to the party having the carriage of the judgment or order; and whenever any rule or order or the practice of the Court requires the production of a judgment or order, it shall be sufficient to produce the duplicate.

(3) A further duplicate may at any time, with the sanction of the Registrar and on payment of the prescribed fee, be issued on production of the duplicate first issued, or on the Registrar being satisfied of the loss of that duplicate, and that the person applying is properly entitled to it.

(4) A judgment or order shall not be amended except on production of the duplicate or duplicates, or the duplicate last issued, as the case may be, which shall, after the original order has been amended, be also amended in accordance therewith, under the direction of the Registrar, and the amendment in the duplicate shall be sealed under the like direction.

Certificate for special allowance.

17. The Registrar shall, if requested to do so by any party at the time of any attendance before him for the purpose of settling the draft of a judgment or order, or of passing a judgment or order, certify, for the information of the taxing officer, whether in his opinion any special allowance ought to be made on taxation of costs in respect of such attendance, or in respect of the preparation of the draft by any party whom he has requested to prepare the same, on the ground that the judgment or order is of a special nature, or of unusual length or difficulty.

When orders need not be drawn up.

18. When an order is made which does not embody any special terms or include any special directions, but merely gives leave to some officer of the Court other than a solicitor to do some act, or merely enlarges the time for taking some proceeding or for doing some act, or merely gives leave—

(a) To issue a writ, not being a writ of attachment; or

(b) To amend any writ or other proceeding; or

(c) To enter a judgment or order nunc pro tunc; or

(d) To file any document or to take a document off the file;

or merely directs a clerical mistake or an error appearing in a judgment or order to be corrected, it shall not be necessary to draw up such order unless the Court or Justice so directs; but the production of a note or memorandum of such order, signed or initialled by the Justice or Registrar (which may be made upon any document filed in the cause or matter), shall be sufficient authority for such enlargement of time, issue, amendment, entry, filing or other act. A direction that the costs of any such order shall be costs in any cause or matter shall be deemed a special direction within the meaning of this Rule.

Order XLIIIa.

appeals in matters relating to patents and trade marks.

How instituted.

1. Appeals from decisions of the Commissioner of Patents or Registrar of Trade Marks, or Law Officer under the Trade Marks Act, shall be instituted by notice of motion, which shall be filed in the Principal Registry, and shall be served on the Commissioner, or Registrar, or Law Officer, and upon such other persons, and within the same time, and in the same manner, as if the appeal were from a final judgment of a Justice of the High Court.

Sitting.

2. If the motion is to be made before the Full Court it shall, unless otherwise ordered by the Court or a Justice, be set down for hearing at the first Sittings of the Court appointed to be held at the Principal Seat of the Court after the expiration of one month from the service of the notice of motion. If the motion is to be heard by a single Justice in Court it shall be set down for hearing on a day appointed for that purpose. Ten days’ notice shall be given by the appellant to the respondent of the day for which the appeal has been set down to be heard.

Cross appeals.

3. It shall not be necessary for a respondent to give notice of cross appeal, but, if a respondent intends upon the hearing of an appeal to contend that the decision appealed from should be varied, he shall, four days before the day for which the appeal has been set down to be heard, give notice of his intention to such of the parties as may be affected by such contention. The omission to give such notice shall not diminish the powers of the Court when hearing the appeal, but may, in the discretion of the Court, be ground for an adjournment of the hearing, or for a special order as to costs.

Documents to be forwarded to Principal Registry.

4. The Commissioner or Registrar, as the case may be, shall forthwith after service of the notice of motion on him forward to the Principal Registrar of the High Court copies of all such documents as may be necessary for the hearing of the appeal.

Papers for Justices.

5. Four days at least before the day for which the appeal has been set down to be heard, the appellant shall lodge in the Registry situated in the place where the appeal is to be heard, a copy of the documents referred to in the last preceding Rule for the Justice, or each of the Justices, by whom the appeal is to be heard. The cost of copies of unnecessary documents will not be allowed.

Order XLIIIb.

revocation of patents.

Title.

1. A petition for revocation of a patent shall be addressed to the High Court.

Form.

2. Every petition shall contain a statement, as brief as the nature of the case will allow, of the material facts on which the petitioner relies, but not of the evidence by which they are to be proved, nor, except so far as they are material, the contents of documents. The petition shall, when necessary, be divided into paragraphs, numbered consecutively, and each containing, as nearly as may be, a separate allegation. Dates, sums, and numbers may be expressed in figures or in words. Signature of counsel shall not be necessary, but the petition shall be signed by the solicitor of the party, or by the party himself, if he proceeds in person.

Persons to be served.

3. At the foot of every petition, and of every copy thereof, a statement shall be made of the persons, if any, intended to be served therewith, and, if no person is intended to be served, a statement to that effect shall be made at the foot of the petition.

Filing.

4. Every petition shall be filed.

Notice to appear.

5. Upon the filing of the petition the proper officer shall, if it is intended to be served, indorse thereon a notice requiring the parties respondents to the petition to enter an appearance in the cause within the same time, and at the same place, as if the petition were a writ of summons in an action.

Service.

A copy of such notice sealed with the office seal shall be indorsed upon every copy of the petition intended for service.

6. The service of a petition shall be effected by serving the party with a copy of the petition, indorsed as aforesaid, in the same manner, in which a writ of summons in an action is required to be served, except that the original petition and memorandum need not be produced.

Appointment of time for hearing.

7. At any time after the time limited for appearance either party may apply to a Justice to appoint a day and place for hearing the petition.

Dismissal for want of prosecution.

8. If the petitioner does not within six months after he is first entitled to do so apply for the appointment of a time and place for hearing the petition, any respondent may apply to the Court or a Justice to dismiss the petition for want of prosecution, and on the hearing of such application the Court or Justice may order the petition to be dismissed accordingly, or make such other order, and on such terms, as the Court or Justice may seem just.

III. The following Rule shall be added to Order XL.:—

Signature of Justice’s order.

9. An order made by a Justice in Chambers and signed by the Registrar and sealed with the office seal shall be sufficiently authenticated.

IV. The following Rule shall stand as Rule 8a of Order XLIX.:—

8a. The following Regulations shall be observed with respect to printed documents:—

1. The document shall be printed on cream wove white foolscap folio paper, in pica type, leaded, with an inner margin about three-quarters of an inch wide, and an outer margin about two inches and a half wide, and the folios shall be numbered consecutively in the margin.

2. The document shall be printed by direction of the party on whose behalf it is to be filed or lodged.

3. Unless otherwise ordered by the Court or a Justice the expense of printing documents required to be printed shall be allowed as costs of the party on whose behalf they are required to be filed or lodged.

4. The party printing shall on demand in writing furnish to any other party any number of printed copies not exceeding ten upon payment therefor at the rate of 2d. per folio for one copy and id. per folio for every other copy.

V. Rules 3 and 4 of the Rules of the 12th of October, 1903, shall stand as Rules 14 and 15 of Order XLVI.

VI. The Appeal Rules shall be amended as follows:—

1. Rules 14 and 15 of Section I. shall be repealed and the following Rules substituted for them:—

Papers for Justices.

14. Four days at least before the commencement of the sitting for which the notice of appeal is given the appellant shall unless otherwise ordered lodge in the Registry situated in the place where the appeal is to be heard five printed copies of the Justice’s notes taken at the hearing, including the notes of evidence, if any, and also a copy of the pleadings, if any, and of such other documents as may be necessary for the purposes of the appeal. The cost of copies of unnecessary documents will not be allowed.

Printing may be dispensed with.

15. The Court or a Justice may in any case upon such terms as it or he thinks fit dispense with the printing of such documents, or of any portion thereof, and may direct a greater or less number of printed copies to be lodged, and may also direct printed copies to be served upon any person not a party to the case or matter.

2. In the second paragraph of Rule 4 of Section III., the words “or special leave” shall be inserted after the word ‘‘leave” when that word is first used.

In Rule 9 of the same section the words “or special leave” shall be inserted after the word “leave.”

3. The following words shall be added to Rule 7 of Section III.:—

“And also in the Registry of the High Court at the seat of government of the State in which the decision appealed from was given.’’

4. Rules 15, 16, and 19 of Section III. shall be repealed, and the following Rules substituted for them:—

Printed transcripts to be lodged.

15. Ten days at least before the day for which the appeal is set down for hearing the appellant shall, unless otherwise ordered, lodge in the Registry situated in the place where the appeal is to be heard

six printed copies of the transcript of documents referred to in Rule 11 of this Order, and shall also serve four printed copies of such transcript upon each of the parties directly affected by the appeal or upon their solicitors. Persons suing or defending jointly shall be deemed a single party for the purpose of this rule.

Printing may be dispensed with.

16. The Court or a Justice may in any case upon such terms and conditions as it or he thinks fit dispense with the printing of such documents or of any portion thereof, and may direct a greater or less number of printed copies to be lodged or served upon any of the said parties.

Stay of proceedings.

19. When an appeal has been duly instituted, the execution of the judgment appealed from shall be stayed. The High Court or a Justice may nevertheless give leave to prosecute the judgment upon the party desiring to prosecute it giving security to the satisfaction of the Court to abide the decision of the Court on the hearing of the appeal.

5. The following rule shall stand as Rule 20 of Section I.:—

Dismissal for want of prosecution on appellant’s application.

20. An order dismissing an appeal with costs for want of prosecution may be drawn up and signed by the Registrar on the application of the appellant without other warrant than this Rule.

Provided that if notice of cross appeal or notice of intention to move to vary the decision appealed from has been given the order shall not be drawn up without the consent of the party respondent.

6. The following rule shall stand as Rule 2a of Section IV.:—

Notice to be filed in High Court.

2a. When an appeal from an Inferior Court is brought by notice of appeal the appellant shall within the term prescribed for giving the notice, file a copy thereof in the Court from which the appeal is brought, and also in the Registry of the High Court at the Seat of Government of the State in which the decision appealed from was given.

7. Rule 4 of Section IV. shall be repealed, and the following rule shall be substituted for it:—

Security.

4. When special leave is given to appeal from a decision of an inferior Court conditionally upon security being given by the appellant, such security shall be given in the Registry of the High Court at the Seat of Government of the State.

VII. The following Rules shall stand as Section V. of the Appeal Rules:—

Section V.

general provisions.

Application of Rules relating to Original Jurisdiction.

1. The Rules of Court relating to the procedure of the Court in its Original Jurisdiction shall, so far as they are respectively applicable to appeals, apply to the procedure of the Court in its Appellate Jurisdiction.

C.16265. b

Expediting appeals.

2. Notwithstanding anything contained in these Rules the Court or a Justice may expedite the hearing of any appeal of which notice has been filed in the High Court, whether the appeal has been duly instituted or not, and for that purpose may order the appeal to be set down for hearing on any day appointed for the Court to sit to hear appeals, and may abridge the time within which security is to be given, or the length of notice to be given to the respondent to such extent and upon such terms as the justice of the case may require.

A like order may be made on granting leave or special leave to appeal.

VIII. The Schedule to the Rule of Court as of Tuesday, the 6th day of October, 1903, relating to Fees and Percentages, shall be amended as follows:—

Under the head of “Hearing” the words “On setting down an appeal from Justices, £0 10s. 0d.” shall be repealed.

The following Fees shall be added to those specified in the said Rule:—

IX. The Rule of Court as of Tuesday the 3rd day of September, 1907, shall be repealed.

X. These Rules shall come into operation on the first day of January, 1908.

J. W. O’HALLORAN,

Deputy Registrar.

By Authority: J. Kemp, Acting Government Printer, Melbourne.