Express law No. 13

20 December 2004

High Court Rules 2004

The High Court has adopted new rules
governing the procedure of cases heard in the High Court.
The High Court Rules
2004 will come into effect on 1 January 2005. This Express
Law aims to highlight the main changes.

Outline of the
High Court Rules 2004

The High Court Rules 2004 (SR No 304
of 2004) were notified in a Special Gazette on 14 October
2004 ('the Rules').
The Rules comprise five chapters, which are organised according
to subject matter. Chapter 1 contains general rules applicable
to all proceedings in the Court. Chapter 2 deals with proceedings
in the original jurisdiction of the Court. Chapter 3 deals
with election petitions. Chapter 4 deals with proceedings
in the appellate jurisdiction of the Court. Chapter 5 deals
with costs. All forms are found in Schedule 1 to the Rules.

It
is intended that the rule number will identify the chapter
and part to which the rule belongs. For example, rule 25.03
is found in Chapter 2, Part 25. The end of each chapter
is clearly denoted and includes a note advising with which
Part the next Chapter commences.

Commencement

The Rules are effective on 1 January 2005,
at which time the High Court Rules 1952 will be repealed.
For proceedings
commenced before 1 January 2005, the Rules will govern
all steps taken on or after 1 January 2005, unless the
Court orders otherwise.

Changes to note

Most of the changes to the Rules may merely
be noted. Some changes of note include the abolition of
the distinction
between a Justice sitting in Court and sitting in Chambers
(see rule 6.04.3) and the rule that amendment will now
always require the leave of the Court or a Justice (rule
3.01). Under rule 5.03(b), parties raising a constitutional
matter within the meaning of section 78B of the Judiciary
Act 1903 are now required to provide relevant documents
to interveners. Practitioners should also be aware of rule
1.08, which prescribes the requirements for all documents
filed with the Court, and rule 1.05, which deals with the
procedure after remittal. It should also be noted that
the Rules do not permit electronic filing of documents.

Chapter 3 contains the rules regarding election petitions.
They are largely unchanged from the rules provided by the
High Court Rules 1952.

Practice Directions No 3 of 1996,
No 1 of 2000 and No 2 of 2001, which deal with written
submissions and lists
of authorities, will continue to apply.

Part 25 – Mandamus,
prohibition, certiorari, habeas corpus and quo warranto

Part
25 governs applications for writs of mandamus, prohibition,
certiorari, habeas corpus and quo warranto. In accordance
with the principles of plain English, the Rules no longer
refer to an 'order nisi'. Instead, the term 'order
to show cause' is used.

All applications for an order
to show cause relating to these writs must now be made
on notice (rule 25.03.1).
Therefore, all hearings will be held inter partes and the
parties will be referred to as plaintiff and defendant
(rule 25.02.1).

If an order to show cause is granted, the
Rules provide that the plaintiff is confined to the relief
sought and
grounds stated in that order (rule 25.04). Therefore, applicants
may not raise new grounds during the application for final
relief.

The time limits for applications for writs of mandamus
and certiorari under the High Court Rules 1952 are retained.
That is, applications for a writ of mandamus must be filed
within 2 months of the refusal to determine a matter and
applications for a writ of certiorari must be filed within
6 months of the judgment or decision (rules 25.06.1, 25.07.2).

Outline
of submissions

When an application for a writ under Part
25 is served, a summons and an outline of submissions must
be filed and
served with it. This outline must state why the matter
should not be remitted to another court, or, if the plaintiff
submits that it should be remitted, identifying the court
to which it should be remitted. The outline should also
indicate what the future conduct of the case should be.
That is, the plaintiff is required to make submissions
on what, if any, further steps should be taken in the Court
and the times by which, and the manner in which, such further
steps are to be taken (see rule 25.03.2). The summons,
returnable before a Justice, is to specify the orders sought
by the plaintiff on the future conduct of the case (to
which the outline of submissions will relate).

In the case
of applications for a writ under Part 25, these documents
must be served with the application, which may
not be served more than 90 days after the date on which
it was issued unless an order of the Court or a Justice
allows further time (rules 25.01(g), 25.03.1, 25.03.2).

When
a plaintiff serves a writ of summons under Part 27, a similar
outline of submissions must be filed and served
together with a summons for directions returnable before
a Justice concerning the future conduct of the case (see
rule 27.06). The time for filing the summons for directions
is no later than 14 days after the time prescribed for
an appearance (see rules 27.01(d), 27.06). The writ may
not be served more than 12 months after the date on which
it was issued unless an order of the Court or a Justice
allows further time (see rule 27.01(f)).

Part 41 – Applications
for leave or special leave to appeal

Among the significant
changes are the changes to the procedure governing applications
for leave or special leave to appeal.

Procedures for unrepresented
applicants

To relieve respondents of the time and expense
involved in responding to unmeritorious applications, applications
by unrepresented applicants will now first be considered
on the papers filed by the applicant. Unrepresented applicants
will be required to present their argument to the Court
by filing a draft notice of appeal and written case. These
documents are filed in place of the applicant's summary
of argument under rule 41.05 and are not to be served on
a respondent unless directed by the Court or a Justice
(rule 41.10.1). If the written case is not filed within
28 days of filing the application, the application shall
be deemed to be abandoned unless the Court or a Justice
has otherwise ordered (rule 41.10.4).

Once a written case
has been filed by an unrepresented applicant, two Justices
may determine to dismiss the application
on the papers (rule 41.10.5). If the Justices do not make
a direction to dismiss the application, then a direction
will be given to the applicant to serve a copy of the written
case on the respondent. This written case will operate
as the applicant's summary of argument. The procedure
of Part 41 in relation to the respondent's summary
of argument, reply, application book, etc, will be followed
from this point, as though the applicant was represented
(rule 41.10.6).

It should be noted that the rules regarding
the application for leave or special leave to appeal (rules
41.01 – 41.03)
and notices of appearance (rule 41.04) do not distinguish
between represented and unrepresented applicants. Therefore,
unrepresented applicants will still be required to file
an application within 28 days of judgment, and serve the
application, with the documents prescribed in rule 41.01.2,
within 7 days of filing the application. Within this time,
a copy of the application must also be lodged with the
Prothonotary, Registrar or other proper officer of the
court below (rule 41.03.2). Notices of appearance (Form
7) must be filed and served within 14 days of service of
the application (rule 41.04).

Determining applications
on the papers

Rule 41.11.1 provides that any application
for leave or special leave to appeal may be determined
by any two Justices
on the papers. This applies to represented and unrepresented
parties. The rule is stated in permissive, not mandatory,
terms. Hayne J has indicated that the Court has not yet
decided when, or the circumstances in which, this procedure
will be used.

Deemed abandonment of applications

Applications can be
deemed to have been abandoned (unless the Court or a Justice
has otherwise ordered) in the following
circumstances:

  • failure to serve on
    the respondent a copy of the application and documents
    filed under rule 41.01.2, or failure to lodge
    with the court below a copy of the application, within
    3 months of filing the application; or
  • failure to file and serve a summary of argument and
    draft notice of appeal under rule 41.05.1 or failure
    to file
    and supply the required copies of the application book
    under rule 41.09.11 within 6 months of filing the application
    (see rule 41.13.1).

Costs consequences of deemed abandonment

If an application
is deemed to be abandoned under rule 41.13.1, the Registrar
shall provide a certificate of deemed
abandonment, if requested to do so by the respondent. Once
this certificate is issued, rules 41.12.2, 41.12.3 and
41.12.4 apply. Therefore, unless the Court or a Justice
has otherwise ordered the applicant shall pay the respondent's
costs in respect of the application and such costs shall
be taxed, unless agreed (rule 41.12.2).

Rule 41.12.2 is
not applied to applications by unrepresented applicants
which are deemed to be abandoned under rule
41.10.4. Presumably this is because the respondent is
unlikely to have incurred costs beyond those associated
with filing
a notice of appearance.

Costs

Parties may now request that a Taxing Officer make
an estimate of the bill of costs, if it were taxed. In
response to
such a request, the Taxing Officer will make such
an estimate and notify each party in writing of the estimate.
A party
has 14 days in which to file and serve a notice of
objection to the estimate under rule 57.02. If no
such
notice is
filed and served, the bill will not be taxed and
a Certificate of Taxation shall be issued for the amount
of the estimate.
If a notice of objection is filed, the filing party
is first required to pay $1,250 into Court as security
for
the costs of the taxation (see generally rule 57.01).

Costs
of, and incidental to, the taxation shall be ordered
against the party filing a notice of objection
if that
party fails to reduce the estimate by 1/6 or more
(rule 58.02.1). If on taxation the amount of the
bill of
costs is reduced by 1/6 or more, the party entitled
to the
costs will not be allowed costs for drawing or
copying the bill
or for attending the taxation (rule 58.03(a)).

Text
of the new rules is available at:
http://www.austlii.edu.au/au/legis/cth/consol_reg/hcr2004170/

For
further information please contact:

Libby Haigh
Senior Executive Lawyer
T 03 9242 1499 F 03 9242 1265
M 0419 392 184
libby.haigh@ags.gov.au

Important: The material in Express law is
provided as an early, interim view for general information
only and further analysis on the matter may be prepared
by AGS. The material should not be relied upon for
the purpose of a particular matter. Please contact
AGS before any action or decision is taken on the basis
of any of the material in this message.