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SUPREME COURT AMENDMENT RULES 2004 (NO 1) (NO 7 OF 2004)
EXPLANATORY STATEMENT
SUPREME COURT AMENDMENT RULES 2004 (No 1)
Issued by the Authority of the Judges of the
Supreme Court of the Australian Capital Territory
The resident Judges of the Court (of whom there are currently four, including
the Chief Justice) or any two of the resident Judges, may make Rules of Court
regulating the practice and procedure of the Court pursuant to section 36 of the
Supreme Court Act 1933.
These rules have been made as part of the
process adopted by the Court to modernise the Rules and to provide for more
efficient and cost-effective procedures.
The Rules make the following
amendments:
In keeping pace with technology and reflecting the manner
many legal practitioners already communicate with each other, provision is made
for the service of documents between solicitors by e-mail and for the inclusion
of an email address in a party’s address for service. The new rules do not
permit electronic filing of documents. Provision is made for the certification
that the original filed document has been signed or sworn or affirmed as the
case may be. This amendment will reduce the delay and expense.
New rules
have been included to give the Registrar discretion to refuse to accept
documents for filing or to issue a subpoena. If a document is not substantially
complete, does not substantially comply with a prescribed form, is not properly
signed or appears on its face to be an abuse of process or to be frivolous or
vexatious, the Registrar may reject the document or refer the matter to a judge
for direction. The Registrar’s decision may be appealed to the Master.
This will reduce the imposition on people made party to hopeless or inadequate
process.
A new order 26 (Payment into and out of court and tender) has
been introduced to replace the existing Order following a review of the
procedure and to comply with the Civil Law (wrongs) Act 2002. The new
Order provides a more workable regime for payment into court by bond or other
security and modernises the provisions for acceptance of the amount paid into
court, for recovery of costs and for approval of a compromise where the
plaintiff is under legal disability. It also prescribes new forms which will
assist the profession.
Provision is made to clarify that a court order
must state the date it was made and that it will then take effect unless the
court otherwise orders.
A new Order 42B (Notices to Sheriff) has been
introduced to relocate rules which were previously included in Order 54 but
which are inappropriate for the revised order.
A new order 54 (Motions)
has been substituted to modernise the rules relating to motions for both
interlocutory and originating applications and to align the rules with current
practice where it was considered to be satisfactory. The order also authorises
the use of common practices such as the use of a schedule of correspondence or
other material with a notice of motion. The order specifies modern and
simplified procedures for service, making ex parte applications, dismissal,
adjournment and taking out orders. A form is, for the first time, prescribed
and this will also assist the profession and litigants in person.
A new
rule rectifies an anomaly which was identified by the profession has been
rectified in the costs penalty imposed by the rules for actions commenced in the
Supreme Court which should have been commenced in the Magistrates Court. New
Order 65 Rule 7A provides for the costs recovered by a successful plaintiff in
cases where the amount of damages awarded less then $40,000 will be on the
Magistrates Court scale. As disbursements are payable in full under the
Magistrates Court legislation, these are no longer affected save that any
additional fees or amount of fees payable because the action is heard in the
Supreme Court are not recoverable. This amendment will protect defendants from
unfairly paying higher costs where an action is determined in an inappropriate
court.
Amendments to Order 72 modernise the provisions for administration
bonds in the probate jurisdiction consequent upon amendments to the
Administration and Probate Act 1929. A new, simplified bond is
prescribed and the procedure for entering into a bond and fixing the amount or
to dispense with a bond has been brought up-to-date and simplified. The new
rules also make simpler provisions for raising and considering objections to the
passing of accounts, to the filing of a caveat against administration and for
applications for revocation of grants. These changes will assist litigants
generally.
A number of forms have been prescribed, simplified or
modernised to improve the efficiency of court procedures and to reduce
costs.
A number of other small amendments have been made to widen the
application of service provisions, to modernise the service of pleadings, to
simplify equitable procedures and to extend service methods of appeal documents.