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SUPREME COURT AMENDMENT RULES 2004 (NO 5) (NO 54 OF 2004)
SUPREME COURT AMENDMENT RULES 2004 (No 5)
Subordinate Law SL2004-54
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 cost efficient and cost-effective procedures. The Rules cover the
following areas.
(1) Subpoenas
Division 39.6 of the Rules
has been replaced with Order 1 AA which gives effect to the harmonised rules
developed by the Council of Chief Justices Harmonised Rules
Committee.
The new subpoena rules provide for a single form subpoena,
which is Form 1.1A in the schedule of forms. The Rules apply to both civil
and criminal proceedings. The form of subpoena allows the issuing party to
indicate whether the subpoena is to require the addressee to attend to give
evidence, produce documents or to do both of these. Depending on the option
chosen, certain parts of the subpoena need not be completed.
The Rules
also make provision for:
• setting aside a subpoena – Rule
4
• service of a subpoena – Rule 5
• compliance with a
subpoena – Rule 6
• production and inspection of documents
produced on subpoena – Rules 7 & 9
• return and disposal
of documents and things produced – Rules 8 & 10
• costs of
complying with a subpoena – Rule 11
• failure to comply with a
subpoena – Rule 12
• production of documents in the custody of
another court – Rule 13
The Rules are made applicable to subpoenas
under the Commercial Arbitration Act – Rule 15.
The retention of
Rules relating to bankers books – Rule 14, and service of a notice in lieu
of a subpoena – Rule 18 is a departure from the model rules but reflects
the current practice and the practice in some other jurisdiction.
The
Registrar is given power under Order 61 Rules 3(a) and 3AA to make a range of
decisions in relation to subpoenas.
The Rules also make alternative
provisions for service of subpoenas on parties (Order 10 rule 17) and retain the
local arrangements for notices instead of subpoenas to be served on medical
practitioners (Order 10 rules 18 and 19).
There are also consequential
amendments to give effect to these
rules.
(2) Discovery
Order 34 contains Rules relating to
discovery. Rule 3 (2A) has been inserted with associated formal amendments to
clarify the exemption from disclosure of privileged documents as a result of
experience with the Rules.
(3) Access to Court documents
A
new Rule 11(5) has been inserted in Order 66 to make it clear that
“documents” in Order 66 Rule 11 extends to electronic documents and
other non-paper documents.
(4) Interstate Confiscation
Orders
Provision has been made in Orders 81 and 82 for registration
of foreign orders under the Mutual Assistance in Criminal Matters Act 1987 (Cth)
and the International War Crimes Tribunals Act 1995 (Cth). Both Acts provide
for interstate orders to be registered in the court if the property (or part of
the property) is situated in the ACT. Registration is required to be in
accordance with the procedure of the relevant court.
(5) Appeals
Order 84 contains rules relating to appeals to the Supreme Court
other than to the Court of Appeal. Rules 22 to 25 have been inserted in Order
84 to provide for the filing of summaries of arguments by both parties and lists
of authorities and for the abandonment of ground of appeal. The new rules are
consistent with similar provisions in the Court of Appeal jurisdiction contained
in Order 86.
(6) Court of Appeal
Order 86 Subdivision
86.5.2 provides an expeditious means of dealing with applications by convicted
or sentenced persons to appeal out of time. The application is made to the
Registrar who provides a copy to the DPP. The new rule prescribes a form in
which the DPP instead of merely entering an appearance responds to the
application and indicates whether any affidavit in support is to be filed.
(7) Forms
The forms in schedule 1 have been amended so
that each form is self-contained. This will enable forms to be downloaded and
engrossed. The text of form headings, introductory words and signature blocks
of affidavits have been standardised. Some minor changes to language and style
to achieve consistency have been made.
(8) A new schedule 3 has
been inserted pursuant to Order 65 Rule 7 which has not been adjusted since
February 2002. The schedule increases the present scale components by 12.85%
with each item rounded to the next ten cents.
The figure is based on a
combination of Consumer Price Index (CPI) and Wage Cost Index (WCI) data from
the Australian Bureau of Statistics and follows a similar consideration of costs
by the Federal Costs Advisory Committee, whose reasoning was
adopted.
(9) Minor amendments have been made to update references
to repealed Acts, to make a number of provisions consistent with changes in the
Rules and to make a sensible separation of the provisions for arbitration and
for court-appointed referees.