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Commonwealth legislation
This Act has been repealed and is no longer in force. It is retained for historical reference.
This instrument amends the High Court Rules of Court (1923). Mechanically it: changes procedural time limits, adds a rule allowing parties to change solicitors by filing notice, requires filing certain copies (e.g. interrogatories, patent petitions), replaces the costs regime with a new Order LIV (detailing taxation, allowances and taxing‑officer powers), and appends a comprehensive Schedule of fees and costs. It affects litigants, solicitors, taxing officers, registrars and parties funding estates by changing who pays, when security or filings are required, and how costs are assessed and recovered.
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Direct links to the current provisions in High Court of Australia - Rules of Court.
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STATUTORY RULES.
HIGH COURT OF AUSTRALIA.
Rules of Court.
As of Friday, the 25th day of May, a.d. 1923.
It is ordered as follows:—
I.—That Part I. of the Rules of this Court be amended in the manner hereinafter appearing, that is to say:—
Change of solicitor.
“5. A party suing or defending by a solicitor may change his solicitor in any cause or matter, without an order for that purpose, upon notice of such change being filed in the Registry, but until such notice is filed and a copy thereof served, the former solicitor shall be considered the solicitor of the party.”.
Order XIX. is amended by omitting from paragraph (b) of Rule 3 the words “six weeks” and inserting in their stead the words “four weeks”.
Order XX. is amended—
(a) by omitting from Rule 6 the words “eight days” and inserting in their stead the words “twenty-one days”; and
(b) by omitting from Rule 7 the words “sixteen days” and inserting in their stead the words “twenty-one days”.
Order XXII. is amended by omitting from Rule 3 the words “four days” and inserting in their stead the words “eight days”.
Order XXIX. is amended by inserting at the end of Rule 1 the following paragraph:—
“A copy of the interrogatories delivered by any party shall be filed in Court on the day on which the same are delivered to the opposite party.”.
(a) by inserting in the heading thereto, after the word “revocation”, the words “and extension”; and
(b) by inserting in rule 1, after the word “revocation”, the words “or extension”.
C.3890.—Price 8d.
(c) by omitting rule 3 and inserting in its stead the following new rule:—
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, upon whom it is intended to serve the petition, and if it is not intended to serve the petition upon any person, a statement to that effect shall be made at the foot of the petition.”; and
(d) by inserting, after rule 8, the following new rules:—
Notice to be delivered to Commissioner.
“9. Notice of every application for the extension of time for the sealing of a patent, other than a petition, shall be delivered to the Commissioner of Patents at least seven days before the making of such application.
Copy petition to be delivered to Commissioner.
“10. A copy of every petition for extension of a patent or for the extension of time for the sealing of a patent shall be delivered to the Commissioner of Patents within seven days of the date of filing the petition.
Notice of hearing to be given to Commissioner.
“11. Notice in writing of the day and place appointed for hearing the petition shall be given to the Commissioner of Patents at least seven days before the day appointed.”.
“ORDER LIV.
Costs.
Costs, with certain exceptions, to be in the discretion of the Court.
“1. Subject to the provisions of any Act and these Rules, the costs of and incident to any proceedings in the Court and in Chambers, including the administration of estates and trusts, shall be in the discretion of the Court or Justice: Provided that nothing herein contained shall deprive an executor, administrator, trustee, or mortgagee who has not unreasonably instituted or carried on or resisted any proceedings of any right to costs out of a particular estate or fund to which he would be entitled according to the rules hitherto acted upon in Courts of Equity: Provided also that where any action cause matter or issue is tried with a jury the costs shall follow the event unless for good cause shown the Justice by whom such action cause matter or issue is tried or the Full Court shall otherwise order.
Costs of issues to follow event.
“2. When issues in fact and law are raised, upon a claim or counter claim, the costs of the several issues respectively, both in law and fact, shall, unless otherwise ordered, follow the event, and an order giving a party costs except so far as they have been occasioned or incurred by or relate to some particular issue or part of his proceedings shall be read and construed as excluding only the amount by which the costs have been increased by such issue or proceedings; but the Court or a Justice, if the whole costs of the action are not intended to be given to the party, may, wherever practicable, by the order, direct taxation of the whole costs and payment of such proportion thereof as the Court or a Justice determines.
Costs of cause removed from another Court.
“3. When a cause is removed from any Court into the High Court, the costs in the Court below shall unless otherwise ordered be costs in the cause.
Costs of solicitor guardian ad litem.
“4. (1) When a solicitor acts as the guardian ad litem of an infant, or is appointed to be guardian ad litem of a person of unsound mind, in any cause or matter, the Court or a Justice may direct that the costs to be incurred in the performance of the duties of such office shall be borne and paid either by the parties to the cause or matter, or some of them or out of any fund in Court in which the infant or person of unsound mind is interested, and may give directions for the repayment or allowance of such costs as the justice and circumstances of the case requires.
(2) When a solicitor acts as guardian ad litem of an infant without an order of the Court or a Justice appointing him as such guardian the costs incurred in the performance of the duties of such office shall be in the discretion of the Court or a Justice.
Costs out of estate.
“5. The costs occasioned by an unsuccessful claim or unsuccessful resistance to any claim to any property shall not be paid out of the estate unless the Court or a Justice so orders.
Distribution not to be delayed by difficulties as to some shares.
“6. When some of the persons entitled to a distributive share of a fund are ascertained, and difficulty or delay has occurred or is likely to occur in ascertaining the persons entitled to the other shares, the Court or a Justice may order or allow immediate payment of their shares to the persons ascertained without reserving any part of those shares to answer the subsequent costs of ascertaining the persons entitled to the other shares, and in any such case such orders may be made for the ascertainment and payment of the costs incurred down to and including such payment as the Court or a Justice thinks just.
Set-off for damages or costs.
“7. A set off for damages or costs between parties may be allowed notwithstanding the solicitor’s lien for costs in the particular cause or matter in which the set off is sought.
Costs improperly or fruitlessly incurred.
“8. If in any case it shall appear to the Court or a Justice that costs have been improperly or without reasonable cause incurred, or that by reason of any undue delay in proceeding under any judgment or order or of any misconduct or default of the solicitor, any costs properly incurred have nevertheless proved fruitless to the person incurring the same, the Court or Justice may call on the solicitor of the person by whom such costs have been so incurred to show cause why such costs should not be disallowed as between the solicitor and his client, and also (if the circumstances of the case shall require) why the solicitor should not repay to his client any costs which the client may have been ordered to pay to any other person, and thereupon may make such order as the justice of the case may require. The Court or Justice may if they or he think fit refer the matter to a taxing officer for inquiry and report and direct the solicitor in the first place to show cause before such taxing officer. Such notice (if any) of the proceedings or order shall be given to the client in such manner as the Court or a Justice may direct.
Personal liability of solicitors to pay costs.
“9. When upon the trial of any cause or matter it appears that the same cannot conveniently proceed by reason of the solicitor
for any party having neglected to attend personally, or by some proper person on his behalf, or having omitted to deliver any paper necessary for the use of the Court or a Justice, and which according to the practice ought to have been delivered, such solicitor shall personally pay to all or any of the parties such costs as the Court or a Justice thinks fit to award.
Amount of costs.
“10. (1) The fees payable to barristers and solicitors, whether entitled or admitted to practice by virtue of the Judiciary Act 1903-1920 or otherwise, in respect of business transacted by them in the Court or the offices thereof, in causes or matters pending at the date these Rules come into operation, or commenced after that date shall, as well between party and party as between solicitor and client, unless otherwise ordered, be taxed allowed and certified by the Registrar or a Deputy Registrar or some other officer duly appointed for the purpose, and shall, unless otherwise ordered, be allowed in accordance with the scale set forth in Part II. of the Schedule to the Rules of the High Court.
(2) The provisions of all Acts and Rules in force in any State in which a practitioner resides, relating to the delivery to a client of a bill of costs, or the costs of taxation as between solicitor and client, shall apply, mutatis mutandis, to such taxation.
Review of taxation.
“11. Every taxation of costs and every direction of a taxing officer shall be subject to review by a Justice.
Notice of taxing costs and copy bill.
“12. (1) In all cases where a notice to tax is necessary, notice of taxing costs, together with a copy of the bill of costs and affidavit of increase (if any), shall be given by the solicitor of the party whose costs are to be taxed to the other party or his solicitor.
(2) Notice under this rule shall be a two days’ notice unless the taxing officer otherwise directs.
Where such notice unnecessary.
“13. Notice of taxing costs shall not be necessary in any case where the defendant has not appeared.
Taxing officers to assist each other.
“14. The taxing officers shall be respectively assistant to each other, and in the discharge of their duties, and for the better despatch of the business of their respective offices, any taxing officer may tax, or assist in the taxation of, a bill of costs which has been referred to any other taxing officer for taxation, and for ascertaining what is due in respect of those costs, and in such case shall certify accordingly.
Notice of adjournment of taxation.
“15. The taxation shall, if possible, be continued without interruption till completed, but if adjourned for any reason, notice of the adjournment shall be sent by post to any person not present at the time of the adjournment, whose attendance the taxing officer desires at the next appointment.
Bill to be filed before taxation.
“16. A bill of costs shall be filed before the taxation thereof.
Powers of taxing officer where solicitor impedes or delays taxation.
“17. Any solicitor who fails to file the bill of costs as required or who in any way delays or impedes the taxation shall, if the taxing officer so directs, forfeit the fees to which he would otherwise be entitled for drawing his bill of costs and for attending the taxation, and the taxing officer may also, if he thinks fit, exercise all or any of the powers vested in him by Rules 41 and 65 of these Rules.
Allowances for pleadings, &c., in discretion of taxing officer.
Drawing pleadings.
“18. When writs of summons require special indorsement, and in special cases, pleadings, and affidavits in answer to interrogatories, and other special affidavits, the taxing officer may, in lieu
of the allowances for instructions and preparing or drawing, and attendances, make such allowance for work, labour and expenses, in or about the preparation of the documents as, in his discretion, he thinks proper.
Instructions to sue or defend, &c.
“19. For drawing any pleading or other document, the fees allowed shall include any copy made for the use of the solicitor, agent, or client, or for counsel to settle.
“20. (1) If the taxing officer on special grounds considers the fee provided for instructions to sue or defend, or instructions for briefs, inadequate, he may make such further allowance as, in his discretion, he considers reasonable.
(2) The taxing officer shall allow only the copying of such documents, or parts of documents, to accompany briefs, as he considers necessary for the instruction of counsel, or for use at the trial.
Swearing affidavits.
“21. When there are several deponents to be sworn, or it is necessary for the purpose of an affidavit being sworn to go to a distance, or to employ an agent, such reasonable allowance may be made as the taxing officer thinks fit.
Drawing affidavits and attending deponent.
“22. The allowances for instructions for and drawing an affidavit in answer to interrogatories and other special affidavits, and attending the deponent to be sworn, include all attendances on the deponent to settle and read over.
Services, &c., where same solicitor acts for both parties.
“23. Fees shall not be allowed for delivery of pleadings, services, notices, and perusals, when the same solicitor acts for both parties, unless it is necessary for the purpose of making an affidavit of service.
Separate pleadings or proceedings by the same solicitor.
“24. When the same solicitor is employed for two or more defendants, and separate pleadings are filed, or other proceedings had by or for two or more of such defendants separately, the taxing officer shall consider in the taxation of such solicitor’s bill of costs, either between party and party or between solicitor and client, whether such separate pleadings or other proceedings were necessary or proper, and if he is of opinion that any part of the costs occasioned thereby has been unnecessarily or improperly incurred, that part of the costs shall be disallowed.
Evidence.
“25. Such just and reasonable charges and expenses as appear to have been properly incurred in procuring evidence, and the attendance of witnesses, shall be allowed.
Agency correspondence.
“26. In country agency causes or matters, if it be shown to the satisfaction of the taxing officer that agency correspondence has been special and extensive, he may make such special allowance in respect thereof as in his discretion he thinks proper.
Higher remuneration may be allowed on special circumstances in attendance at Chambers.
“27. In respect of attendances at a Justice’s Chambers, where, from the length of the attendance, or from the difficulty of the case the Justice thinks the highest of the prescribed allowances an insufficient remuneration for the service performed, or where the preparation of the case or matter has required skill and labour for which no fee has been allowed or has required and received from the solicitor such extraordinary skill and labour as materially to conduce to the satisfactory and speedy disposal of the business, the Justice may allow such fee to the solicitor for his services as he thinks fit.
Non-attendance or neglect of parties on proceedings at Chambers.
“28. When by reason of the non-attendance of any party at Chambers, or by reason of the neglect of any party in not being prepared with any proper evidence, account, or necessary document, the attendance is adjourned without any useful progress being made, the Justice may order that such costs as he thinks reasonable shall be paid to the party attending by the party so absent or neglectful, and the party so absent or neglectful shall not be allowed any fee as against any other party, or any estate or fund in which any other party is interested.
Folio is to be seventy-two words.
“29. A folio
This is an opening excerpt, not the complete document.