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Commonwealth legislation
This Act has been repealed and is no longer in force. It is retained for historical reference.
The 1937 Rules of Court set the procedural framework for conducting cases in the Supreme Court of the Australian Capital Territory. They govern how civil, family and probate matters are commenced, tried, judged and enforced, affecting litigants, lawyers, judges and court officers. By prescribing formal procedures they aim to ensure fairness and efficiency, drawing heavily on English and New South Wales practice.
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STATUTORY RULES.
1937. No. 85.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY.
———
Rules of Court.
——
As of Monday the ninth day of August , a.d. 1937.
PURSUANT to the Seat of Government Supreme Court Act 1933-1935, and to all other powers thereunto enabling, it is ordered as follows:—
1. On and after the first day of January, 1938, the Rules of Court hereinafter set out shall come into force and apply thenceforth to all suits, causes, matters, and appeals then pending, or commenced on or after that date.
(L. S.) L. O. Lukin
F. C. P. KEANE
REGISTRAR.
Judge of the Supreme Court of the Australian Capital Territory.
* Notified in the Commonwealth Gazette on , 1937.
1404/34.—10/23.7.1937.—Price 7s.
Rules of Court.
PART 1—PRELIMINARY.
Order 1.—Preliminary.
PART 2.—CIVIL JURISDICTION.
Order 2.—Commencement of Civil Proceedings.
Order 3.—Writ of Summons.
Order 4.—Indorsements of Claim.
Order 5.—Indorsement of Address.
Order 6.—Issue of Writs of Summons.
Order 7.—Concurrent Writs and Originating Summonses.
Order 8.—I.—Disclosure by Solicitors and Plaintiffs.
II.—Change of Solicitors.
Order 9.—Renewal of Writ.
Order 10.—Service of Writ of Summons.
Order 11.—Substituted Service.
Order 12.—Service Out of the Commonwealth.
Order 13.—Appearance.
Order 14.—Default of Appearance.
Order 15.—Leave to Sign Judgment or Defend where Writ Specially Indorsed.
Order 16.—Summary Judgment for Specific Performance.
Order 17.—Summary Judgment by Defendant.
Order 18.—Application for Account.
Order 19.—Parties.
Order 20.—Third Party Procedure.
Order 21.—Change of Parties by Death, &c.
Order 22.—Joinder of Causes of Action.
Order 23.—Pleading Generally.
Order 24.—Statement of Claim.
Order 25.—Defence and Counter-claim.
Order 26.—Payment into and out of Court and Tender.
Order 27.—Reply.
Order 28.—Matters Arising Pending the Action.
Order 29.—Proceedings in Lieu of Demurrer.
Order 30.—Discontinuance.
Order 31.—Default of Pleading.
Order 32.—Amendment.
Order 33.—Summons for Directions.
Order 34.—Discovery and Inspection.
Order 35.—Admissions.
Order 36.—Issues, Inquiries and Accounts.
Order 37.—I.—Special Case.
II.—Issues of Fact without Pleading.
Order 38.—Trial.
Order 39.—Evidence.
Order 40.—I.—Affidavits and Depositions.
II.—Affidavits and Evidence in Chambers.
III.—Trial on Affidavit.
Order 41.—Motion for Judgment.
Order 42.—Entry of Judgment.
Order 43.—Execution.
Order 44.—Writs of Fieri Facias and Sequestration.
Order 45.—Attachment.
Order 46.—Attachment of Debts.
Order 47.—Charging Orders and Stop Orders.
Order 48.—Writ of Possession.
Order 49.—Writ of Delivery.
Order 50.—Actions by and against Firms and Persons Carrying on Business in Names other than Their Own.
Order 51.—Consolidation.
Order 52.—I.—Interlocutory Orders as to Mandamus, Injunctions, or Interim Preservation of Property, &c.
II.—Receivers.
III.—Liquidators, Guardians, and Committees.
Order 53.—Sales by the Court.
Order 54.—Motions and other Applications.
Order 55.—Certiorari: Mandamus: Prohibition: Quo Warranto: Habeas Corpus.
Order 56.—Applications and Proceedings at Chambers.
Order 57.—Declaration on Originating Summons.
Order 58.—I.—Administration and Trusts.
II.—Assistance of Experts.
III.—Proceedings Relating to Infants, &c.
IV.—Documents to be Left at Chambers.
V.—Summonses to Proceed.
VI.—Attendances.
VII.—Claims of Creditors and other Claimants.
VIII.—Claims of Creditors.
IX.—Claims of Persons other than Creditors.
X.—Interest.
XI.—Certificates of the Registrar.
XII.—Further Consideration.
XIII.—Registering and Drawing up of Orders in Chambers.
Order 59.—Interpleader.
Order 60.—Appeals from the Court of Petty Sessions.
Order 61.—Officers.
Order 62.—Seals, Filing, Searches, &c.
Order 63.—Sittings and Vacations.
Order 64.—Time.
Order 65.—I.—Costs.
II.—Special Allowances and General Regulations.
Order 66.—Documents.
Order 67.—Service of Orders, &c.
Order 68.—Sheriff’s Rules.
Order 69.—Effect of Non-compliance.
Order 70.—Fees.
PART 3.—MATRIMONIAL CAUSES.
Order 71.—I.—Preliminary.
II.—Petitions.
III.—Co-Respondents
IV.—Citation and Service of Petition.
V.—Entering Appearance.
VI.—Infants.
VII.—Answer.
VIII.—Further Pleadings.
IX.—General Rules as to Pleadings.
X.—Demurrers.
XI.—Issues and Trial.
XII.—Evidence on Affidavit.
XIII.—Interveners.
XIV.—Showing Cause against a Decree.
XV.—Intervention, &c., by the Crown Solicitor.
XVI.—Decree Nisi.
XVII.—Decree Absolute.
XVIII.—Dismissal of Petition.
XIX.—Reversal of Decree for Judicial Separation.
XX.—Alimony Pendente Lite.
XXI.—Permanent Alimony, Maintenance and Settlements.
XXII.—Custody, Maintenance and Education of Children.
XXIII.—Transactions with Intent to Defeat Petitions.
XXIV.—Costs.
XXV.—Execution.
XXVI.—Interlocutory Proceedings.
XXVII.—Taking out Decrees, &c.
XXVIII.—Miscellaneous.
PART 4.—ADMINISTRATION AND PROBATE JURISDICTION.
Order 72.—I.—Preliminary.
II.—Application of Representation.
II.—Administration Durante Minore Aetate.
IV.—Small Estates.
V.—Administration Bonds.
VI.—Delay in Application.
VII.—Citations.
VIII.—Sale and Management of Real Estate.
IX.—Inventory and Accounts.
X.—Caveats.
XI.—Revocation of Representation.
XII.—Administration by Curator.
PART 1.—PRELIMINARY.
ORDER 1.
Preliminary.
Citation.
1. These Rules may be cited as the Rules of the Supreme Court of the Australian Capital Territory.
Repeal.
Parts.
Part 1.—Preliminary.
Part 2.—Civil Jurisdiction.
Part 3.—Matrimonial Causes Jurisdiction.
Part 4.—Administration and Probate Jurisdiction.
Definitions.
4.—(1.) In these Rules, unless the contrary intention appears—
“action” means a cause commenced by a writ of summons;
“administration and probate jurisdiction” means jurisdiction Under the Administration and Probate Ordinance 1929-1937;
“Cause Book” means the Cause Book referred to in Order 6, rule 5;
“Crown Solicitor” means the Crown Solicitor of the Commonwealth;
“matrimonial causes jurisdiction” means jurisdiction under the Matrimonial Causes Ordinance 1932-1933;
“originating summons” means a summons by which a matter is commenced otherwise than by writ, notice of motion, special case, or petition;
“prescribed” means prescribed by these Rules;
“probate action” means an action or other matter relating to the grant or recall of probate or of letters of administration, other than common form business;
“Registrar’s office”* or “the office of the Registrar” means the offices of the Court;
“sealed” means sealed with the Seal referred to in section 47 of the Act, or such other seal as is prescribed by these Rules;
“taxing officer” means the person whose duty it is to tax costs in the Court;
“to file” means to file in the Registrar’s office, and “file”, “filed”, and “filing” have corresponding meanings;
“the Act”† means the Seat of Government Supreme Court Act 1933-1935;
“the Court”, or “the Supreme Court”, means the Supreme Court of the Australian Capital Territory;
“the Court of Petty Sessions” means the Court of Petty Sessions established under section 18 of the Court of Petty Sessions Ordinance 1930-1937;
“the Registrar” means the Registrar appointed in pursuance of section 34 of the Act, and includes any Acting Registrar and any person who, in relation to any act or duty, is directed or appointed by the Judge to perform that act or duty;
* See Order 72, rule 1. † See Order 71, rule 1.
“the Sheriff” means the Sheriff of the Territory appointed in pursuance of section 34 of the Act;
“writ of execution” includes writs of fieri facias, capias, sequestration and attachments, and all subsequent writs that issue for giving effect thereto, and “issuing execution against any party” means the issuing of any such process against his person or property as is applicable to the case.
Interpretation.
(2.) In these Rules, unless the contrary intention appears—
(a) any reference to an Order or to a rule shall be read as a reference to an Order or rule, as the case may be, contained in these Rules; and
(b) any reference to a Schedule shall be read as a reference to a Schedule to these Rules.
Application of Rules.
5.—(1.) Part 2 of these Rules shall apply to all proceedings in the Court in any of its jurisdictions, unless, and except in so far as, other provision is made by law or by these Rules.
(2.) Part 2 of these Rules shall not apply to—
(a) proceedings on the Crown side of the Court or criminal proceedings; or
(b) proceedings in the revenue jurisdiction of the Court.
(3.) Orders 32, 37, 40, 54, 65, 66, 67 and 70 shall, so far as they are applicable, apply to all civil proceedings on the Crown side of the Court, including Mandamus, Prohibition and Quo Warranto.
(4.) Nothing in these Rules shall, unless the contrary intention appears, affect the practice or procedure in any criminal proceedings.
PART 2.—CIVIL JURISDICTION.
ORDER 2.
Commencement of Civil Proceedings.
Mode of commencement.
H.C.O. 1 r. 1.
1.—(1.) Subject to these Rules, causes, suits and matters in the Court may be commenced by writ of summons, motion, originating summons, or order to show cause.
(2.) Causes and matters which are by any law required or authorized to be commenced by motion, whether on notice or ex parte, or by originating summons, or order to show cause, or in any other specified manner, shall or may, respectively, be so commenced.
(3.) Where by any law, or by these Rules, any person is authorized to make any application to the Court or the Judge with respect to any matter which is not already the subject-matter of a pending cause or matter, and no other mode of making the application is prescribed by that law, or by these Rules, the application shall be made by motion or by originating summons.
ORDER 3.
Writ of Summons.
Actions to be commenced by writ.
E.O. 2 r. 1.
1.—(1.) Except as provided in the last preceding Order, every cause shall be commenced by writ of summons, which shall be endorsed with a statement of the nature of the claim made, or of the relief or remedy required in the action.
(2.) It shall not be necessary to obtain the leave of the Court or Judge to issue any writ of summons for service within the Commonwealth.
(3.) A writ of summons for service out of the Commonwealth, or of which notice is to be given out of the Commonwealth, shall not, be issued without leave of the Court or Judge.
Costs of prolixity.
E.O. 2 r. 2.
Form of writ.
E.O. 2. r. 3.
Writs for service out of Territory.
Form and notice.
E.O. 2 r. 5.
Date and tests.
E.O. 2 r. 8.
Time for appearance to be limited by writ.
(a) in the case of a writ to be served within the Territory— eight days;
(b) in the case of a writ to be served within the State of New South Wales or the State of Victoria—fourteen days;
(c) in the case of a writ to be served within the State of Queensland, the State of South Australia or the State of Tasmania—twenty-one days;
(d) in the case of a writ to be served elsewhere within the Commonwealth—twenty-eight days; and
(e) in the case of a writ to be served out of the Commonwealth— such time as is limited by the order giving leave to effect such service, or, in the case of a writ to which Order 12, rule 3, applies, by the order giving leave to issue the writ.
ORDER 4.
Indorsement of Claim.
When to be made.
E.O. 3 r. 1.
Contents of indorsement.
E.O. 2 r. 2.
Representative character.
Vic. O. 3 r. 4.
Probate actions.
E.O. 3 r. 5.
Special indorsement.
E.O. 3 r. 6.
(a) where the plaintiff seeks to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising—
(i) upon a contract, expressed or implied (as, for instance, on a bill of exchange, promissory note, or cheque, or other simple contract debt);
(ii) on a bond or contract under seal for payment of a liquidated amount of money; or
(iii) under any law where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or
(iv) on a guarantee, whether under seal or not, where the claim against the principal is in respect of a debt or liquidated demand; or
(v) on a trust;
(b) where a landlord seeks to recover possession of land, with or without a claim for rent or mesne profits, against the tenant whose term has expired or has been duly determined by notice to quit or has become liable to forfeiture for non-payment of rent, or against persons claiming under such tenant; or
(c) where the plaintiff seeks to recover possession of a specific chattel, with or without a claim for the hire thereof or for damages for its detention,
and in all other actions for damages (except actions for libel, slander, malicious prosecution, false imprisonment, seduction, or breach of promise of marriage, and actions in which fraud is alleged by the plaintiff) the writ of summons may, at the option of the plaintiff, be specially indorsed with or accompanied by a statement of his claim, or of the remedy or relief to which he claims to be entitled.
Indorsement of notice as to stay of proceedings.
E.O. 3 r. 7.
6.—(1.) Wherever the plaintiff’s claim is for a debt or liquidated demand only, 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 four days after service, or in case of a writ
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