This note is not part of the rules, but is intended to indicate their general effect.
These rules amend the High Court Rules. Rules 10 and 11 come into force on 1 December 1999.
These 2 rules relate to the service of documents in proceedings involving a party to a convention relating to international carriage by air. The rest of the rules, which relate to costs and other matters, come into force on 1 January 2000.
Part 1 New rules relating to costs
Rule 2 substitutes new rules 46 to 48G for the existing rules 46, 46A, 47, and 48. In essence, the existing rules provide that the Court has an absolute and overriding discretion as to costs and may fix costs at the level specified in the scale contained in Schedule 2 or at a level greater or less than the scale (rules 46 and 48). Costs follow the event, that is, they depend on the outcome of the proceeding (rule 47). Rule 46A relates to Calderbank letters and provides that offers of settlement may be made without prejudice except as to costs.
The new rules continue the principle that in matters of costs the Court has an overriding discretion, set out principles guiding costs determinations, provide for costs to be determined by reference to both an appropriate daily recovery rate and a reasonable time in relation to the proceeding or step in the proceeding, and set out the circumstances when increases in costs can be ordered or when the Court may refuse costs or reduce costs that might otherwise be payable.
New rule 46 provides that all matters relating to costs in a proceeding or a step in a proceeding are in the discretion of the Court. The rule also makes it clear that the succeeding costs rules are subject to this overriding discretion.
New rule 47 sets out principles applying to the determination of costs. These are that—
•The successful party is entitled to have costs paid by the unsuccessful party:
•Costs should reflect the complexity and significance of the proceedings:
•Costs are assessed on the basis of applying the appropriate daily recovery rate to the time considered reasonable for the proceeding or step in the proceeding:
•An appropriate daily recovery rate should normally be two-thirds of the daily rate considered reasonable for the proceeding or step in the proceeding:
•The appropriate daily recovery rate and time do not depend on the skill and experience of the actual solicitor or counsel involved or on the time actually spent by the solicitor or counsel involved:
•Costs should not exceed the actual costs incurred by the party seeking costs:
•The determination of costs should be predictable and expeditious.
New rule 48 requires proceedings to be classified according to 3 categories. The categories are:
|• Category 1 proceedings...................................................................||Proceedings of a straight-forward nature able to be conducted by counsel considered junior in the High Court:|
|• Category 2 proceedings...................................................................||Proceedings of average complexity requiring counsel of skill and experience considered average in the High Court:|
|• Category 3 proceedings...................................................................||Proceedings that because of their complexity or significance require counsel to have special skill and experience in the High Court.|
The rule also allows the Court to determine, in advance, an applicable category in relation to a proceeding and, if it does, the category applies to all subsequent determinations of costs in the proceeding unless there are special reasons to the contrary.
New rule 48A provides that the rates specified in the new Schedule 2 are the appropriate daily recovery rates for, and must be applied in relation to, the categories of proceedings referred to in new rule 48. The rates are fixed on the basis of being two-thirds of actual daily rates regarded as reasonable in line with the principle stated in new rule 47(d).
New rule 48B relates to the determination of a reasonable time for a particular step in a proceeding. In essence, what is a reasonable time is to be determined by reference to the new Schedule 3 or, if it does not apply, by analogy with it or, if no analogy is possible, by an assessment of the time required for the particular step.
The new Schedule 3 specifies 3 categories or bands for particular steps or stages in a proceeding. The bands apply depending on whether the time considered reasonable is normal for the particular step or comparatively small or large.
New rule 48C provides for increased costs or actual (indemnity) costs and sets out factors to be taken into account in determining when an order for increased or indemnity costs is appropriate.
New rule 48D provides that the Court may refuse to award costs or reduce the costs that might otherwise be payable and sets out the factors to be taken into account in determining whether to refuse or reduce costs.
New rule 48E provides that, in the absence of particular reasons, costs of an opposed interlocutory application must be fixed when the application is determined. Costs are determined as a discrete exercise in accordance with the new rules and become payable immediately they are fixed. The new rule does not apply to summary judgment applications.
New rule 48F provides that costs may be fixed by a Judge or Master other than the Judge or Master who heard the matter to which the costs determination relates if the Judge or Master who heard the matter is not available to make the costs determination.
New rule 48G restates existing rule 46A relating to Calderbank letters.
Rule 3 replaces existing rule 50. Rule 50 currently provides that each of several unsuccessful defendants is liable to the plaintiff for the plaintiff's costs even though they defend the proceeding separately. The new rule provides that if more than 1 party is ordered to pay costs, each party is jointly and severally liable unless the Court orders otherwise.
Rule 4 substitutes new Schedules 2 and 3 for the existing Schedule 2. The new Schedule 2 specifies appropriate daily recovery rates for the 3 categories of proceeding referred to in new rule 48. The new Schedule 3 specifies both the matters for which costs may be ordered and time allocations for those matters in the separate categories or bands referred to.
Rule 5 is a transitional provision.
Costs in proceedings commenced after the new rules come into force must be determined in accordance with the High Court Rules as amended by these rules.
Costs in proceedings commenced before the new rules come into force must be determined,—
Schedule 2 of the rules specifies when a step in a proceeding must be treated as having been taken for the purposes of making a costs determination in proceedings commenced before the new rules come into effect.
Rule 5 also allows the Court to apply the new costs rules to the determination of costs in relation to a step in proceedings taken before the new rules take effect or apply the previous costs rules to the determination of costs in relation to a step in proceedings taken after the new rules take effect if the Court considers that applying the transitional rule would otherwise lead to an unjust result.
Part 2 Amendments to other rules
Part 2 contains amendments relating to 5 principal matters.
•In relation to reviews of orders or decisions given by Masters in Chambers, the amendments specify when those reviews are heard as appeals by way of rehearing, and when they are heard de novo:
•In relation to the summary judgment procedure, the amendments extend the summary judgment procedure to admiralty proceedings:
•In relation to the rules for the service of documents in proceedings involving a party to a convention relating to international carriage by air, the amendments bring the rules into line with recent changes to the Civil Aviation Act 1990:
•In relation to qualifications required by a person making an affidavit on behalf of a corporation or association, the amendments discontinue current requirements that the affidavit be made by an officer of the corporation or member of the association, and, instead, allow any person with the necessary knowledge and authority to make the affidavit:
•In relation to certain appeals (principally from statutory tribunals), the amendments clarify that the Court can extend the relevant appeal period only to the extent that the extension is consistent with the statute under which the appeal is brought.
Rule 6 amends rule 61C relating to reviews of orders or decisions made by Masters in Chambers. The amendments prescribe that where the Master has set out his or her reasons for the order or decision following a defended hearing, the order or decision is reviewed as an appeal by way of rehearing (that is a form of hearing that normally proceeds on the record of the case, and in which the appellant has to show why the decision appealed against is wrong). If an order or decision given by a Master in Chambers is not preceded by a defended hearing, or is not supported by recorded reasons, the Judge reviewing the order or decision hears the matter de novo (that is afresh). A Judge who hears a review de novo may give the original order or decision such weight as the Judge thinks appropriate.
Rule 7 is a transitional provision relating to reviews of decisions of Masters in Chambers. It provides that rule 61C, as amended by rule 6, will apply to applications made after the amendments to the rule come into force and to applications made before the amendments come into force where the hearing of the application has not begun.
Rule 8 extends the summary judgment procedure to proceedings in admiralty.
Rule 9 relates to the requisite qualifications of persons making affidavits on behalf of corporations. Rule 9 amends rule 138 (which relates to applications for summary judgment) by revoking subclause (6). That subclause provides that rule 517 (which relates to the requisite qualifications of a person making an affidavit on behalf of a corporation) does not limit the persons who may make an affidavit in support of a corporation applying for summary judgment. In view of the removal of existing restrictions by new rule 517 (as substituted by rule 14), rule 138(6) is no longer appropriate.
Rules 10 and 11 reflect changes made to the law relating to international carriage by air, by the Civil Aviation Amendment Act 1999.
The various conventions relating to international carriage by air and the applicable law now form part of the Civil Aviation Act 1990, rather than the Carriage by Air Act 1967. Accordingly, rules 219 and 223 dealing with service of documents in proceedings involving a party to a convention relating to international carriage by air are altered to reflect this change. References in the 2 rules to proceedings under the Carriage by Air Act 1967 are retained because this Act (as it read prior to the coming into force of the Civil Aviation Amendment Act 1999) will continue to apply to proceedings involving some parties to the relevant conventions.
Rule 12 substitutes a new rule 286. The new rule 286 makes the existing rule 286 (which relates to who may make an affidavit verifying a statement in answer to interrogatories) consistent with new rule 517 on the qualifications of persons who make affidavits on behalf of corporations.
Rule 13 substitutes a new rule 303. The new rule 303 makes the existing rule 303 (which relates to who may make an affidavit verifying a list of documents for the purposes of discovery) consistent with new rule 517 on the qualifications of persons who make affidavits on behalf of corporations.
Rule 14 substitutes a new rule 517. The existing rule 517 provides that an affidavit may be made on behalf of a corporation by an officer of the corporation, and on behalf of a body of persons by a member of the body. Alternatively, the affidavit may be made by a person authorised by the Court. In an emergency, the affidavit may be made by a solicitor. The new rule 517 allows any person to make the affidavit, if the person knows the relevant facts and is authorised to make the affidavit.
Rule 15 also relates to corporate affidavits. The rule amends rule 700E(3), which currently provides that, where a corporation applies to have another corporation put into liquidation, the affidavit verifying the statement of claim must be made by an officer of the corporation having knowledge of the facts. Rule 700E(3) as amended requires the person making the affidavit to meet the requirements of rule 517.
Rule 16 substitutes a new rule 704 and should be read in conjunction with the amendment to rule 705 made by rule 17.
Part 10 of the High Court Rules relates to appeals to the High Court other than appeals under the District Courts Act 1947 or under the Summary Proceedings Act 1957 or appeals by way of case stated. Rule 704 requires a notice of appeal under Part 10 to be filed and served within 1 month after the date of the decision appealed against.
Rule 705 enables the High Court to extend the time for appealing if the enactment conferring the right of appeal permits the extension or does not limit the time prescribed for appealing or prescribes a longer period for appealing than 1 month.
The new rule 704 provides that—
Rule 17 amends rule 705 by removing the Court's discretion to extend the time for appealing if the enactment that confers the right of appeal prescribes a period longer than a month. The effect of the new rule 704 and the amendment to rule 705 is to make the enactment definitive.
Rule 18 amends form 64E. The amendment is consequential on rule 15.