Chapter 8 - High Court Rules


Section 51 of the Judicature Act 1908 authorises the making of rules regulating the practice and procedure of the High Court in all civil proceedings. The High Court Rules are set out in Schedule 2 to the Judicature Act 1908, and are therefore a statutory enactment. Section 51A of the Act provides that the High Court Rules (and any reprint) may be printed and published under section 14 of the Acts and Regulations Publication Act 1989 as if the High Court Rules were regulations within the meaning of that Act.

By way of contrast, the rules for the Supreme Court, Court of Appeal, criminal jurisdiction of the High Court and the District Courts are not appended as statutory schedules to the Judicature Act 1908, or any other Act, but are simply made as statutory regulations.

The reason for the different treatment of the High Court Rules lies in the need to avoid issues of “ultra vires” (which means unauthorised, or beyond the scope of powers granted by law). There are two aspects to the ultra vires issue: where the content of the rules extends beyond regulating the practice and procedure of the High Court (which is the extent of the scope of section 51); and where the rules incidentally amend certain statutes, which would be objectionable if the rules were made by regulation, but presents no problem if the rules are passed by statute.

In 2008, the Rules Committee identified a number of areas where the content of the rules might present ultra vires issues.179 Among others, they included:

(a)attachment orders;

(b)discovery against non-parties;

(c)freezing orders;

(d)search orders.

Issues of ultra vires may also potentially arise in relation to rules relating to contempt; rules relating to charging orders, sale orders, possession orders, arrest and sequestration orders; rules requiring a party to obtain leave to lodge an appeal or seek a review; and rules providing for the enforcement of judgments or orders, such as orders for the examination of a judgment debtor. This is not an exhaustive list – there may be other matters as well. We note that the arguments relating to ultra vires are much stronger in relation to some of these matters than others, but they are all areas in which doubts as to whether a rule is intra or ultra vires may arise.

Enacting the High Court Rules as a schedule to the Judicature Act 1908 overcomes any questions of ultra vires. However, the vehicle of a statutory schedule for rules is not without problems. Despite being a statutory schedule, the rules can be amended by regulation. As the Legislation Advisory Committee notes in its guidelines, provisions allowing for the making of regulations to amend an empowering statute should only be used in exceptional circumstances, not as a matter of routine.180

At a practical level, because of the length of the rules this method of dealing with them vastly increases the size of the Judicature Act 1908 – the reprinted statute runs to more than 900 pages, of which the High Court Rules take up almost 800 pages.

A different approach is adopted in the District Courts. Rather than appearing in the District Courts Rules, a number of the matters mentioned above, which might raise questions of ultra vires, are provided for in substantive provisions of the District Courts Act 1947.181

This review provides an opportunity to reconsider the way the High Court Rules are established. If, as proposed, the review results in a new consolidated Courts Bill, that legislation is the logical place to set out any rule making powers relating to the courts. How should the High Court Rules be treated in the Bill? There are a number of possibilities.

There are two options which we are inclined to discard:

(a)The rules could be enacted as a schedule to the new consolidated courts statute. This would avoid any questions of ultra vires, but it would have the same disadvantages as the present situation – the length of the resulting statute, and concerns about subsequent amendment of the schedule by regulation.

(b)The Courts Bill could contain a broad empowering provision, which avoids any issues of ultra vires by providing for the making of regulations relating to more than just practice and procedure. However, in our view this is undesirable – empowering provisions should be drafted so that the limits of the delegated legislative power are specified as clearly and precisely as possible.

There are three other options on which we would welcome submitters’ views.

1. Setting out specific rules in legislation

The first option is to adopt the approach taken in the District Courts Act 1947 and set out any rules which might raise issues of ultra vires in the new consolidated Courts Bill itself.

Section 122 of the District Courts Act 1947 empowers the Governor-General, with the concurrence of the Chief District Court Judge and two or more members of the Rules Committee (of whom at least one is a District Court Judge) to make rules by Order in Council regulating the practice and procedure of the Court in the exercise of its jurisdiction. However, the Act also contains specific sections relating to matters that go beyond practice and procedure, such as attachment orders, charging orders, and orders for pre-commencement discovery.

If adopted for the High Court Rules, to successfully avoid any risk of ultra vires this option would require the identification of all the rules that might fall outside the terms of an empowering provision relating only to practice and procedure. Assuming those matters can be satisfactorily identified, the disadvantage of this approach for the High Court Rules is that the resulting statutory rules could only be changed by legislative amendment.

This option would also require portions of the current High Court Rules to be shifted out of the body of the existing rules and into the new bill. This may adversely affect the coherence of the remaining rules. It would also add to the length of the new Courts Bill.

2. Specific rule making powers for areas of concern

The second option is to provide a general rule making power in a new Courts Bill for rules relating to practice and procedure in the High Court, and also expressly set out powers to make rules relating to areas that currently cause concern. For example, the statute could provide that rules may be made providing for discovery and inspection of documents before the commencement of a proceeding. This has the advantage of addressing the ultra vires issue in relation to each area specified, but does not require the full rules to be set out in the legislation. Once rules are made, they could be adjusted without the need for statutory amendment. (A similar approach could be taken to the District Courts Rules in the new consolidated statute.)

Again, this option requires the successful identification and specification of all the areas of concern. This would not necessarily be an easy task, and there may be some disagreement as to where the boundaries lie.


3. Deeming the existing rules to be validly made

A third option is to include a provision in a new Courts Bill that deems the existing High Court Rules to be validly made under the new consolidated statute, and a further provision that authorises them to be printed and published as if they were regulations. Because the existing rules have already been enacted by statute, issues of ultra vires in relation to them would not arise.

The new Courts Bill would contain a power to make future rules regulating practice and procedure in the High Court. Any such rules would need to be within the scope of that empowering section.

This option would be an effective way of carrying the existing rules forward. However, issues may still arise in relation to subsequent amendments to the existing rules, where those are made by Order in Council.

Unlike option 2, this proposal would continue the differing treatment of the High Court and District Courts Rules.


How do you think the High Court Rules should be treated in legislation?

  • Should rules that extend beyond matters of practice and procedure be set out in a new Courts Bill (like the relevant provisions of the District Courts Act 1947)?
  • Should there be specific empowering provisions in a new Courts Bill for the making of rules that extend beyond matters of practice and procedure?
  • Should the existing rules be deemed to be validly made under the new legislation?
  • Is there another approach?

Minutes of the Rules Committee, 9 June 2008.

Legislation Advisory Committee Guidelines at [10.1.8] < >.

See, for example, District Courts Act 1947, s 56A (pre-commencement discovery); ss 84F and following (attachment orders); s 84O (contempt); s 85 (warrant of distress); ss 88-91 (sale of goods seized); s 96 (charging orders).