Judiciary Amendment Act (No. 2) 1979

No. 138 of 1979

An Act to amend the Judiciary Act 1903.

BE IT ENACTED by the Queen, and the Senate and House of Representatives of the Commonwealth of Australia, as follows:

Short title, &c.

1. (1) This Act may be cited as the Judiciary Amendment Act (No. 2) 1979.

(2) The Judiciary Act 1903 is in this Act referred to as the Principal Act.

Commencement

2. This Act shall come into operation on the day on which the High Court of Australia Act 1979 comes into operation.

Interpretation

3. Section 2 of the Principal Act is amended by omitting the definition of “The Chief Justice” and substituting the following definitions:

“‘Chief Justice’ includes a Justice for the time being performing the duties and exercising the powers of the Chief Justice;

‘Justice’ means a Justice of the High Court and includes the Chief Justice;”.

Repeal of Part II of Principal Act

4. Part II of the Principal Act is repealed.

State Supreme Courts invested with jurisdiction in Chambers

5. Section 17 of the Principal Act is amended by omitting from sub-section (1)”, subject to any Rules of Court,”.

Applications for special leave to appeal to High Court

6. Section 21 of the Principal Act is amended by omitting from sub-section (1) “leave or”.

Decision in case of difference of opinion

7. Section 23 of the Principal Act is amended by omitting from paragraph (a) of sub-section (2) “or of a Supreme Court of a State or a Judge thereof,” and substituting “a decision of a Supreme Court of a State or Territory or a Judge of such a Court, a decision of the Federal Court of Australia or a Judge of that Court or a decision of the Family Court of Australia or a Judge of that Court”.

Removal by order of the High Court

8. Section 40 of the Principal Act is amended by omitting from sub-section (5) “such Registry of the High Court as is directed by the order” and substituting “the Registry of the High Court”.

Repeal of Part VIII of Principal Act

9. Part VIII of the Principal Act is repealed.

10. Section 55c of the Principal Act is amended—

(a) by omitting sub-section (1) and substituting the following sub-section:

“(1) For the purposes of section 55b, the Registrar of the High Court shall cause a Register of Practitioners to be kept at the Registry of the High Court;”; and

(b) by omitting the word “Principal” before “Registrar” (wherever occurring).

Reservation of points of law

11. Section 72 of the Principal Act is amended by omitting from sub-section (3) “Principal Registry” and substituting “Registry of the High Court”.

Effect of order of Full Court

12. Section 74 of the Principal Act is amended by omitting from sub-section (1) “If the trial was had in a State in which the principal seat of the Court is not situated, the proper officer” and substituting “The proper officer”.

13. After Part X of the Principal Act the following Parts are inserted:

“PART Xa—PROCEDURE OF THE HIGH COURT

“Division 1—Trials

Trial without jury

“77a. In every suit in the High Court, unless the Court otherwise orders, the trial shall be by a Justice without a jury.

Power of High Court to direct trial with jury

“77b. The High Court may, in any suit in which the ends of justice appear to render it expedient to do so, direct the trial with a jury of the suit or of an issue of fact, and may for that purpose make all such orders, issue all such writs and cause all such proceedings to be had and taken as the Court thinks necessary, and upon the finding of the jury the Court may give such decision and pronounce such judgment as the case requires.

Trial of an issue and new trials

“77c. (1) The High Court may, in any case in which the Court directs the trial of an issue or grants a new trial, impose such conditions on a party, and direct such submissions to be made by a party, for the purpose of the trial or new trial as are just.

“(2) Where the High Court grants a new trial, the Court may—

(a) grant the new trial, either generally or on particular issues only, as the Court thinks fit; and

(b) order that testimony of a witness examined at the former trial may be used in the new trial in such manner as is specified in the order.

Juries

“77d. (1) Subject to sub-section (4) and to any other law of the Commonwealth, the laws in force in a State or Territory relating to—

(a) the qualification of jurors;

(b) the preparation of jury lists and jury panels;

(d) the number of jurors;

(e) the right of challenge;

(f) the discharge of juries;

(g) the disagreement of jurors;

(h) the remuneration of jurors; and

(j) other matters concerning jurors after they have been summoned, appointed or sworn,

that apply for the purposes of the trial of civil proceedings in the Supreme Court of that State or Territory extend and shall be applied in civil matters in which a trial is had with a jury in the High Court in that State or Territory.

“(2) Subject to sub-section (4) and to any other law of the Commonwealth, the laws in force in a State or Territory relating to the matters mentioned in paragraphs (1) (a) to (j), inclusive, that apply for the purposes of the trial of criminal matters in the Supreme Court of that State or Territory extend and shall be applied in the trial of indictable offences in the High Court in that State or Territory.

“(3) For the purposes of a trial of a civil or criminal matter in the High Court in a State or Territory as mentioned in sub-section (1) or (2), the list of jurors made for the purposes of the Supreme Court of the State or Territory shall be deemed to have been made as well for the purposes of the High Court.

“(4) The precept for a jury shall be issued by the Registrar or such other officer of the High Court as the Court directs, and the Marshal shall prepare the jury panels and summon jurors.

“(5) An officer of a State or Territory who has the custody of a jury list shall furnish a copy of the list to the proper officer of the Commonwealth on demand and on payment of a reasonable fee.

“Division 2—Evidence

Production of books

“77e. (1) The High Court may in any suit order a party to produce any books or writings in his possession or power that contain evidence pertinent to any issue in the suit.

“(2) If a party fails to comply with an order under sub-section (1), the High Court may—

(a) where the party is the plaintiff—dismiss the suit; or

(b) where the party is the defendant—give judgment against him as by default.

Oaths and affirmations

“77f. (1) The High Court may require and administer all necessary oaths and affirmations.

“(2) A person may, for the purposes of any proceeding before the High Court, make an affirmation instead of an oath.

“(3) The Chief Justice may issue commissions to persons within or beyond Australia authorizing them to administer oaths and affirmations for the purposes of proceedings in the High Court.

“(4) Subject to the Rules of Court, the forms of oaths and affirmations shall be the same, as nearly as practicable, as those that are used in the Supreme Court of the State or Territory in which the oath or affirmation is administered.

Orders and commissions for examination of witnesses

“77g. The High Court may, in any cause pending in the Court and at any stage of the proceedings—

(a) order the examination of a person upon oath orally or on interrogatories before the Court, an officer of the Court or another person at any place within Australia; or

(b) order that a commission issue to a person, either within or beyond Australia, authorizing him to take the testimony upon oath of a person orally or on interrogatories,

and the Court may—

(c) by the same or a subsequent order give any necessary directions concerning the time, place and manner of the examination; and

(d) empower any party to the cause to give in evidence in the cause the testimony so taken on such terms (if any) as the Court directs.

Oral and affidavit evidence

“77h. (1) On the hearing of any matter, not being the trial of a cause, evidence may be given by affidavit or as otherwise directed or allowed by the High Court.

“(2) At the trial of a cause, proof may be given by affidavit of the service of a document in or incidental to the proceedings in the cause or of the signature of a party to the cause or of his solicitor to such a document.

“(3) The High Court may at any time, for sufficient reason and on such conditions as are just, order that particular facts may be proved by affidavit at the trial of a cause, or that the affidavit of a person may be read at the trial of a cause.

“(4) Notwithstanding any order under sub-section (3), if a party to a cause desires in good faith that the maker of an affidavit (other than an affidavit referred to in sub-section (2)) proposed to be used in the cause be cross-examined with respect to the matters in the affidavit, the affidavit may not be used in the cause unless that person appears as a witness for cross-examination or the High Court, in its discretion, permits the affidavit to be used without the person so appearing.

“(5) If the parties to a suit so agree and the High Court does not otherwise order, testimony at the trial of the suit may be given by affidavit.

“(6) Subject to the foregoing provisions of this section, testimony at the trial of a cause shall be given orally.

“Division 3—Defects and errors

Amendment

“77j. (1) At any stage of a proceeding before the High Court, the Court may, on such terms as are just, make such amendment as it thinks necessary to correct any defect or error in the proceeding.

“(2) All necessary amendments shall be made for the purpose of determining the real questions in controversy or otherwise depending on the proceedings.

Formal defects not to invalidate

“77k. (1) No proceedings in the High Court are invalidated by a formal defect or an irregularity unless the Court is of opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by an order of the Court.

“(2) The High Court may, on such conditions (if any) as the Court thinks fit, make an order declaring that a proceeding is not invalid by reason of a defect that it or he considers to be formal, or by reason of an irregularity.

“Division 4—Reserved judgments

Reserved judgments

“77l. (1) When any cause or matter, after being fully heard before a Full Court, is ordered to stand for judgment, it is not necessary that all the Justices before whom it was heard be present together in court to declare their opinions on the cause or matter, but the opinion of any of them may be reduced to writing and may be read or otherwise made known by any other Justice at any subsequent sitting of a Full Court at which judgment in the cause or matter is delivered.

“(2) In any such case the question shall be decided in the same manner, and the judgment of the Court has the same force and effect, as if the Justice whose opinion is so read or otherwise made known had been present in court and had declared his opinion in person.

“Division 5—Judgment and execution

Enforcement of judgments

“77m. (1) Subject to the Rules of the Court, a person in whose favour a judgment of the High Court is given is entitled to the same remedies for the enforcement of the judgment in a State or Territory, by execution or otherwise, against the person, or against the property of the person, against whom the judgment is given, as are allowed in like cases by the laws of that State or Territory to persons in whose favour a judgment of the Supreme Court of that State or Territory is given.

“(2) This section does not affect the operation of any provision made by or under any other Act or by the Rules of Court for the execution and enforcement of judgments of the High Court.

Interest on judgment debts

“77n. A judgment debt under a judgment of the High Court carries interest, at such rate as is fixed by the Rules of Court, from the date as of which the judgment is entered.

Interpleader

“77p. When any claim is made to property taken in execution upon process issued out of the High Court, the Marshal or a Deputy Marshal may take in the Supreme Court of the State or Territory in which the property is situated the same proceedings by way of interpleader as if the process had been issued out of that Supreme Court, and that Supreme Court and the Judges of that Supreme Court have jurisdiction to entertain and determine the matter.

Discharge of property taken in execution

“77q. A seizure or attachment of property in execution upon process issued out of the High Court becomes inoperative upon the occurrence of any event by which, according to the laws of the State or Territory in which the property is situated, the seizure or attachment would become inoperative if made upon like process issued out of the Supreme Court of that State or Territory.

“Division 6—Receivers and managers

Receivers and managers

“77r. (1) The High Court may, at any stage of a proceeding and on such terms and conditions as the Court thinks fit, appoint a receiver or manager in any case in which it appears to the Court to be just or convenient to do so.

“(2) A receiver or manager appointed under sub-section (1) may, without the previous leave of the High Court, be sued in respect of any act or transaction done or entered into by him in carrying on the business connected with the property of which he is receiver or manager.

“(3) When in any cause pending in the High Court a receiver or manager appointed by the Court is in possession of any property, the receiver or manager shall manage and deal with the property according to the requirements of the laws of the State or Territory in winch the property is situated in the same manner as that in which the owner or possessor of the property would be bound to do if in possession of the property.

“PART Xb—APPEALS TO THE HIGH COURT

“Division 1—Security

Security

“77s. (1) The Rules of Court may make provision for and in relation to the giving, in an appeal to the Court, of security for the prosecution of the appeal without delay and for the payment of costs that may be awarded against the appellant.

“(2) If security is not given as required by or in accordance with the Rules of Court, the High Court may order that the appeal be dismissed.

“(3) This section does not affect the operation of any provision made by or under any other Act for or in relation to the giving of security.

“Division 2—Procedure

Institution of appeals

“77t. Appeals to the High Court shall be instituted within such time and in such manner as are prescribed by Rules of Court.

Stay of proceedings

“77u. When an appeal has been instituted, the High Court or the Court or Judge appealed from may order a stay of all or any proceedings under the judgment appealed from.

Death of party to an appeal

“77v. (1) When a party to a judgment from which an appeal lies to the High Court has, whether before or after the commencement of this section, died before the time allowed for instituting an appeal has expired, it is not necessary to revive the cause or matter by any formal proceedings.

“(2) If the personal representative of the deceased party desires to appeal, he may file in the Court by which the judgment was given or made a duly certified copy of the instrument by which he is appointed, and thereupon may institute an appeal in the same manner as the party whom he represents might have done.

“(3) In the case of the death of the party in whose favour the judgment is given or made, notice of appeal may be given to his personal representative, or, if there is no such representative, to such person as the High Court directs.”.

State or Territory laws to govern where applicable

14. Section 79 of the Principal Act is amended by adding “or Territory” after “State” (wherever occurring).

Common law to govern

15. Section 80 of the Principal Act is amended by inserting “or Territory” after “State”.

Application of sections 79 and 80 to Territory courts

16. Section 80a of the Principal Act is amended by omitting “and for that purpose references in the last two preceding sections to a State shall be read as references to a Territory”.

Rules of Court

17. Section 86 of the Principal Act is amended by omitting paragraph (c).

Transitional provisions

18. (1) The particulars that, immediately before the commencement of this Act, were entered in the Register of Practitioners kept at the Principal Registry of the High Court under section 55c of the Principal Act shall, by force of this sub-section, be deemed to be incorporated in and form part of the Register of Practitioners kept by the Registrar of the High Court under section 55c of the Principal Act as amended by this Act.

(2) Sub-section 77e(2) of the Principal Act as amended by this Act applies in relation to an order made before the commencement of this Act under section 17 of the High Court Procedure Act 1903 in like manner as it applies in relation to an order made under sub-section 77e(1) of the Principal Act as so amended.

(3) Paragraph 77g(c) of the Principal Act as amended by this Act applies in relation to an examination ordered before the commencement of this Act under section 19 of the High Court Procedure Act 1903 in like manner as it applies in relation to an examination ordered under section 77g of the Principal Act as so amended.

(4) Paragraph 77g(d) of the Principal Act as amended by this Act applies in relation to testimony taken in pursuance of an order made before the commencement of this Act under section 19 of the High Court Procedure Act 1903 in like manner as it applies in relation to testimony taken in pursuance of an order made under section 77g of the Principal Act as so amended.

(5) Sub-section 77r(2) of the Principal Act as amended by this Act applies in relation to a receiver or manager appointed before the commencement of this Act under section 29 of the High Court Procedure Act 1903 in like manner as it applies in relation to a receiver or manager appointed under sub-section 77r(1) of the Principal Act as so amended.

(6) Sub-section 77s(5) of the Principal Act as amended by this Act applies in a case where security or additional security is not given in accordance with section 35 or 36 of the High Court Procedure Act 1903 in like manner as it applies where security or further security is not given in accordance with section 77s of the Principal Act as so amended.