South Australia: Supreme Court Act 1935 (SA)

South Australia Supreme Court Act 1935 An Act to consolidate and amend certain Acts relating to the Supreme Court. Contents Part A1—Preliminary 1 Short title 3 Repeal 4 Savings 5 Interpretation Part 1—Constitution of the Supreme Court 6 Continuance of Supreme Court 6A Divisions of Supreme Court 7 Judicial officers of the court 8 Qualifications for appointment as judges and Associate Justices 9 Appointments to the court 9A The Chief Justice 9B President 10 Acting Chief Justice and Acting President 11 Acting judges and acting Associate Justices 12 Remuneration of judges and Associate Justices 13 Salaries of Judges, and officers to be in lieu of fees 13A Retirement of judges and Associate Justices 13B Special leave 13H Pre-retirement leave 13I Appointment and conditions of judicial registrars 13J Judicial registrar ceasing to hold office and suspension 14 Certain common interests do not disqualify 15 Seal of court 16 Councils of judges to consider procedure and administration of justice Part 2—Jurisdiction and powers of the court Division 1—General Division 17 General jurisdiction 18 Testamentary jurisdiction 19 Matrimonial jurisdiction Division 1A—Court of Appeal 19A Establishment of Court of Appeal 19B Jurisdiction 19C General requirements as to constitution of Court of Appeal 19D Powers Division 2—Law and equity 20 Concurrent administration of law and equity 21 Equities of plaintiff 22 Equitable defences 23 Counter-claims and third parties 24 Equities appearing incidentally 25 Defence instead of injunction or prohibition 26 Common law and statutory rights and duties 27 Court to do complete justice in cause so as to avoid multiplicity of suits 28 Rules of equity to prevail where in conflict with common law Division 3—Miscellaneous powers 29 Court may make orders to have effect of mandamus or injunction, and may appoint receivers 30 Damages in certain cases 30A Power to direct payment to infant 30B Power to make interim assessment of damages 30BA Consent orders for structured settlements 30C Power to award interest 31 Declaratory orders 32 Court may order mortgage instead of sale in certain cases 34 Court may direct sale of mortgaged property etc 35 Power to require attendance of witnesses and production of evidentiary material 36 Appointment of commissioners for taking affidavits 38 Inspection of property in legal proceedings 39 Vexatious proceedings 40 Power of court with regard to costs 41 Power to revive orders on abatement of cause Part 3—Sittings and distribution of business 42 Abolition of terms 43 Reference to terms for computing time 44 Sitting in vacation 45 Time and place of sittings 46 Adjournment from time to time and place to place 46A Sittings in open court or in chambers 46B Sittings required by proclamation 47 Distribution of business 48 Jurisdiction of single judge, Associate Justice, etc 48A Jurisdiction of judicial registrar 49 Questions of law reserved for Court of Appeal 50 Appeals Part 4—Procedure generally 63 Criminal procedure 64 Saving of existing procedure 65 Mediation and conciliation 66 Trial of issues by arbitrator 67 Expert reports 71 Assessors 72 Rules of court Part 6—Officers of the court Division 1—Registrar 82 The registrar Division 2—Tipstaves 106 Appointment of tipstaves 107 Duty of tipstaves 108 Other duties Division 3—Further provisions as to officers 109 Appointment of other officers 110 Duties of officers 110A Administrative and ancillary staff 110B Responsibilities of non-judicial staff Part 7—Miscellaneous provisions 110C Immunities 111 Rules as to division of loss upon collision at sea 112 Damages for personal injuries 113 Right of contribution 114 Interest on judgment debts 117 Orders to bring prisoners for examination 118 Legal process 118A Service 119 Suitors' funds to vest in registrar 120 Securities in court 121 Liability of Treasurer for default of registrar 122 Banking and investment of suitors' funds 123 Investments made under order of the court 124 Validity of payments etc pursuant to rules of court 125 Remittances by post 126 Power to appoint deputies 126A Certain trials of sexual offences to be given priority 127 Rules of Court 128 Payment to the Treasurer of unclaimed suitors' funds 129 Party subsequently claiming may petition the Supreme Court etc 130 Court fees 131 Accessibility to court records Schedule—Acts repealed Legislative history The Parliament of South Australia enacts as follows: Part A1—Preliminary 1—Short title This Act may be cited as the Supreme Court Act 1935. 3—Repeal The Acts mentioned in the Schedule to this Act are repealed to the extent shown in that Schedule: Provided that— (a) the repeal shall not affect any principle or rule of law, or any established jurisdiction, notwithstanding that the same may have been affirmed by, or derived from, any of the repealed enactments; and (b) any rule, order, or regulation made, and any commission issued, direction given, or thing done, under any enactment repealed by this Act shall continue in force so far as it could have been made, issued, given, or done under this Act, and shall have effect as if it had been so made, issued, given, or done. 4—Savings (1) Nothing in this Act shall— (a) take away or impair any substantive right or privilege of any person: (b) affect any rule of practice or procedure existing at the time of the passing of this Act except to the extent expressly mentioned in this Act or in any rules of court made under this Act: (c) revive any law, enactment, regulation, or rule of court not in force at the time of the passing of this Act: (d) affect in any way anything done or suffered before the passing of this Act under any Act repealed by this Act: (e) affect in any way any proceedings pending at the time of the passing of this Act. (2) Save as otherwise expressly provided, nothing in this Act shall affect the operation of any enactment, which is in force at the commencement of this Act, and is not repealed by this Act. 5—Interpretation (1) In this Act, unless the context otherwise requires, or some other meaning is clearly intended— Associate Justice means an Associate Justice of the Supreme Court; cause includes any action, suit, or other original proceeding between a plaintiff and a defendant; court means the Supreme Court of South Australia; Court of Appeal means the Division of the Supreme Court established under section 19A; defendant includes every person served with any writ of summons or process or served with notice of, or entitled to attend any proceeding; evidentiary material means any document, object or substance of evidentiary value in proceedings before the court and includes any document, object or substance that should, in the opinion of the court, be produced for the purpose of enabling the court to determine whether or not it has evidentiary value; existing means existing at the time of the passing of this Act; formerly, when used in relation to the courts or the law or practice in England, means prior to the Supreme Court of Judicature Act 1873 and when used in relation to the court or the law or practice in South Australia, means before the passing of the Supreme Court Act 1878; judge includes the Chief Justice, the President and any puisne judge of the court; judgment includes decree; judicial registrar means a Supreme Court judicial registrar; jurisdiction of the court includes powers and authorities (whether of a judicial, ministerial or administrative nature) vested in the court, a judge, or an Associate Justice by law or custom; matter includes every proceeding in the court not in a cause; order includes rule; parties includes as well as the plaintiff and defendant in the action any person not originally a party against whom any counterclaim is set up, or who has been served with notice to appear under any of the rules of court; and also every person served with notice of or attending any proceeding, although not named on the record; plaintiff means a person who brings any form of proceeding in the court (other than an appeal)— (a) asserting a right to any form of relief against another; or (b) asking the court to exercise a power or discretion, and includes a defendant making a claim against another by way of counterclaim or third-party claim; pleading includes any summons, and also the statement in writing of the claim or demand of any plaintiff and of the defence of any defendant thereto, and also any other matter by rules of court to be included under the term pleading; President means the President of the Court of Appeal; registrar means a person holding, or acting in, the office of registrar of the court, but does not include a judicial registrar; rules of court includes forms; suit includes action; suitors' funds means moneys in the custody or charge of the court that have been paid into the court for or on account of, or to the use or credit of, any person in a cause or matter, and includes interest and accretions upon any such moneys. (2) Subject to the rules of court, a reference in an Act, or in any regulation, by-law, or instrument made under an Act, to a master or a deputy master of the court shall— (a) where the reference occurs in connection with the performance of an act of a judicial nature—be construed as a reference to an Associate Justice; and (b) where the reference occurs in connection with the performance of an act of an administrative nature—be construed as a reference to the registrar. Part 1—Constitution of the Supreme Court 6—Continuance of Supreme Court The Supreme Court of South Australia as by law established is hereby continued as the superior court of record, in which has been vested all such jurisdiction (whether original or appellate) as is at the passing of this Act vested in, or capable of being exercised by that court. 6A—Divisions of Supreme Court The Supreme Court is constituted of the General Division and the Court of Appeal. 7—Judicial officers of the court (1) The General Division of the court consists of— (a) the Chief Justice; and (b) the puisne judges of the court that are not appointed to the Court of Appeal; and (c) the Associate Justices; and (d) the judicial registrars. (1a) The Court of Appeal consists of— (a) the Chief Justice; and (b) the President; and (c) the puisne judges of the court that are appointed to the Court of Appeal; and (d) the Associate Justices; and (e) the judicial registrars. (2) Subject to this Act or any other Act, the judges, Associate Justices and judicial registrars have the power, authority and jurisdiction conferred on them under this Act or any other Act, and the rules of court made under this Act or any other Act. (3) The puisne judges shall be styled "Justices of the Supreme Court of South Australia". (4) An Associate Justice is, while holding that office, also a District Court Judge. 8—Qualifications for appointment as judges and Associate Justices (1) No person shall be qualified for appointment as a puisne judge of the court unless he is a practitioner of the court of not less than ten years' standing. (1a) A person is not qualified for appointment as President unless the person is a practitioner of the court of not less than 12 years' standing or a puisne judge of the court. (2) No person shall be qualified for appointment as Chief Justice unless he is a practitioner of the court of not less than fifteen years' standing or a puisne judge of the court. (3) No person shall be qualified for appointment as an Associate Justice unless he is a practitioner of the court of not less than seven years standing. (4) For the purpose of determining whether a practitioner of the court has the standing necessary for appointment as a judge or Associate Justice, periods of legal practice and (where relevant) judicial service within and outside the State will be taken into account. 9—Appointments to the court (1) Whenever necessary, the Governor shall appoint a qualified person to hold the office of judge of the court or judge of the Court of Appeal with the tenure prescribed by the Constitution Act 1934, but subject to the provisions of this Act as to retirement. (2) Appointments to the office of Associate Justice shall be made by the Governor whenever necessary. (3) Subject to the provisions of this Act as to retirement, the commission of an Associate Justice shall remain in full force during his good behaviour but the Governor may, upon the address of both Houses of Parliament, remove an Associate Justice from office and revoke his commission. 9A—The Chief Justice (1) The Chief Justice is the principal judicial officer of the court. (2) The Chief Justice is responsible for the administration of the court. 9B—President The President is a judge of the Supreme Court and is responsible, subject to the Chief Justice's directions, for the administration of the Court of Appeal. 10—Acting Chief Justice and Acting President (1) If— (a) the Chief Justice is absent or, for any reason, is unable for the time being to carry out the duties of the office; or (b) the office of the Chief Justice becomes vacant, the Governor may appoint— (c) the President; or (d) if the President is absent or, for any reason, is unable for the time being to carry out the duties of the office—a puisne judge of the court, to be Acting Chief Justice until the Chief Justice returns to official duties or a person is appointed to the office of the Chief Justice (as the case requires). (2) If— (a) the President is absent or, for any reason, is unable for the time being to carry out the duties of the office; or (b) the office of the President becomes vacant, the Governor may appoint a puisne judge of the court to be Acting President until the President returns to official duties or a person is appointed to the office of the President (as the case requires). (3) Any power or duty attached to the office of the Chief Justice or President by or under this or any other Act— (a) on the appointment of a judge to be Acting Chief Justice or Acting President, devolves on the judge so appointed; or (b) if no such appointment is made, devolves— (i) during the absence or inability of the Chief Justice or until a vacancy in the office of Chief Justice is filled— (A) on the President; or (B) if the President is absent or, for any reason, is unable for the time being to carry out the duties of the office—on the most senior of the puisne judges appointed to the Court of Appeal who is available to undertake those responsibilities; or (ii) during the absence or inability of the President or until a vacancy in the office of President is filled—on the most senior of the puisne judges appointed to the Court of Appeal who is available to undertake those responsibilities. 11—Acting judges and acting Associate Justices (1) Where it appears necessary or desirable to do so in the interests of the administration of justice, the Governor may, subject to subsection (6)— (a) appoint a person who is qualified for appointment as a puisne judge as an acting judge (either of the court or of the Court of Appeal); or (b) appoint a person who is qualified for appointment as an Associate Justice as an acting Associate Justice. (1a) A former judge or Associate Justice who has retired from office is eligible for appointment as an acting judge (of the court or of the Court of Appeal) or an acting Associate Justice. (1b) An appointment under this section will be for a term not exceeding 12 months. (2) The jurisdiction of the court is exercisable by an acting judge to the same extent as by a judge, and by an acting Associate Justice to the same extent as by an Associate Justice. (3) An acting judge or acting Associate Justice has the same privileges and immunities as a judge or Associate Justice. (5) An acting judge or an acting Associate Justice may, notwithstanding the expiration of the period of his appointment, complete the hearing of any proceedings part-heard by him before the expiration of that period and, in relation to any such proceedings, shall be deemed to continue as an acting judge, or acting Associate Justice. (6) A District Court Judge or a Deputy President of the South Australian Civil and Administrative Tribunal or of the South Australian Employment Tribunal may not be appointed as an acting judge under subsection (1) except on the recommendation of the Chief Justice made with the concurrence of the Chief Judge of the District Court or of the President of the relevant Tribunal (as the case requires). 12—Remuneration of judges and Associate Justices (1) The Chief Justice, the President and each puisne judge are entitled to salary and allowances at rates determined by the Remuneration Tribunal in relation to the respective offices. (2) An Associate Justice is entitled to salary and allowances at the rates applicable to a District Court Judge. (3) A rate of salary for a judge or Associate Justice cannot be reduced by determination of the Remuneration Tribunal. (4) The remuneration of the judges and Associate Justices is payable from the General Revenue of the State, which is appropriated to the necessary extent. 13—Salaries of Judges, and officers to be in lieu of fees The salaries of the judges, and of the officers of the court, shall be in lieu of all fees or other emoluments whatsoever, it being the intent of this Act that the judges and the officers of the court shall derive no emolument from any fees payable under the authority of this Act, but that such fees shall be paid to the Treasurer in aid of the general revenue of the State. 13A—Retirement of judges and Associate Justices (1) A judge or Associate Justice shall retire on reaching the age of seventy years. (2) Section 74 of the Constitution Act 1934 shall be read subject to this section. (3) A judge or Associate Justice who retires or resigns may nevertheless complete the hearing and determination of proceedings part-heard by him before his retirement or resignation and, in relation to any such proceedings, shall be deemed to continue as a judge or Associate Justice (as the case may require). 13B—Special leave (1) A judge may apply to the Chief Justice for special leave without remuneration. (2) The Governor may, on the recommendation of the Chief Justice, grant an application for special leave under this section. (3) A period of special leave under this section will not be taken to be judicial service within the meaning of the Judges' Pensions Act 1971. 13H—Pre-retirement leave (1) Subject to this section, the Governor may grant to any judge or Associate Justice immediately prior to his retirement not more than six months leave of absence on full salary. (2) Where a judge or Associate Justice retires or resigns without taking any leave which had been or could have been granted to him under subsection (1) of this section, the Governor may direct that a cash payment be made to him in lieu of the leave not so taken. The payment shall not exceed the amount of the salary of the judge or Associate Justice for a period equal to the period of the leave not so taken, calculated at the rate at which he was being paid at the time of the retirement or resignation. (3) A direction under subsection (2) of this section may be given before or after the retirement or resignation of the judge or Associate Justice and a payment under that subsection may be made before or after that retirement or resignation. (4) If any judge or Associate Justice dies before the commencement or during the currency of any leave granted or before such leave has been granted pursuant to subsection (1) of this section the Governor may, in respect of the period of the leave so granted or the unexpired portion thereof, or in respect of the period of the leave which might have been granted (according to the circumstances of the case), pay to the dependants (if any) of such judge or Associate Justice the amounts of salary which would have been payable to such judge or Associate Justice himself if he had survived. (4a) If the judge or Associate Justice died without leaving any dependants the Governor may pay the said amounts of salary to his personal representatives. (4b) Any question as to— (a) whether there are any dependants in any particular case, or who are the dependants; (b) what dependant or dependants shall be entitled to the benefit of payments made under this subsection, and in what proportions if more than one dependant, shall be settled by the Governor, as he deems proper. (4c) In this section— dependants means those members of the family of a judge or Associate Justice who were wholly or in part dependent upon his earnings at the time of his death; domestic partner, in relation to a deceased judge or Associate Justice, means— (a) a person declared under the Family Relationships Act 1975 to have been the domestic partner of that judge or Associate Justice (as the case may be) as at the date of the judge's or Associate Justice's death; or (b) a person who was in a registered relationship with the judge or Associate Justice (as the case may be) as at the date of the judge's or Associate Justice's death; members of the family includes spouse, domestic partner, parents, grandparents, step-parents, children, grandchildren, step-children, brothers, sisters, half-brothers and half-sisters; registered relationship means a relationship that is registered under the Relationships Register Act 2016, and includes a corresponding law registered relationship under that Act; spouse—a person is the spouse of another if they are legally married. (5) Where leave is granted to any judge or Associate Justice under this section, that judge or Associate Justice may, at the commencement of such leave, be paid the total salary which would be payable to him during the currency of the leave. (6) This section shall not apply to a person who was, immediately before the commencement of the Statutes Amendment (Administration of Courts and Tribunals) Act 1981, the master or a deputy master of the court. 13I—Appointment and conditions of judicial registrars (1) The Governor may, on the recommendation of the Attorney‑General and with the concurrence of the Chief Justice, appoint a legal practitioner of at least 5 years standing to be a Supreme Court judicial registrar. (2) The term of appointment (which must be for at least 7 years), the remuneration and the conditions of service applicable to a person holding an appointment under this section will be as determined by the Governor with the concurrence of the Chief Justice, and specified in the instrument of appointment. (3) An appointment of a judicial registrar under this section will be taken to be on a full‑time basis unless the instrument of appointment provides that the appointment is on a part‑time basis. (4) However, a judicial registrar not appointed on a part‑time basis may, by written agreement with the Chief Justice made with the approval of the Attorney‑General, perform the duties of office on a part‑time basis for a period specified in the agreement. (5) An instrument appointing a judicial registrar on a part‑time basis or an agreement under subsection (4) must specify the hours of duty the judicial registrar will ordinarily be required to work, expressed as a proportion of the time a judicial registrar appointed on a full‑time basis is ordinarily required to work. (6) The hours of duty specified in an instrument of appointment or an agreement under subsection (4) may be varied by written agreement between the judicial registrar and the Chief Justice made with the approval of the Attorney‑General. (7) The remuneration determined by the Governor with the concurrence of the Chief Justice and specified in the instrument of appointment may not be reduced by subsequent determination. (8) However, a judicial registrar (whether appointed on a full‑time or part‑time basis) is, while performing the duties of the office on a part‑time basis, entitled to remuneration on a pro‑rata basis in respect of the hours of duty at the rate determined by the Governor under this section in relation to a judicial registrar appointed on a full‑time basis. (9) For the purpose of determining whether a legal practitioner has the standing necessary for appointment to the office of judicial registrar, periods of legal practice within and outside the State will be taken into account. (10) A person appointed as a judicial registrar is, on the recommendation of the Attorney‑General and with the concurrence of the Chief Justice eligible for reappointment at the expiration of a term of office. (11) A judicial registrar may, with the approval of the Attorney‑General and the concurrence of the Chief Justice, concurrently hold office as a member of the court's non‑judicial staff if the non‑judicial office is compatible with the judicial office. 13J—Judicial registrar ceasing to hold office and suspension (1) The Governor may, on the recommendation of the Attorney‑General, remove a judicial registrar from office for— (a) mental or physical incapacity to carry out official duties satisfactorily; or (b) neglect of duty; or (c) dishonourable conduct. (2) A judicial registrar ceases to hold office if the judicial registrar— (a) dies; or (b) completes a term of office and is not reappointed; or (c) resigns by written notice to the Attorney‑General; or (d) ceases to satisfy any qualification by virtue of which the person was eligible for appointment to the office of judicial registrar; or (e) is removed from office under subsection (1). (3) The Attorney‑General may only make a recommendation under subsection (1) with the concurrence of the Chief Justice. (4) The Chief Justice may, on the Chief Justice's own initiative or at the request of the Attorney‑General, suspend a judicial registrar from office if it appears that there may be grounds for the removal of the judicial registrar from office. (5) If a judicial registrar is suspended under subsection (4), the judicial registrar remains entitled to the judicial registrar's usual remuneration and allowances during the period of suspension. 14—Certain common interests do not disqualify A judge, Associate Justice or judicial registrar of the court is not incapable of acting in judicial office in any proceeding by reason of being 1 of several ratepayers or taxpayers or 1 of any other class of persons liable in common with others to contribute to or be benefited by a rate or tax which may be increased, diminished or in any way affected by that proceeding. 15—Seal of court (1) The court shall continue to have and use a seal bearing a device or impression of the Royal Arms, within an exergue or label surrounding the same, and with the following inscription: "Supreme Court, South Australia"; and the said seal shall be kept in the custody of the registrar. (2) There shall also be kept and used such other seals as are required for the business of the court, and such seals shall be in such form and kept in such custody as the Chief Justice directs. (3) All documents and exemplifications and copies thereof purporting to be sealed with any such seal shall be receivable in evidence without further proof of the seal. 16—Councils of judges to consider procedure and administration of justice The judges shall— (a) assemble once at least in every year for the purpose of considering the operation of this Act and of the rules of court for the time being in force, and also the working of the several offices, and the arrangements relative to the duties of the officers of the court respectively, and of inquiring and examining into any defects which appear to exist in the system of procedure or the administration of the law in the said court; and (b) report annually to the Attorney-General of the State what (if any) amendments it would, in their judgment, be expedient to make in this Act, or otherwise relating to the administration of justice, and what other provisions (if any) which cannot be carried into effect without the authority of Parliament, it would be expedient to make for the better administration of justice. Part 2—Jurisdiction and powers of the court Division 1—General Division 17—General jurisdiction (1) The court shall be a court of law and equity. (2) Subject to subsection (3), there is vested in the court in its General Division— (a) the like jurisdiction, in and for the State, as was formerly vested in, or capable of being exercised by, all or any of the courts in England, following: (i) The High Court of Chancery, both as a common law court and as a court of equity: (ii) The Court of Queen's Bench: (iii) The Court of Common Pleas at Westminster: (iv) The Court of Exchequer both as a court of revenue and as a court of common law: (v) The courts created by commissions of assize: (b) such other jurisdiction, whether original or appellate, as is vested in, or capable of being exercised by the court: (c) such other jurisdiction as is in this Act conferred upon the court. (3) The court does not, in its General Division, have jurisdiction in respect of the matters that are, under section 19B, to be heard and determined by the Court of Appeal. 18—Testamentary jurisdiction (1) Subject to this Act and the Succession Act 2023, the court has jurisdiction, including jurisdiction for all purposes the court considers appropriate— (a) to make and revoke a grant of probate of the will or letters of administration of the estate of any deceased person; and (b) to hear and decide all testamentary matters; and (c) to hear and decide all matters relating to the estate and the administration of the estate of any deceased person. (2) The court may make any declaration, and make and enforce any order, that may be necessary or convenient in the exercise of its jurisdiction under the Succession Act 2023. 19—Matrimonial jurisdiction There shall be vested in the court— (a) the like jurisdiction in relation to matrimonial causes and matters as was immediately before the commencement of the Matrimonial Causes Act 1857 vested in or exercisable by any ecclesiastical court or person in England in respect of divorce a mensa et thoro, nullity of marriage, jactitation of marriage or restitution of conjugal rights, and in respect of any matrimonial cause or matter except marriage licences: (b) all such jurisdiction in relation to matrimonial causes and matters as under or by virtue of any enactment not repealed by this Act, is vested in or capable of being exercised by the court. Division 1A—Court of Appeal 19A—Establishment of Court of Appeal The Court of Appeal is established as a division of the Supreme Court. 19B—Jurisdiction The Court of Appeal has jurisdiction to hear and determine— (a) subject to this or any other Act, all appeals from a single judge sitting in court as a judge; and (b) subject to this or any other Act, and to the rules of court—all appeals from a single judge sitting in chambers; and (c) all rules and orders to show cause returnable before the Court of Appeal; and (d) all questions of law referred to or reserved for the consideration of, or directed to be argued before the Court of Appeal; and (e) all causes and matters which are required by the rules of court, or by the express provision of any other Act, to be heard or determined by the Court of Appeal. 19C—General requirements as to constitution of Court of Appeal (1) Subject to this or any other Act, and to the rules of court, the Court of Appeal will be constituted of not less than 3 judges when hearing and determining any matter. (2) If, in accordance with any Act or rules of court, the Court of Appeal may be constituted by 2 judges, a decision of the Court is to be in accordance with the opinion of those judges or, if the judges are divided in opinion, the proceedings are to be reheard and determined by the Court of Appeal constituted by 3 judges (including, if practicable, the 2 judges who first heard the proceedings). 19D—Powers In hearing and determining matters within the jurisdiction conferred by section 19B, the Court of Appeal has and may exercise any jurisdiction or powers— (a) that the court has in its General Division; or (b) that were exercisable by the Full Court of the Supreme Court immediately before the commencement of section 4(2) of the Supreme Court (Court of Appeal) Amendment Act 2019. Division 2—Law and equity 20—Concurrent administration of law and equity In every civil cause or matter commenced in the court, law and equity shall be administered by the court according to the provisions of the seven sections of this Act next following. 21—Equities of plaintiff If a plaintiff claims to be entitled to any equitable estate or right, or to relief upon any equitable ground against any deed, instrument, or contract, or against any right, title, or claim whatsoever, asserted by any defendant or respondent in the cause or matter, or to any relief founded upon a legal right which formerly could only have been given by the court in its equitable jurisdiction, the court shall give to the plaintiff the same relief as ought formerly to have been given by the court in its equitable jurisdiction in a suit or proceeding properly instituted for the like purpose. 22—Equitable defences If a defendant claims to be entitled to any equitable estate or right, or to relief upon any equitable ground against any deed, instrument, or contract, or against any right, title, or claim asserted by any plaintiff in the cause or matter, or alleges any ground of equitable defence to any such claim of the plaintiff, the court shall give to every equitable estate, right, or ground of relief so claimed, and to every equitable defence so alleged the same effect by way of defence against the claim of the plaintiff as the court in its equitable jurisdiction ought formerly to have given if the same or the like matters had been relied on by way of defence in a suit or proceeding instituted in that court for the like purpose. 23—Counter-claims and third parties (1) The court shall have power to grant to any defendant, in respect of any equitable estate or right, or other matter of equity, and also in respect of any legal estate, right, or title claimed or asserted by him— (a) all such relief against any plaintiff as the defendant has properly claimed by his pleading, and as the court or judge might have granted in any suit instituted for that purpose by the same defendant against the same plaintiff; and (b) all such relief relating to or connected with the original subject of the cause or matter, and in like manner claimed against any other person, whether already a party to the same cause or matter or not, who has been duly served with notice in writing of such claim, pursuant to any rules of court, as might properly have been granted against that person if he had been made a defendant to a cause duly instituted by the same defendant for the like purpose. (2) Every person served with any such notice shall thenceforth be deemed a party to the cause or matter with the same rights in respect of his defence against the claim, as if he had been duly sued in the ordinary way by the defendant. 24—Equities appearing incidentally The court shall recognise and take notice of all equitable estates, titles, and rights, and all equitable duties and liabilities appearing incidentally in the course of any cause or matter pending before it, in the same manner in which the said court in its equitable jurisdiction would formerly have recognised and taken notice of the same in any suit or proceeding duly instituted therein. 25—Defence instead of injunction or prohibition No cause or proceeding at any time pending in the court shall be restrained by prohibition or injunction, but every matter of equity on which an unconditional injunction against the prosecution of any such cause or proceeding might formerly have been obtained, may be relied on by way of defence thereto: Provided that— (a) nothing in this Act shall disable the court, if it thinks fit, from directing a stay of proceedings in any cause or matter pending before it; and (b) any person, whether a party or not to any such cause or matter, who would formerly have been entitled to apply to the court, in any of its jurisdictions, to restrain the prosecution thereof, or who may be entitled to enforce, by attachment or otherwise, any judgment, decree, rule, or order, in contravention of which all or any part of the proceedings in such cause or matter may have been taken, shall be at liberty to apply to the court, in a summary way, for a stay of proceedings in the cause or matter, either generally or so far as may be necessary for the purposes of justice, and the court shall thereupon make such order as is just. 26—Common law and statutory rights and duties Subject to the provisions of this Act for giving effect to equitable rights and other matters of equity, the court shall recognise and give effect to all legal claims and demands, and all estates, titles, rights, duties, obligations, and liabilities, existing by the common law, or by any custom, or created by any statute, in the same manner as those matters would formerly have been recognised and given effect to by the court in any branch of its jurisdiction. 27—Court to do complete justice in cause so as to avoid multiplicity of suits The court in every cause or matter pending before it shall have power to grant, and shall grant, either absolutely or on such reasonable terms and conditions as it deems just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of every legal or equitable claim properly brought forward by them respectively, in such cause or matter, so that, as far as possible, all matters so in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of such matters avoided. 28—Rules of equity to prevail where in conflict with common law Subject to the express provisions of any other Act, in questions relating to the custody and education of infants, and generally in all matters not particularly mentioned in this Act in which there was formerly any conflict or variance between the rules of equity and the rules of common law with reference to the same matter, the rules of equity shall prevail in all the courts of the State, so far as the matters to which those rules relate, are cognizable by those courts. Division 3—Miscellaneous powers 29—Court may make orders to have effect of mandamus or injunction, and may appoint receivers (1) The court may grant a mandamus, or an injunction, or appoint a receiver, by an interlocutory order in all cases in which it appears to the court to be just or convenient so to do. (2) Any such order may be made either unconditionally or upon such terms and conditions as the court thinks just. (3) If an application is made (whether before, or at, or after the hearing of any cause or matter for an injunction) to prevent any threatened or apprehended waste or trespass, the injunction may be granted, if the court thinks fit, whether the person against whom the order is sought is or is not in possession under any claim of title or otherwise, or (if out of possession) does or does not claim a right to do the act sought to be restrained under any colour of title, and whether the estates claimed by both or by either of the parties are legal or equitable. 30—Damages in certain cases In any action arising out of the breach of any covenant, contract, or agreement, or instituted to prevent the commission or continuance of any wrongful act or for the specific performance of any covenant, contract, or agreement, the court shall have power to award damages to the party injured either in addition to or substitution for the injunction or specific performance, and those damages may be assessed by the court or in such manner as it directs. 30A—Power to direct payment to infant Where in any action the court determines that a party (being an infant) is entitled to recover damages from another party, the court may by final or declaratory judgment finally determining the question of liability between the parties order payment of any amount or amounts of damages, direct to the plaintiff. Any acknowledgment or receipt in writing of any moneys paid on account of any such amount or amounts pursuant to a judgment under this section shall not if the court so orders be invalid merely on the ground that the person giving the same was under the age of twenty-one years at the time of his signing or giving the same. 30B—Power to make interim assessment of damages (1) Where in any action the court determines that a party is entitled to recover damages from another party, it shall be lawful for the court to enter declaratory judgment finally determining the question of liability between the parties, in favour of the party who is entitled to recover damages as aforesaid, and to adjourn the final assessment thereof. (2) It shall be lawful for the court when entering declaratory judgment and for any judge of the court at any time or times thereafter— (a) to make orders that the party held liable make such payment or payments on account of the damages to be assessed as to the court seems just; and (b) in addition to any such order or in lieu thereof, to order that the party held liable make periodic payments to the other party on account of the damages to be assessed during a stated period or until further order: Provided, however, that where the declaratory judgment has been entered in an action for damages for personal injury, such payment or payments shall not include an allowance for pain or suffering or for bodily or mental harm (as distinct from pecuniary loss resulting therefrom) except where serious and continuing illness or disability results from the injury or except that, where the party entitled to recover damages is incapacitated or partially incapacitated for employment and being in part responsible for his injury is not entitled to recover the full amount of his present or continuing loss of earnings, or of any hospital, medical or other expenses resulting from his injury, the court may order payment or payments not to exceed such loss of earnings and expenses and such payment or payments may be derived either wholly or in part from any damages to which the party entitled to recover damages has, but for the operation of this proviso, established a present and immediate right or except where the judge is of opinion that there are special circumstances by reason of which this proviso should not apply. (3) Any order for payment of moneys on account of damages made hereunder may be enforced as a judgment of the court. (4) Where the court adjourns assessment of damages under this section, it may order the party held liable to make such payment into court or to give such security for payment of damages when finally assessed as it deems just. (5) When damages are finally assessed credit shall be given in the final assessment for all payments which have been made under this section and the final judgment shall state the full amount of damages, the total of all amounts already paid pursuant to this section and the amount of damages then remaining payable, and judgment shall be entered for the last-named amount. (6) Where the court adjourns assessment of damages under this section, any party to the proceedings may apply to any judge of the court at any time and from time to time— (a) for an order that the court proceed to final assessment of the damages; or (b) for the variation or termination of any order which may have been made for the making of periodic payments. On the hearing of any such application the judge shall make such order as he considers just: Provided that, in an action for damages for personal injury, upon an application for an order that the court proceed to final assessment of damages, the Judge to whom such application is made shall not refuse such order if the medical condition of the party entitled to recover damages is such that neither substantial improvement nor substantial deterioration thereof is likely to occur or if a period of four years or more has expired since the date of the declaratory judgment unless the judge is of opinion that there are special circumstances by reason of which such assessment should not then be made. (7) If it appears to the court that a person in whose favour declaratory judgment has been entered has without reasonable cause failed to undertake such reasonable medical or remedial treatment as his case might have required or require, it shall not award damages for such disability, pain or suffering as would have been remedied but for such failure. (8) If at any time it appears to a judge that a person in whose favour declaratory judgment has been entered and who is incapacitated or partially incapacitated for employment, is not sincerely or with the diligence which should be expected of him in the circumstances of his case, attempting to rehabilitate himself for employment any payment or payments under subsection (2) of this section shall not include by way of allowance for loss of earnings a sum in excess of seventy-five per centum of such person's loss of earnings. (9) — (a) Notwithstanding anything in the Survival of Causes of Action Act 1940, when damages are finally assessed under this section for the benefit of the estate of a deceased person where the deceased person died after action brought and declaratory judgment has been entered in favour of such person, the damages finally assessed may include such damages in respect of any of the matters referred to in section 3 of that Act as the court deems proper. (b) Where a party dies after declaratory judgment has been entered in his favour but before final assessment of his damages in circumstances which would have entitled any person to recover damages, solatium or expenses by action pursuant to Part 2 of the Wrongs Act 1936, it shall be lawful for the executor or administrator of the deceased to proceed in the same action for the recovery of such damages, solatium or expenses for the benefit of such person notwithstanding the declaratory judgment or that the deceased has received moneys thereunder, provided, however, that in any such proceedings all moneys paid to the deceased pursuant to the declaratory judgment in excess of any actual and subsisting pecuniary loss resulting to him from the wrongful act of the party held liable shall be deemed to have been paid towards satisfaction of the damages, solatium or expenses awarded pursuant to the Wrongs Act 1936 and no further damages shall be payable in respect of the injury sustained by the deceased. In any proceedings hereunder, the declaratory judgment and any finding of fact made in the course of proceedings consequent thereupon shall enure as between the party held liable and the executor or administrator of the deceased. (c) Where a party dies in the circumstances referred to in the preceding paragraph of this subsection except that the death of the deceased is not wholly attributable to the personal injury, the subject of the declaratory judgment, but was accelerated thereby, it shall be lawful for proceedings to be taken and for the court to assess damages, solatium or expenses as in the preceding paragraph but such damages, solatium or expenses shall be proportioned to the injury to the person for whom and for whose benefit the proceedings are taken resulting from such acceleration of death. (d) The court may, if the justice of a case so requires, assess damages under paragraph (a) of this subsection notwithstanding the commencement or prosecution of proceedings under paragraph (b) or (c) of this subsection and the damages so assessed shall be for the benefit of the estate of the deceased and no damages shall be awarded under paragraph (b) or (c) of this subsection. (10) In the exercise of the powers conferred by this section the court shall have regard to the facts and circumstances of the particular case, as they exist from time to time, and any allowance, or the final assessment, as the case may be, shall be such as to the court may seem just and reasonable as compensation to the person actually injured or to his or her dependants as the case may be. 30BA—Consent orders for structured settlements In an action for damages for personal injury, the court may, with the consent of the parties, make an order for damages to be paid wholly or in part in the form of periodic payments, by way of an annuity or otherwise, instead of in a lump sum. 30C—Power to award interest (1) Unless good cause is shown to the contrary, the court shall, upon the application of a party in favour of whom a judgment for the payment of damages, compensation or any other pecuniary amount has been, or is to be, pronounced, include in the judgment an award of interest in favour of the judgment creditor in accordance with the provisions of this section. (2) The interest— (a) will be calculated at a rate fixed by the court; and (b) will be calculated in respect of a period fixed by the court (which must, however, in the case of a judgment given on a liquidated claim, be the period running from when the liability to pay the amount of the claim fell due to the date of judgment unless the court otherwise determines); and (c) is payable, in accordance with the court's determination, in respect of the whole or part of the amount for which judgment is given. (3) Where a party to any proceedings before the court is entitled to an award of interest under this section, the court may, in the exercise of its discretion, and without proceeding to calculate the interest to which that party may be entitled in accordance with subsection (2) of this section, award a lump sum in lieu of that interest. (4) This section does not— (a) authorise the award of interest upon interest; or (ab) authorise the award of interest upon exemplary or punitive damages; or (b) apply in relation to any sum upon which interest is recoverable as of right by virtue of an agreement or otherwise; or (c) affect the damages recoverable upon the dishonour of a negotiable instrument; or (d) authorise the award of any interest otherwise than by consent upon any sum for which judgment is pronounced by consent; or (e) limit the operation of any other enactment or rule of law providing for the award of interest. 31—Declaratory orders No action or proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the court shall have power to make binding declarations of right whether any consequential relief is or could be claimed or not. 32—Court may order mortgage instead of sale in certain cases In any proceeding in which the court has power to order a sale of any real or personal property, the court shall have power, instead of ordering a sale, to make such order, as is just and convenient, for a mortgage of the property, with power of sale to the mortgagee; and, for the purpose of perfecting such mortgage, to order the execution of all deeds and documents in the same manner as in the case of a sale of property. 34—Court may direct sale of mortgaged property etc In any action for the foreclosure of the equity of redemption in any mortgaged property, and upon the request of the mortgagee, or of any subsequent encumbrancer, or of the mortgagor, or any person claiming under any such person, the court may direct a sale of the property, or a transfer of the mortgage debt and security, instead of a foreclosure of the equity of redemption, on such terms as the court thinks fit, and, if the court thinks fit, without previously determining the priorities of encumbrances, or giving the usual or any time to redeem: Provided that if the request is made by any subsequent encumbrancer, or by the mortgagor, or by any person claiming under such encumbrancer or mortgagor, no such sale shall be directed without the consent of the mortgagee or the persons claiming under him, unless the party making such request deposits in court a reasonable sum of money, to be fixed by the court, for the purpose of securing the performance of such terms as may be imposed on the party making such request. 35—Power to require attendance of witnesses and production of evidentiary material (1) The court may, on the application of a party to proceedings or on its own initiative, issue a subpoena requiring a person to appear before the court at a specified time and place to give evidence or to produce evidentiary material (or both). (2) A subpoena to produce evidentiary material may, instead of providing for production of the material before the court, provide for production of the material to an officer of the court nominated in the subpoena. (3) If— (a) a person fails to comply with a subpoena under subsection (1); or (b) there are grounds for believing that, if such a subpoena were issued, a person would not comply with it, the court may issue a warrant to have the person arrested and brought before the court. 36—Appointment of commissioners for taking affidavits (1) Any two or more judges of the court of whom the Chief Justice shall be one, may by commission under the seal of the court from time to time empower such persons as they think fit and necessary, whether within or outside the State, to take all such affidavits as any person desires to make before any person so empowered in or concerning any cause, matter or thing pending in the court. (2) Every person so appointed shall be a commissioner for taking oaths in all causes and matters whatsoever in every jurisdiction of the court. 38—Inspection of property in legal proceedings (1) For the purpose of any proceeding therein, the court may order a view or inspection of any land or chattel, and any judge, juryman, or other person authorised by the order, may enter on any land or premises which it is necessary or convenient to enter on for the purpose of such inspection. (2) Every person in possession of any such land or premises shall allow such entry for the purposes aforesaid, and in case of any obstruction or refusal of such entry, the person or persons so obstructing or refusing such entry, shall be deemed guilty of a contempt of court, and be liable to punishment accordingly. 39—Vexatious proceedings (1) If, on the application of the Attorney-General or any other interested person, the court is satisfied that a person has persistently instituted vexatious proceedings, the court may make either or both of the following orders: (a) an order prohibiting the person by whom the vexatious proceedings were instituted from instituting further proceedings, or further proceedings of a particular class, without permission of the court; (b) an order staying proceedings already instituted by that person. (2) Where it appears to a prescribed court that there are proper grounds for an application under this section, it may refer the matter to the Attorney-General for consideration. (3) An order under this section remains in force (subject to variation by the court)— (a) if a period for the operation of the order is fixed—until the expiration of that period or the revocation of the order (whichever first occurs); (b) if no such period is fixed—until revocation of the order. (4) Where an order is made under this section, a copy of the order must be published in the Gazette. (5) For the purposes of this section, proceedings are vexatious— (a) if instituted to harass or annoy, to cause delay, or for any other ulterior purpose; or (b) if instituted without reasonable ground. (6) In this section— prescribed court means— (a) the Supreme Court; or (b) any other court of the State; or (c) the South Australian Employment Tribunal; and (d) any other tribunal of the State prescribed by the regulations; proceedings means civil or criminal proceedings instituted in a prescribed court. 40—Power of court with regard to costs (1) Subject to the express provisions of this Act, and to the rules of court, and to the express provisions of any other Act whenever passed, the costs of and incidental to all proceedings in the court, including the administration of estates and trusts, shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and to what extent such costs are to be paid. (2) If— (a) an action for the recovery of damages or any other monetary sum is brought in the court; and (b) the action might have been brought in the District Court; and (c) the plaintiff recovers less than an amount fixed by the rules for the purposes of this paragraph, no order for costs will be made in favour of the plaintiff unless the court is of the opinion that it is just, in the circumstances of the case, that the plaintiff should recover the whole or part of the costs of action. 41—Power to revive orders on abatement of cause When any judgment or order for the payment of any costs or money has been made in any cause or matter, and the suit afterwards becomes abated, it shall be lawful for the court or a judge, upon the application of any person interested under the judgment or order, to make an order reviving the cause or matter, and permitting the applicant to prosecute and enforce the judgment or order, upon such terms (if any) as the court or judge thinks fit. Part 3—Sittings and distribution of business 42—Abolition of terms The division of the legal year into terms is abolished as far as relates to the administration of justice, and there shall be no terms applicable to any sitting or business of the court. 43—Reference to terms for computing time In all cases in which the terms, into which the legal year was formerly divided, are used as a measure for determining the time at or within which any act is required to be done, those terms may continue to be referred to for the same or the like purpose, unless provision is otherwise made by law. 44—Sitting in vacation Provision shall be made by rules of court for the hearing during vacation of all such applications as require to be immediately or promptly heard. 45—Time and place of sittings (1) The court may sit at any time (including a Sunday). (2) The court may sit at any place (either within or outside the State). (3) The court in its General Division will sit at such times and places as the Chief Justice may direct. (3a) The Court of Appeal will sit at such times and places as the President may direct. (4) Registries of the court will be maintained at such places as the Governor may determine. 46—Adjournment from time to time and place to place The court may— (a) adjourn proceedings from time to time and from place to place; or (b) adjourn proceedings to a time, or a time and place, to be fixed; or (c) order the transfer of proceedings from place to place. 46A—Sittings in open court or in chambers Subject to any provision of an Act or any rule to the contrary, the court's proceedings must be open to the public. 46B—Sittings required by proclamation The Governor may, by proclamation, require that sittings of the court (other than civil sittings) be held with a specified frequency in specified parts of the State. 47—Distribution of business (1) If the Chief Justice is satisfied that, by reason of— (a) the complexity of a specified proceeding; and (b) the limited availability of judges of the General Division, it is necessary to assign a judge in the Court of Appeal to hear the proceeding, the Chief Justice may, after consultation with the President of the Court of Appeal, by instrument in writing, assign and authorise a judge in the Court of Appeal to hear and determine the proceeding. (1a) The consultation between the Chief Justice and the President of the Court of Appeal referred to in subsection (1) will be conducted in accordance with a protocol approved by the Judges at a council of judges held pursuant to section 16. (1b) Without limiting subsections (1) and (1a), if— (a) the Chief Justice and the President agree that it is convenient for the purposes of the proper administration of the Court— (i) that a judge or acting judge in the General Division act as a judge in the Court of Appeal; or (ii) that a judge or acting judge in the Court of Appeal act as a judge in the General Division; and (b) the particular judge or acting judge agrees to undertake such acting duties, the Chief Justice may, by instrument in writing, authorise the judge to undertake such acting duties for a specified proceeding or for a period specified in the instrument of appointment. (2) Subject to subsections (3) and (4), a judge may not be appointed to act in another division of the court in accordance with subsection (1b) for a period exceeding 12 months. (3) A judge who has been appointed to act in another division of the court under subsection (1b) for a period of 12 months may, if the Attorney‑General consents, be reappointed for a further period not exceeding 12 months. (4) A judge appointed to act in another division of the court under subsection (1b) may, despite the expiration of the period of the acting appointment, complete the hearing of any proceedings part‑heard by the judge before the expiration of that period and, in relation to any such proceedings, will be deemed to continue as an acting judge in that division of the court. 48—Jurisdiction of single judge, Associate Justice, etc (1) Subject to this or any other Act, and to the rules of court, the jurisdiction vested in, or exercisable by the court, may be exercised by 1 or more judges sitting in court. (2) The jurisdiction of the court may be exercised— (a) by a judge in chambers; or (b) by an Associate Justice or judicial registrar, to the extent authorised by this or any other Act, or by the rules of court. 48A—Jurisdiction of judicial registrar (1) Subject to the regulations, judicial registrars may exercise the jurisdiction of the court as assigned by the Chief Justice or the rules. (2) If the court is constituted of a judicial registrar in criminal proceedings, the court— (a) may not impose a sentence of imprisonment; and (b) if of the opinion that the limitation on its powers imposed under this subsection prevents it from imposing an appropriate sentence—may adjourn the question of sentence for hearing and determination by a judge. 49—Questions of law reserved for Court of Appeal (1) The court constituted of a single judge, Associate Justice or judicial registrar may reserve a question of law for the consideration of the Court of Appeal. (2) Subject to any express enactment the like powers may be exercised in relation to any appeal or matter whatsoever, which comes before a judge, under any enactment by which a judge of the court is designated as the judge, arbitrator, or person appointed to hear and determine the appeal or matter, notwithstanding that the determination of the judge is expressed to be final or without appeal. 50—Appeals (1) Subject to this section— (a) an appeal lies to the Court of Appeal against a judgment of the court constituted of a single judge; and (b) an appeal lies against a judgment of the court constituted of an Associate Justice. (2) An appeal against a judgment of an Associate Justice or judicial registrar lies, if the rules so provide, to the Court of Appeal and otherwise to the court constituted of a single judge. (2a) Subject to the rules, subsections (3) and (4)(a)(i) do not apply to an appeal against a judgment of a judicial registrar. (3) No appeal lies against— (a) an order allowing an extension of time to appeal from a judgment; or (b) an order giving unconditional permission to defend an action; or (c) a judgment that is, by statute, under the rules, or by agreement of the parties, final and without appeal. (4) An appeal lies only with the permission of the court— (a) from a judgment of any of the following classes: (i) a judgment given by consent of the parties; (ii) a judgment given by a single judge on appeal from a judgment of the Magistrates Court; or (b) if the rules provide that the appeal lies by permission of the court. (5) The rules cannot, however, require the court's permission for an appeal if the judgment under appeal— (a) denies, or imposes conditions on, a right to defend an action; or (b) deals with the liberty of the subject or the custody of an infant; or (c) grants or refuses relief in the nature of an injunction or the appointment of a receiver; or (d) is a declaration of liability or a final assessment of damages under section 30B; or (e) makes a final determination of a substantive right. Exception— If a judgment is given by a single judge on appeal from some other