Supreme Court Civil Procedure Act 1932 (Tas)

Supreme Court Civil Procedure Act 1932 An Act to amend the law relating to the civil jurisdiction of the Supreme Court of Tasmania and the procedure and practice relating to the exercise of such jurisdiction, and for other purposes relating to the better administration of justice in this State [Royal Assent 2 August 1933] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART I - Jurisdiction, Procedure, and Practice as to Exercise of Jurisdiction, and Rules of Law 1. Short title and commencement (1) This Act may be cited as the Supreme Court Civil Procedure Act 1932 . (2) This Act shall come into operation on 1st January 1934. 2. Repeals (1) The several statutes mention in Schedule I are hereby repealed to the extent in the said schedule stated. (2) Any enactment inconsistent with this Act in any statute which it is competent for the Parliament of Tasmania to repeal is hereby repealed. (3) But no such repeal shall affect any action, cause, suit, matter, or proceeding duly begun, or any appeal pending, before the commencement of this Act. (4) Except so far as is expressly enacted by any part of this Act, other than subsection (1) and Schedule I , nothing in this Act (including subsection (1) and Schedule I ) shall – (a) take away, lessen, or impair any jurisdiction, power, or authority (judicial or ministerial) which, immediately before the commencement of this Act, was vested in or capable of being exercised by the Supreme Court or by any one or more of the judges thereof, whether sitting in Court or in chambers or elsewhere; or (b) affect any principle or rule of law or equity established or confirmed by or under any enactment repealed by subsection (1) . 3. Interpretation (1) In this Act, unless the contrary intention appears – a judge sitting in chambers, a single judge sitting in chambers, and a judge in chambers include a judge sitting in court as in chambers and a judge sitting in any place otherwise than as a court or as a member of a court; a judge sitting in court means a judge sitting in court as a court, whether with or without a jury or an assessor or assessors; action, when used with reference to proceedings in the Supreme Court, means a civil proceeding commenced by writ of summons or statement of claim, and any proceeding which, by any express provision in the Rules of Court , is declared to be an action: the Rules of Court may declare any proceeding to be an action either for all purposes or for any particular purpose or purposes, and in the latter case the proceeding shall, as to such purpose or purposes, but not further or otherwise, be deemed to be an action; administration includes all letters of administration of the effects of deceased persons, whether with or without a will annexed and whether granted for general, special, or limited purposes; any Act means any Act of the Parliament of Tasmania; any Rules of Court means the Rules of Court for the time being in force under this Act, or any Orders or Rules of Court which are by this Act directed or authorized to be applied or used in the Supreme Court; assessed capital value, when used with reference to land, means the capital value at which the land to which the expression is to be applied is for the time being valued under the provisions of the Valuation of Land Act 2001 , or any Act substituted for that Act; Associate Judge means the Associate Judge of the Supreme Court; Attorney-General includes Solicitor-General in the case of a vacancy in the office of Attorney-General, or in the case of the incapacity of the Attorney-General; body politic includes His Majesty in right of His Imperial Crown and His Majesty in right of any part of His dominions other than this State; cause includes any action, suit, or other original civil proceeding between parties; Charter of Justice means the Charter of Justice granted by the letters patent of His late Majesty William IV, dated 4th March 1831, constituting the Supreme Court of Van Diemen's Land; Chief Justice means the Chief Justice of the Supreme Court or the Acting Chief Justice of the Supreme Court, or, if there is not any Chief Justice as so defined, or if the Chief Justice as so defined is absent, the Senior Puisne judge; Court or a judge means a Full Court or any judge of the Court whether sitting in Court as a Court or as in chambers, or in chambers, but the expression shall be read and construed subject to the provisions of Part II ; defendant includes every person against whom an action is instituted and every person served with any process or with notice of, or entitled to attend, any civil proceeding in the Court; existing means existing immediately before the commencement of this Act; freight includes passage-money and hire; Government of this State means the Executive Government of this State, and it includes His Majesty in right of this State, and the Governor and the several Ministers of the Crown for this State, and any Ministry, Board, Trust, Authority, Commission, Commissioners, persons or person (whether incorporated or not, and howsoever styled) charged or invested as a department or branch of the Executive Government of this State with the execution, administration, management, or control of any duty, authority, or function of the Executive Government of this State, or of any undertaking, business, trade, or other operation or concern whatsoever (whether a commercial operation or concern or not) conducted or carried on for or on behalf of the Executive Government of this State, under or by virtue of His Majesty's Royal Prerogative or any statute or other lawful authority; Houses of Parliament means the Legislative Council and the House of Assembly; in a summary way, as applied to statutes passed before the commencement of this Act, means otherwise than by an action at law or in the Admiralty Jurisdiction of the Court, or a cause or suit in the Ecclesiastical Jurisdiction of the Court, or a suit in equity, or a cause or suit in the Matrimonial Causes Jurisdiction of the Court; and, as applied to statutes passed after the commencement of this Act, means otherwise than by an action; inferior court of civil jurisdiction includes any court instituted under the Magistrates Court Act 1987 when exercising a civil jurisdiction; instrument includes any statute; issue of fact includes the assessment of damages in any cause; judge and single judge mean a judge of the Supreme Court, and include a judge sitting in court and a judge sitting in chambers, and a judge sitting in court or elsewhere as in chambers, and a judge sitting with a jury or an assessor or assessors; judgment includes decree and a decree nisi in a matrimonial cause; jurisdiction includes all powers and authorities incident to the exercise of jurisdiction; matter includes any civil proceeding in the Court, whether between parties or not, and also any incidental proceeding in a cause or matter; non-contentious proceedings in any probate or administration matter means the business of obtaining probate and administration where there is no contention as to the right thereto, including the passing of probates and administrations through the Supreme Court in contentious cases where the contest has been terminated, and all business of a non-contentious nature in matters of testacy and intestacy, not being proceedings in any action, and also the business of lodging caveats against the grant of probate or administration: and the expression common form business in the Rules of Court shall, unless the Rules of Court otherwise provide, have the same meaning; oath includes solemn affirmation and statutory declaration; officer of the Court includes a referee; officer, employee, servant, or agent of the Government of this State includes the Governor, the several Ministers of the Crown for this State, and any such Ministry, Board, Trust, Authority, Commission, Commissioners, persons, or person as is or are mentioned in the definition of "Government of this State", and any subordinate officer, employee, or servant under any such Minister, Ministry, Board, Trust, Authority, Commission, Commissioners, persons, or person as aforesaid, and any other officer, employee, servant, or agent of the Government of this State as such; Order includes rule; original proceeding means any civil proceeding in the Court which is not a proceeding in a pending cause or matter; and it includes every cause, and every summons, order, or notice in any interpleader proceeding, or for the appointment of an arbitrator or umpire, or to remit, set aside, or enforce an award in any arbitration held or to be held within this State; owner, when used with reference to a vessel, includes any person other than the owner responsible for the fault of the vessel, as though the term "owner" included such person; and in any case where by virtue of any charter or demise, or for any other reason, the owner is not responsible for the navigation and management of the vessel, the expression "owner" shall be read as though for references to the owner there were substituted references to the charterer or other person for the time being so responsible; and when used with reference to any cargo or property on board a vessel, means any person entitled to maintain an action against a wrongdoer in respect of any direct and immediate injury to such cargo or property; and it includes a part owner; party includes every person served with notice of or attending any proceeding, although not named on the record or in the process; person includes any corporation sole and any body corporate and any body politic; petitioner includes every person making any application to the Court, either by petition, motion, or summons, otherwise than as against any defendant; plaintiff includes every person asking for relief (otherwise than by way of counter-claim as a defendant) against any other person by any form of proceeding, whether the same be taken by action, petition, motion, summons, rule, or order to show cause, or otherwise; pleading includes the statements in writing of the claim or demand of any plaintiff and of the defence of any defendant thereto, and of the counter-claim of any defendant, and of the reply of the plaintiff to any defence or counter-claim of a defendant, and of any further plea or answer of either party; and any petition or summons; prescribed officer means the officer prescribed by the Rules of Court ; procedure and practice and procedure or practice include the form, mode, and course of proceeding and the process and pleadings in any proceeding (whether original or on appeal), which is subject to the provisions of this Act, and the regulation of all matters whatsoever relating to the institution, conduct, trial, or hearing of, and the adjudication in, any such proceeding, and the enforcement of any adjudication given or made therein and the regulation of all proceedings consequent on any adjudication given or made therein, and the powers of the Court or any judge thereof with respect to any such proceeding, and the means by which particular facts may be proved therein and the mode in which evidence thereof may be given, and the costs of any such proceeding, and the fees and percentages payable in respect thereof, and the fees and allowances to be payable to practitioners of the Court in respect thereof, and the regulation of the payment, transfer, or deposit into, or in or out of, the Court of any money or property and the dealing therewith, and (subject to the provisions of Part II ) the organization of the Court, and the allocation and distribution of the business thereof, and (subject to the provisions of Part III ) the regulations of the sittings of the Court and the judges thereof, and all the jurisdiction and powers conferred and the matters prescribed, provided for, or regulated by the Rules of Court in Schedule II ; public authority means – (a) any local authority; and (b) any – (i) marine board, or port, harbour, or navigation authority; (ii) road, lighting, irrigation, water, power, drainage, or health board, trust, or authority; or (iii) other like public authority – (whether corporate or unincorporate) which is constituted or established by or under any Act and is not a department or branch of the Executive Government of this State; and (c) any individual or individuals or body of persons, whether corporate or unincorporate, and any corporation sole charged or invested (otherwise than as a department or branch of the Executive Government of this State, or as a member or members of the public merely) by or under any Act, or any by-law, order, regulation, or other instrument made or issued under or by virtue of any Act, with the execution, administration, management, or control of any public duty, authority, or function, or any undertaking, business, trade, or other operation or concern whatsoever (whether a commercial operation or concern or not) conducted or carried on for or on behalf of the public or any local or other division of, or any other part of, the public – but does not include either of the Houses of Parliament or any officer thereof when acting as such, or any court or any judge or officer thereof when acting as such, or any officer, employee, servant, or agent of the Government of this State when acting as such; public officer means any officer, employee, servant, or agent of the Government of this State, and any other officer (including a corporation sole) charged or invested with any public duty, authority, or function; but does not include a member or officer of either of the Houses of Parliament when acting as such, or a judge or any officer of any court when acting as such; Registrar means the Registrar of the Supreme Court; repealed as applied either to Imperial statutes generally or a particular Imperial statute means (according to the context) either – (a) that such statutes or statute shall no longer have any force or effect in this State; or (b) declared to be no longer of any force or effect in this State – and the term repeal, as applied to any such statutes or statute, shall have a corresponding meaning; Rules of Court includes forms; Sheriff includes a Deputy-Sheriff and any other person bound or entitled to discharge the duties of the Sheriff; statute means any Imperial Act in force in this State and any Commonwealth Act and any Act of the Parliament of Tasmania, and includes this Act; suit includes action; Supreme Court means the Supreme Court of Tasmania; testamentary cause or matter includes all causes or matters relating to the grant or revocation of probate or administration; the Court means the Supreme Court of Tasmania; the Rules of Court means the Rules of Court, including the forms, fees, costs, and percentages in Schedule II , or other the Rules of Court for the time being in force under this Act; this Part means the part of this Act in which the expression is used; trial includes hearing; unrepealed Act means any Act of the Parliament of Tasmania which is not expressly or impliedly repealed by this Act, and it includes any part of or provision in any Act of the Parliament of Tasmania which is not expressly or impliedly repealed by this Act; vessel means any ship, boat, or other description of vessel used in navigation; wreck includes derelict (including derelict cargo) and any part of a vessel, its apparel or cargo, whether aground or afloat. (2) Any provision in this Act that any jurisdiction which is vested in the Court or any judge thereof by, under, or by virtue of any Commonwealth Act shall be exercised subject to the provisions of any Commonwealth Act, shall be construed to mean that such jurisdiction shall be exercised subject to any provision in any Commonwealth Act prescribing the number of judges by whom such jurisdiction may be exercised, and to any other provision in any such Act regulating the exercise of any such jurisdiction which the Parliament of the Commonwealth of Australia has lawfully enacted, and to any rules or regulations lawfully made under any such Act. (3) Any provision in this Act which is expressed to be made subject to, or is directed to be read or construed subject to, any Commonwealth Act shall be read and construed subject only to such Commonwealth Acts, or such provisions in any Commonwealth Act, as the Parliament of the Commonwealth of Australia has lawfully enacted, and to such rules and regulations as have been lawfully made under any such Act. (4) Any provision in this Act which is expressed to be made subject to any specified Commonwealth Act shall be read and construed subject to such Commonwealth Act only so far as the same is a lawful enactment of the Parliament of the Commonwealth of Australia, and to any rules or regulations lawfully made under any such Act. (5) Any enactment in this Act which is expressed to be made notwithstanding any statute to the contrary shall be construed as purporting to repeal or displace or to operate in derogation of such statutes only as it is competent for the Parliament of Tasmania to repeal, displace, or derogate from. (6) For the purpose of construing the expressions "subject to this Act" and "subject to the provisions of this Act" in this Act, Schedule II shall not be deemed to be part of this Act unless in any particular instance of the use of either of the said expressions it appears from the subject or context that the said schedule is intended to be included in such expression. (7) . . . . . . . . 4. Supreme Court may exercise jurisdiction in Admiralty actions The Supreme Court may exercise the jurisdiction conferred on it in relation to Admiralty causes and matters by or under the Admiralty Act 1988 of the Commonwealth. 5. Jurisdiction of Supreme Court under this Act to be exercised by it as one Court All the jurisdiction of the Court which is by this Act required to be exercised in the manner provided by this Act and the Rules of Court shall be exercised by the Court as one and the same Court, but for the purposes of procedure and practice merely the Rules of Court may prescribe variations in the title of the Court in proceedings therein, and the Rules of Court may provide for such differences in the procedure and practice of the Court in the several parts of such jurisdiction as may be deemed necessary or convenient. 6. How jurisdiction to be exercised (1) Except as is otherwise provided by this Act, all the jurisdiction, whether original or appellate, which immediately before the commencement of this Act was vested in or capable of being exercised by the Court, or by any one or more of the judges thereof sitting in court or chambers, or elsewhere when acting as judges, or a judge by, under, or by virtue of any Imperial Act or the Charter of Justice or any Act of the Parliament of Tasmania, shall be exercised (so far as regards procedure and practice) in the manner provided by this Act and the Rules of Court ; but where no provision, or no appropriate provision, as to the exercise of any such jurisdiction is contained in this Act or in the Rules of Court such jurisdiction shall be exercised as nearly as may be in the same manner as the same might have been exercised if this Act had not passed. (2) Except as is otherwise provided by this Act, and subject to the provisions of any Commonwealth Act, all the jurisdiction, whether original or appellate, which immediately before the commencement of this Act was vested in or capable of being exercised by the Court, or any one or more of the judges thereof sitting in court or chambers, or elsewhere when acting as judges, or a judge by, under, or by virtue of any Commonwealth Act, shall be exercised (so far as regards procedure and practice) in the manner provided by this Act and the Rules of Court ; but where no provision, or no appropriate provision, as to the exercise of any such jurisdiction is contained in this Act or in the Rules of Court , such jurisdiction shall be exercised as nearly as may be in the same manner as the same might have been exercised if this Act had not passed. (3) Any jurisdiction, whether original or appellate, which is conferred on or vested in the Court, or any one or more of the judges thereof sitting in court or chambers, or elsewhere when acting as judges, or a judge by, under, or by virtue of any statute passed after the commencement of this Act, shall (except as otherwise provided by any such statute) be exercised (so far as regards procedure and practice) in the manner provided by this Act and the Rules of Court ; or if no provision, or no appropriate provision, as to the exercise of any such jurisdiction is contained in this Act or in the Rules of Court , then such jurisdiction shall be exercised in such form, mode, and manner as the Court or a judge may direct. (4) Where any statute passed after the commencement of this Act, or any order, rule, regulation, or other instrument, made under or by virtue of any such statute, confers any jurisdiction, whether original or appellate, on the Court, or on the Court or a judge thereof, or on a judge of the Court, such jurisdiction shall (except as otherwise provided by any such statute) be exercised (so far as regards procedure and practice) in the manner directed by subsection (3) . (5) The Court, and every judge thereof, shall, in relation to probate and letters of administration, have – (a) all such voluntary and contentious jurisdiction and authority in relation to granting or revoking of probate and administration of the real and personal estates of deceased persons, as is vested in or exercisable by the Court at the commencement of this Act; (b) within and with respect to this State, the like voluntary and contentious jurisdiction and authority in relation to granting and revoking of probate and administration of the effects of deceased persons, as at the commencement of the Imperial statute intituled the Court of Probate Act 1857 , was exercisable within and with respect to England, or any part thereof, by any court or person in England, together with full authority to hear and determine all questions relating to testamentary causes and matters; (c) like powers within and with respect to this State, in relation to the personal estate in this State of deceased persons, as the Prerogative Court of Canterbury had immediately before the commencement of the Imperial statute intituled the Court of Probate Act 1857 in the Province of Canterbury, or in the parts thereof within its jurisdiction, in relation to those testamentary causes and matters, and those effects of deceased persons, which were at that date within the jurisdiction of that court; (d) such like jurisdiction and powers with respect to the real estate of deceased persons as are hereinbefore mentioned with respect to the personal estate of deceased persons – and the Court shall, in the exercise of such jurisdiction and authorities, perform within this State all such like duties with respect to the estates of deceased persons as were immediately before the commencement of the Imperial statute intituled the Court of Probate Act 1857 to be performed in England, or any part thereof, by ordinaries generally or by the Prerogative Court of Canterbury in respect of probates, administrations, and testamentary causes and matters which were at that date within their respective jurisdictions. (6) Each of the jurisdictions referred to in this section which is required to be exercised (so far as regards procedure and practice) in the manner provided by this Act and the Rules of Court includes all judicial and ministerial powers, duties, and authorities incidental thereto. (7) For the purposes of this Act the jurisdiction exercised by any judges or judge of the Court in granting or refusing a writ of habeas corpus or any order relating to any such writ shall be deemed to be exercised by such judges or judge as such. (8) The jurisdiction conferred on the Court or a judge thereof by this Act and so much of the several jurisdictions referred to in the preceding subsections of this section as are not, by section 9 or any other provision of this Act, excluded from the operation of this Act are in the subsequent provisions of this Act referred to as "the jurisdiction of the Court which is subject to this Act". 7. References in unrepealed statutes to forms of proceeding: How interpreted (1) All references in any unrepealed Act, or any other statute passed before the commencement of this Act which is not repealed by this Act, to any form, mode, or course of proceeding in, or to any form to be used in, any cause or matter within any part of the jurisdiction of the Court which is subject to this Act, shall be deemed to be references to the appropriate form, mode, or course of proceeding, or the form provided or prescribed by this Act or the Rules of Court . (2) All unrepealed Acts, and all other statutes passed before the commencement of this Act and not repealed by this Act, which contain any provision providing for or referring to the obtaining of relief in equity, or the institution of any proceedings in the Equity Jurisdiction of the Court with respect to any cause or matter which is the subject of an action at law, shall be read and construed subject to section 10 . (3) All references in any statute or any instrument to any existing Orders or Rules of the Court relating to the procedure or practice to be followed, observed, or applied in any cause or matter (whether original or on appeal) within any part of the jurisdiction of the Court which is subject to this Act, shall be deemed to be references to the Rules of Court for the time being in force under this Act, so far as such Rules of Court make any provision for the matters dealt with in any such existing Orders or rules or regulated by such procedure or practice. (4) Where by any statute, whether passed before or after the commencement of this Act, Orders or Rules of Court are directed or authorized to be made to regulate the procedure or practice to be followed, observed, or applied in the exercise of any part of the jurisdiction of the Court which is subject to this Act, and no such Orders or rules have been or are made, the Rules of Court for the time being in force under this Act, so far as they are applicable, shall be followed, observed, and applied for the purposes aforesaid. 8. Provision as to exercise of summary jurisdiction (1) In all cases in which any Imperial Act or Act of the Parliament of Tasmania passed before the commencement of this Act confers on the Court or any judge thereof any original jurisdiction (being part of the jurisdiction of the Court which is subject to this Act) to hear and determine or dispose of any application or matter, or to decide any question, or to make any order, or to otherwise exercise any original jurisdiction, in a summary way, such application or matter, or the proceeding to obtain such decision or order, or an exercise of such jurisdiction, shall, subject to the Rules of Court , be instituted in the form or mode prescribed in that behalf by such Act or some other such Act, or if no form or mode is so prescribed, then by motion, summons, petition, or rule, or order to show cause, as may be appropriate; but every such application, matter, or proceeding shall be conducted, proceeded with, heard, and determined in the manner provided by this Act and the Rules of Court . (2) In all cases in which any Imperial Act or Act of the Parliament of Tasmania passed after the commencement of this Act confers on or vests in the Court or any judge thereof any original jurisdiction (which becomes a part of the jurisdiction of the Court which is subject to this Act) to hear and determine or dispose of any application or matter, or to decide any question, or to make any order, or to otherwise exercise any original jurisdiction, in a summary way, such application or matter, or the proceeding to obtain such decision or order, or an exercise of such jurisdiction, shall, subject to the provisions of any such Act, be instituted in the form or mode prescribed by the Rules of Court , or if no form or mode is so prescribed, then by motion, summons, petition, or rule or order to show cause, as may be appropriate; and every such application, matter, or proceeding shall, subject to the provisions of any such Act, be conducted, proceeded with, heard, and determined in the manner provided by this Act and the Rules of Court . (3) In all cases in which the Court or any judge thereof is invested by any Commonwealth Act (whether passed before or after the commencement of this Act) with any original jurisdiction (which is or becomes part of the jurisdiction of the Court which is subject to this Act) to hear and determine or dispose of any application or matter, or to decide any question or to make any order, or to otherwise exercise any original jurisdiction, in a summary way, such application or matter, or the proceeding to obtain such decision or order, or an exercise of such jurisdiction, shall, subject to the provisions of any Commonwealth Act, be instituted in the form or mode prescribed by the Rules of Court , or if no form or mode is so prescribed, then by motion, summons, petition, or rule or order to show cause, as may be appropriate; and every such application, matter, or proceeding shall, subject as aforesaid, be conducted, proceeded with, heard, and determined in the manner provided by this Act and the Rules of Court . (4) Save as by this Act, or by the Rules of Court for the time being in force under this Act, may be otherwise provided, all forms and methods of procedure, and all orders and rules of procedure and practice, which were in force in the Court at the commencement of this Act under or by virtue of any law, custom, general order, or rules whatsoever, and which are not inconsistent with this Act or the Rules of Court for the time being in force under this Act, may continue to be used and practised in such and the like cases, and for such and the like purposes, as those to which they would have been applicable if this Act had not passed. 9. Application of Act (1) Except as provided in Part IX nothing in this Act or the Rules of Court shall affect the jurisdiction of the Court or any judge thereof, or the law to be applied, or the procedure or practice – (a) in criminal causes, matters, or proceedings; (b) in proceedings in bankruptcy or insolvency; (c) in proceedings on applications made under Part 8 of the Electoral Act 2004 ; (d) in proceedings under Part XI of the Justices Act 1959 . (e) . . . . . . . . (f) . . . . . . . . (1A) Nothing in this Act shall affect the procedure or practice of the Court in non-contentious proceedings in any probate or administration matter, but the procedure and practice in such non-contentious proceedings may be regulated by the Rules of Court . (2) Except as provided by subsection (4) , the provisions of paragraph (a) of subsection (1) shall extend to and include appeals from, and any other proceedings to review or call in question, any conviction, order, judgment, determination, or adjudication made or given by a court of summary jurisdiction in any criminal cause, matter, or proceeding.