Supreme Court Act 1867 (SA)

ANNO TRICESIMO PRIM0

A. D. 1867.

No. 8.

A92 Act to cwfer additional Powers ~ly,o?z the Supreme Court of Sozrth

Australia in all Branches of its Jurisdiction, and $W other

rq

puyoses.

[Assented to, 19th December, 1867.1

HEREA$ it is expedient to confer additional powers upon the Preamble.

Supreme Court, and that such powers may be exercised by the said Court in some or & of the branches of the jurisdiction at present vested in the said Court, or which may hereafter be con- ferred upon or vested in it, and to make further provisions for enforcing such powers-Be it therefore EnacteG, by the Governor-in- Chief of the Province of South Australia, with the advice and consent of the Legislative Council and House of Assembly of the said Province, in this present Parliament assembled, as follows:

" Action" shall mean and include all actions, suits, petitions, inqni.ri~s,

1. This Act may bc cited for all purposes as the "Suprme Bh&title.

Court Act, 1867."

2, In the construction of this Act, unless the same shall be incon- Interpretation.

sistent with the context or subject matter, the following words and expressions shall have the meanings hereafter assigned to them

respectively, that is to say: I

" The Court" and G The said Court" shall mean the Supreme Court

of the Province of South Australia, including the branches

of its jurisdiction, except criminal, as now mtab shed, and any !l

jurisdiction which may hereafter be conferred upon it:

31" VICTORIE, No. 8. .--- --

Supreme Court A pt. - l 867.

inquiries, or other proceedings, now pending in the said Court, or which may hereafter be commenced or institute6 therein or presented thereto.

Court may order	3. The C o u ~ t or a	Judge thereqf in every action depending
examination of wit-

nesseswithinjuriedio- therein may, upon the application of any of the parties to such tion. action. order the examination uDon oath upon interrogatories or

otherkise before the Master of the said CO& or othe; person or persons to be named in such order of any witnesses within the jurisdiction of the Court, and by such order, or any subsequent order or orders may give all such directions touching the time, place, and manner of such examination, and all other matters and circumstances connected with such examination as may appear reasonable and just.

mission for examina- COurtma~iasuecOm- 4. The Court or a Judge thereof, in every action depending

tion of witnesses out therein, may, upon the application of any of the partieu to such of jurisdiction. action, order a commission to issue for the exambation upon oath,

upon interrogatories: or otherwise, of any witnesses okt of the jurisdiction of the said Court, and thereupon any of the parties to such action may cause such proceedings to be instituted and had for enforcing the attendance of witnesses and production of writings or other documents, and obtaining directions touching the time, place, and manner of such examination, and all other matters connected with nuch examination as are prescribed to be instituted, and had in such cases, by an Act of the Imperial Parliament made and passed in the Session of Parliament holden in the twenty-second year of the reign of Her Majesty Queen Victoria, intituled '' An Act to provide for taking evidence in suits and proceedings pending before tribunals

. in Her Majesty's llominions in places out of the jurisdiction of such tribunals:" Provided that nothing herein contained shall be con- strued to take away or abridge the powers conferred upon the Chief

A~pl icat ionforde	Justice of the. said Court by the said Imperial Act for framing rules and orders as mentioned in the sixth section thereof.
or commieeion to be	5. Application for an order for the examination of witnesses within the jurisdiction of the Court, or a conlmission for examination of witnesses without such jurisdiction, shall in the first instance be made to a Judge by summons, or, if on behalf of a plaintiff or petitioner proceeding in default of appearance, without summons.
by summona.
Persona to take
mmination to be	6. The person or persons to be named in any such order or to be nominated and agreed upon by the parties in the action, and approved of by the Judge, to whom the application is made, or for want of agreement to be nominated by such Judge.

n,~D,ted ay p l ~ e ~, commission to takc such examination, shall be the person or persons

Party applying to 7. The ordet or comnlission is to be drawn up and prepared by the

draw up rule.	party applying for the same, and a copy thereof &hall be delivered
to the parties entitled to cross-examine the witnesses to be examined
thereunder two clear daye befoxe mch order or commission ahall issue,

-b.A " and

31" VICTORTB, No. 8.

Supreme Court Act.--1867,

---

and they or either of them may apply to a Judge by summons to alter or amend the order or commission, or to insert any special pro- vision therein.

8. Any of the parties to the action, who on the hearing of the summons, have not elected to join in the order or commission, may	may apply for leave
Any party to nction
to join in commiasicn.
apply to a Judge by summons for leave to join in such order or commission, and to examine witnesses thereunder; and the Judge,
by whom the application is heard, may direct the nccessary alterations
to be made i13 the order or commission for that purpose, and settle the same, and may give such directions as to costs or otherwise, or may refuse such application, as he shall think fit.
9. After the issuing of a summons to show cause why a party to the action should not have leave to join in an order or commission, such	join commission not
After appliention to
to issue without leave,
order or commission shall not issue without the direction of a Judge.
10. When any order shall be made for the examination of witnesses within the jurisdiction of the Court, the Court or any	ance of witnesses or Compelling attend-
production of docu-
Judge thereof may, in and by the first, or some subsequent order,	ments.
command the attendance of any person to be namcd in such order, for
the purpose of being examined, or for the production of any writings
or other documents to be mentioned in such order, and may direct the
attendance of any such person, to be at his own place of abode, or
elsewhere if necessary and convenient so to do; and the wilfd dis-	Disobedience con-
obedience of any such order shall be deemed a contempt of	tempt of Court.
Court, and proceedings may be thereupon had by attachment (the Judge's order being made a rule cf Court before or at the time of
the application for an attachment) if, in addition to the service of
the order, an appointment of the time and place of atten- dance in obedience thereto, signed by the person or persons appointed to take t h ~ examination, or by any one or more of such persons, shall be also served upon the person whose attendance is so
Provided that every person whose attendance shall be so ordered	ordered, together with or after the service of such order:
shall be entitled to the like conduct money and payment for expenses, and also for loss of time, as upon :attendance at a trial: Provided also, that no person shall be compelled, under any such order, to answer questions tending to criminate himself, or quelstions which he might refuse to answer if called as a witness, nor to pro- duce any writing or other document that he would not be com- pellable to produce at the trial of the action.

11. All and every person appointed to take the examination of Examinationofwit-

witnesses by any &der or commission, may, and he and they are ..the	n e w s to be taken on
hereby authorized and required, to take all such examinations upon the oath of the witnesses, or affirmation in cases where affirmation is

I	allowed Ey law instead of oath, to be administered by the person 80 appointed, and if, upon such oath or affirmation, any person making
the same shall wilfully and corruptly give any false evidence, every
person so offending shall be deemed and taken to be guilty of perjury, and shall and may be prosecuted for such offence accordingly.

12. The

-

Persona appointed for

taking examinations	12. The person or persons appointed to take any examination
may report to the

Court upnn the	of witnesses may, and he and they are hereby required to make, if
conduct or absence of	need be, a special report touching such examination, and the con-
witneasee.	duct or absence of any witness or other person thereon or relating thereto, and the Court, in the case of a person within its jurisdiction, is hereby authorized to institute such proceedings and make such order or orders upon such report as justice may require, and as may be instituted and made in any case of contempt of the Court.
costa may be costs in
the cause,	13. The costs of any order to be made for the exammation of witnesses under any order or commission, by virtue of this Act, and of the proceedings thereupon, shall be costs in the cause, unless otherwise directed, either by the Judge making such order, or by the Judge before whom the action may be tried, or by the Court.
Reeemation as to

rc:a&ng examination 14. No examination or deposition to be taken by virtue of this

o ~ ~ c p o ~ ~ ~ ~ o n a *itbout Act shall be read in evidence at any trial or any hearing without the

consento f theo~~os~ t~	consent of	the ~ a r t v	against whom tbe same is offered, unless it
party.

shall appear to the satizaction of the Judge or the court, as the case may be, that the examinant or deponent is beyond the jurisdiction of the Court, or dead, or unable from permanent

sickness or other permanent infirmity to attend the trial; in all

or any of which cases the examinations and depositions, certified under the band of the Comn~issioners, Master, or other person or persons taking the same, shall and may, without proof of the signature to such certificate, be received and read in evidence,

saving all just exceptions.

Prisoners may be

brought up for exami- 15. Any Sheriff, gaoler, or other officer, having the custody trial, or proceeding, civil or criminal, shall take such prisoner for examination before the Court, or any Judge thereof, or

l~ati"n	on Jdgea9 of any prisoner, whose evidence may be required in any action,
order.

before any person or persons appointed to take-any examina-	tion, upon receiving an order of a Judge for that purpose, which
order may be obtained upon affidavit by the parties requiring the attendance of such prisoner, and such order shall set forth the time and place, when and where such prisoner is to be taken for the purpose of such examination: Provided that the officer so ordered as aforesaid shall be entitled to the like conduct money and payment of expenses, and for loss of time, as upon attendance at a trial.

A5ldavits before S -

whom t o be sworn in	16. In any action where it may be necessary to obtain affidavits, declarations, or affirmations, from persons residing in foreign parts, out of ITer Majesty's dominions, the same may be sworn, declared, or affirmed before any British Ambassador, Envoy, Minister, Charge d'dffaires, or Secretary of Embassy or Legation, exercising his func- B tions in any foreign country, or before any British Conriul General,
ford@ oounbieb
Consul, Vice Consul, Acting Consul, Pro Consul, or Consular are last mentioned, such affidavits, declaritions, or affirmations, may

w-mw-c- 7

be

7 310 VICTORIA$ No. 8.

Suprme Court Act.-1867.

be made, declared, or affirmed, before any foreign local magistrate,.

or other person having authority to administer an oath there.

17. Affidavits, declarations, and affirmations, in any action, may be taken and sworn in England, Scotland, Ireland, the Isle of Man, certain other cases. A5idavite before

to be in

the Channel Islands, or any Colony, Island, Plantation, or place out of England, under the dominion of Her Majesty, before any Court, Judge, Kotary Public, or person lawfully authorized to administer oaths in such country, colony, island, plantation, or place, respec- tively; or so far as relates to the Isle of Man, and the Channel Islands, before any Commissary, Ecclesiastical Judge, or Surrogate, who at the ,time of the passing of the Act of the Parliament of the United Kingdom of Great Britain and Ireland, passed in the Session of Parliament holden in the twentieth and twentyfirst years of the present reign, chapter seventy-seven, was authorized to administer oaths i n the Isle of Man, or in the Channel Islands respectively.

18. All affidavits, declarations, or affirrnations made or taken ~f !&;~~n~e~; ;~d

under this Act shall be as valid and effectual to all intents and court.

purposes as, if the same had been made or taken before the Court

itself,

19. The Court, the Judges thereof, the Master, Registrar*, and Power to a d m i ~ ~ ~ i c r

taking affidavits under the provisions of an Act, No. 23 of 1859, or appointed by the Court to conduct any inquiry by virtue of any	Chief Clerk thereof, and all persons appointed to bc commissioners for oaths. vided that any party required to be examined, or any person called as a witness, or required, or desiring to make an affidavit, or depo- sition in m y action, shall be permittcd to make his solcmn affirma- tion or declaration, instead of being sworn, under similar circum- stances and in the like manner as a person called as a witness, or desiring to make an affidavit or deposition, would be permitted to
within the provisions of that Act. do under "The Supreme Court Procedure Act, 1855," in cases 20. Any person who shall wilfully give false evidence, or who P ~ W Y -
shall wilfully swear, affirm, or declare falsely in any affidavit, deposi- tion, affirmation, or declaration, under thc provisions hereof, shall bc deemed and taken to be guilty of perjury, and shall and may be indicted and prosecuted for such offence accordingly.

21. If any person shall forge the Seal of the Court or the ~eraons forgiog seal

signature of any Judge, Master, Registrar, Chief Clerk, or Corn- off810nJ,

or signature guilty

missioner for taking affidavits, or of any person appointed to take the examination of witnesses under any of the preceding provisions, or to conduct any inquiry directed by the said Court, or shall knowingly use, or concur in using any such counterfeit or forged seal or signature, or tender in evidence any document nith a false or counterfeit signature of such Judge, Master, Registrar, Chief Clerk, Or Commissioner for taking affidavits, or other person as aforesaid,

or

U

31" VIWORIB, No. 8.

Styreme Court Act.-1 867.

d

or with a false or counterfeit' seal, knowing the same signature or seal to be false or counterfeit, every such person shall be guilty of felony, and hall, upon conviction, be liable to be imprisoned with or without hard labox for any period not less than seven years; and whenever any such document has been admitted in evidence, the Court, or the person who has admitted the same, may at the request of any party against whom the same is so admitted in evidence, direct that the same shall be impounded and kept in the custody of some officer of the Court, or other proper person, for such period and subject to such conditions as to the said Court or person shall seem meet.

22. The Court, the Judges, the Master, and other officers of the Judge, Notary Public, Commissioner for taking affidavits, or other person before whom affidavits,declarations, and affirmations are hereby authorized to be made, which shall be attached, suspended, or sub- scribed to any such affidavit, declaration, or affirmation, or to any other document.

haicial

taken of signaturea be of

J U ~ ~ S, Commis- Cmrt shall take judicial notice of the seal or signature of any

aionere, &C,

Appeal from order of	23, In every case where, by any Act or Ordinance now or herein- after to be in force, or by the practice of the Court, jurisdiction is exercised by a Judge in Chambers, there shall be an appeal to the Court from any decision of such Judge.
Judge.
Distinction between
term and vacation	24. Every rule, decree, order, pleading, petition, matter, writ, execution, proceeding, act, business, or thing to be made, entered, instituted; ifled, give< issued, taken, transactd, done, or performed, in or by the said Court, at any time after the commencement of this Act, shall or may be made, taken, transacted, done, or performed, on any day not being Sunday, Good Friday, or Christmas Day, whether such day shall be in term time or vacation, and every such rule, decree, order, pleading, petition, matter, writ, execution, pro-
abolished.
entered, intituled, filed, given, issued, taken, transacted, done, or ceeding, act, business, or thing, as aforesaid, which shall be so made,
performed in vacation, or in any day in term time or vacation, and which according to any present law, or any practice or usage of the said Court can or ought only 10 be made, entered, intituled, filed, V given, issued, taken, transacted, done, or performed, in term time, or
as in term time, or as on any or some par&xdar day or days in term time, shall be of the like validity, force, and effect, as if the day upon which the same shall or may be so made, entered, intituled, filed, given, issued, taken, transacted, done, or performed, was actually a day in term time, and not in vacation, and the day or one of the days in term time required by any such law, practice, or usage as aforesaid.
moned,
Jurpma~bemm-	1 25, Where in any action any question of fact or issue may be directed to be tried by a Jury, and no ether course is or shall be pre- scribed for summoning a Jury, the Court may direct a writ of venire facias to be issued in the manner provided by the twenty-seventh section of the Jury Act, 1862; and all the provisions of the said

Act

31" VICTORIB, No. 8.

Supreme Court Act.-1867.

Act shall be applied and be applicable to the summoning and con- stitution of juries for the purposes of the trial of such question of fact or issue as if such Jury had been summoned for the trial of issues at the Civil Sittings of the said Court, and all the parties entitled to appear on the trial of any such question of fact or issue shall be entitled to the same rights, as to challenge or otherwise, as if such question or issue so ordered to be tried were an issue on the common law side of the Court,

26. The Court may, nothwithstanding the provisions of the last Question may be tried

preceding bection, order the trial of any such question of fact or issue at Civil Sittiags.

to be had at some one of the Civil Sittings of the Court in its com-

mon law jurisdiction.

27. The Supreme Court on the Crown side shall have the like BupremcCourttohaw

jurisdiction, power, and authority within the said Province as Her Court of similar jurisdiction to

blajesty's Court of Queen's Bench in England hath 011 the Crown Benoh on Crown side

side thereof; and the Chief Justice and Judges of the said Supreme thereof,

Court for the time being shall have the like jurisdiction, power, and authority, in the said Supreme Court, on the Crown side thereof> as the Chief Justice and the Judges of the Court of Queen's Bench have in England on the Crown side thereof; and any act which, in the said Court of Queen's Bench, on the Crown side thereof, may be done or performed by the Chief Justice thereof, may in the said Supreme Court, in the like cases, be done or per- formed by the Chief Justice thereof; and any act which may in the said Court of Queen's Bench, on thc Crown side thereof, be done or

erformed by one of the Judges thereof, may, in the said Supreme

gourt, in the like case, be done or perfornled by any Judge thercof.

28. The practice and procedure of the said Supreme Court, on the P ~ w t i c e and pro-

Crown side thereof, shall be according to tKe practice and procedure thal of , - J ~ ~ ~ ~, ~ cedure to be similar to

of Her Majesty's Court of Queen's Bench in England, on the Crown Bench.

side thereof, as existing immediately after the making of the rules, orders, and regulations made by the Chief Justice and Judges of the Court of Queen's Bench, in Hilary Term, 1844, " For the issuing, returning, and filing of writs, and other matters and things relating to the practice and gcneral business to be transacted on the Crown side of the said Court, pursuant to the Statute 6 Vict., c.

20," so far as the same may be applicable, and when the course and

procedure of the said Court of Queen's Bench, on the Crown side thereof, is not strictly applicable in consequence of the different cir- cumstances existing in the said Province, the said Supreme Court may make any special rule applying such practice to the particular case; and may by any special rule prescribe the form of any com- mission, writ, or other process or proceeding in any particular case where the said Court may consider it necessary to do so for the purpose of exercising the jurisdiction, power, and authority of the said Court, in the like manner as the jurisdiction, power, and authority of the Court of Queen's Bench, on the Crown side thereof,

is exercised in like cases,

29. The

70 316 VICTORIA$ No. 8.

&preme Court Act.-1867,

Duties of Master.	29. The Master of the said Court shall do,perform, and render all the like acts, duties, and services as are done, performed, and rendered
by the Queen's Coroner and Attorney, and the Master and Assistant
Master in the said Court of Queen's Bench on the Crown side thereof; and the practitioners of the said Court shall do, perform, and render, on the Crown side thereof, business of the like descrip- tion as is now transacted by such practitioners on the civil side of the said Court.

mqae 30. The Judges of the Supreme Court, or any two of them, may from time to time make, altcr, or vary all such rules and orders as to the process, practice, and procedure in the said Court, on the Crown side thereof, and as to the payment of fees and allowance of costs, and for the effectual execntion of this Act and the intention and objects thereof, as may seem to them necessary and proper: All rules, orders, and regulations which may be now made by the said ~ o u r i, or the Judges thereof, in any of the branches of its jurisdiction, may be made by any two of the Judges tbereof, and all such rules, orders, and regulations shall be published in the Government Gazette, and shall take effect from a date to be therein specified, and shall be laid before both Houses of Parliament within one calendar month after the making thereof, if Parliament be then sitting, or, if Parliament be not then sitting, within one calendar nionth after the commencement of the then next Session of Parlia- ment; and if either House of Parliament shall, by resolution passed within thirty-six days next after any such rules, orders, and regda- tions as aforesaid shall be laid before it, resolve that the whole or any part thereof ought not to continue in force, in that case the whole of such rules, orders, and regulations, or such part or parts thereof as may be specified in the resolution (as the case may be) shall from and after the passing of such resolution cease to Ec

binding.

Judges mey sit iu

several jurisdictions	31. It shall be lawful for the Judges of the Supreme Court, or any one of them, or any two of them, to sit and administer justice in any of the jurisdictions to the said Court belonging at one and tke same time, and particularly the said Court may sit for the trial of civil causes and issues, at the same time that the said Court is sitting as a Coart of Oyer and Terrniner and General Gaol Deli- very: Provided that all matters and questions of law, except such as are heard at the Civil Sittings and at the Criminal Sittings of the said Supreme Court, and except proceedings in Chambers, or before the Primary Judge in Equity, shall be heard and determined by at least three of the Judges of the said Court: Provided, also, that in case any one or more of the Judges of the said Court shall be absent on circuit, or shall be, or declare himself or themselves to be, interested in any matter or question of law, or shall declare that he or they cannot give a judicial decision thereon, from having acted as counsel in the suit or proceeding, or otherwise, in connection with
at one tmo.
the subject matter uf such suit or proceeding, the other Judges or
Judge may hear and determine such matter or question.

32, The

31° VVXCTORIB, Xo. 8. 71

32. The Supreme Court in all or any of its jurisdictions may hold ~ ~ ? ~ ~ ~ y ~; ; ~ k \,

its sittings in any building which may be appointed for that purpose a~ t tc	notioe.
by the Governor in Executive Council, and of the appointment of which notice shall have been pnblishcd in at least three consecutive

Go cernmen t Gazettes.

38. Every judgment debt shall carry interest at the rate of Ten Ten per cent. interoat

Pounds per centum per annum, from the time of entering up the on judgment debtr.

judgment until the same shall be satisfied, in lieu and instead of C~A-*&& f

Five Pounds per centum per annum, as provided by the Ordinance &%, I

No. 9 of 1845, 24- 1 4

I n the name and on behalf of the Queen I hereby assent to

this Act..

D, DALY, Governor.

-- - -

Adelaide : Printed by authority by W. C. Cox, Government Printer, Victoria-aquare.

' X