Supreme Court Procedure Act 1957 (NSW)

SUPREME COURT PROCEDURE ACT.

Act No. 13, 1957.

An Act to make further provision in respect of Elizabeth ii,

the powers of the Siipreme Court in certain of its jurisdictions and in.respect of the practice and procedure of that Court; for these and other purposes to amend the Common Law Procedure Act, 1899, the Supreme Court and Circuit Courts Act, 1900, the -Supreme Court Procedure Act, '1900, the Judgment Creditors’ Remedies Act, 1901, the l^quitj'' Act, 1901, the Justices Act, 1902, the Commercial Causes Act, 1903, and certain other A cts; and for purposes connected

therewith.

[Assented to, 8th April, 1957.]

T>K it enacted'by the M©.st LKeelkut Majesty, H by and with tJic advice and consent of tlic Legis lative Council and .Legislative Assembly of JSTew South Wales in Parliament a.s.sembled, and by the authority of the same, as follows :—

1,. ( 1 ) This Act may be cited a.s the “ Supr.emo Court Short title

Procedure Act, 1057.”

commence

ment.

(2)	This Act shall commeiiee on the first day of

July, one thousand nine hundred and fifty-seven.

2 . Each Act specified in the first (-olimin of the Seeor.d cit.itionof

Schedule to this Act and as amended hy suhsequent Acts, Acts'.' *

if any, and hy this Act may he cited in the manner speci

fied in the second column of that Schodide opposite the

reference to that Act in the first column.

44 Supreme Court Procedure Act.

No. 13, 1957.

Common Law Procedure Act, 1899, as

ÂiMndment amended by subsequent Acts, is amended—

No. 21, 1899.

Sec. 15.

(a)

(i) by inserting in section fifteen after the word

(Indorse-	‘ ‘ service ’ ’ where firstly occurring the words
KivicO	within such enlarged time as the Court or a Judge may order” ;

(ii) by inserting in the same section after the words “ under this Act” the words—

“ Any such order may be made although application therefor is not made until after the expiration of three days after such service.” ;

Sec. 102.	(b) by omitting from subsection one of section one by such party or his attorney of his belief that any document to the production of which he is entitled for the purpose of discovery or other wise is in the possession or power of the opposite party,” ;
of

(Discovery	hundred and two the words “ upon an affidavit
documents.)

New

sec. 184a.	eighty-four the following new section:—
Dicn or	184a. (1) Whenever in any proceedings to the garnishee that the debt sought to be attached belongs to some third person, or that any third person has a lien or charge upon it, the Judge may order such third person to appear and to state the nature and particulars of his claim upon such debt.
'jaim of
third person	obtain an attachment of debts it is suggested by
on debt.
(2) After hearing the allegations of any third person under any such order as is men tioned in subsection one of this section, and of any other person who by the same or any sub sequent order is ordered by the Judge to appear, or in case of such third person not appearing when ordered, the Judge may order execution to issue as provided in section one

hundred

Supreme Court Procedure *Act.

hundred and ciglity-tliree of this Act, or may No. 13, 1957.

order any issue or question arising to be tried

or determined, and may bar the claim of such

third person or make such other order as he may

think lit, upon such terms, iu all cases, with

respect to the lien or eharge (if any) of such

third person, and to costs, as the Judge shall

think just and reasonable.

(d)

by omitting section two hundred and twenty- Substituted iiig section:—

228. Upon a finding for the claimant, judg- Judgment

:m!ent may be signed and execution issue for the

recovery of the possession of the property or claimant,

such part thereof as the jury finds Ihe claimant

entitled to, and for costs, a t such time as may

be prescribed and iu the maimer prescribed. '

(e) (i) by omitting from subsection three of section See. 2a«.

two hundred and sixty-eight the words “ or

before the Colonial Parliament at any time be made

before the commencement of the operation judges.)

of any such rule” ;

(ii) by■

inserting next after .subsection three of

tlie same section the following' now sub

section :—

(3a) All .general rules and orders, rules, orders or regulations made pursuant to the foregoing provisions of this section and all rules made pursuant to section two hundred and sixty-six of this Act shall—-

(a) be published in the Gazette;

(1)) hike effect from the date of publi cation or from a later date to be specified in the general rules and orders, rides, orders or regula tions; and

(c)

46 Supreme Court Procedure Act.

No. 13, 1957.

(c)

be laid before botli Houses of Parliament 'within fourteen sitting days after publication if Parlia ment is in session, and if not, then within fourteen sitting days after the commencement of the next session.

If either House of Parliament passes a resolution of which notice has been given at any time witliin fifteen sitting days after the general rules and orders, rules, orders or regulations have been laid before such House disallowing any general rule or order, or rule, order or regulation, or part thereof, such general rule or order, or rule, order or regulation, or part shall thereupon cease to have effect.

Amendment

of Act

4 . The Supreme Court and Circuit Courts Act, 1900,

No. 35,

as amended by subsequent Acts, is amended—

1900. (a) (i) by omitting the proviso to subsection one of

Sec. 9.	section nine;
(Puisne

Judges.)

(ii) by omitting subsection four of the same

■

section;

Substituted,

(b) by omitting section twenty and by inserting in

sec. 20.

lieu thereof the following section;—

Powers of

20. (1) The Court may be held by one Judge

Court may	alone for the disposal of applications for a rule
be exercised
by single	or order nisi for prohibition, mandamus, or
Judge in	certiorari notwithstanding that it may be term
certain	time, or that the Court held before two or more Judges may he at the same time sitting in banco.

Nothing in this subsection—

(a)	authorises the Court to be held by one Judge alone for the purpose of exercis ing the powers and jurisdiction of the Court on the return of a rule or order nisi for prohibition, mandamus or certiorari; or
(b)	affects the construction of subsection two of this section.

( 2)

Supreme Court Procedure Âct.

(2)	The powers and jurisdietion of

Court on the return otf a rule or order nisi for prohibition, mandamus or certiorari to make absolute, discharge, or make any order what soever in respect of, the rule or order nisi (whether.made by the Court or a Judge) may be exercised by one Judge alone—

(a)	at any time when the Court is not sitting in banco;
(b)	in cases of exigency when the Court is sitting in banco.

(S') Any person aggrieved by any decision or detennination by one Judge alone made -pursuant to subsection one or two of this section may appeal therefrom to the Court. Any such appeal shall be in accordance with rules of court.

(A) The Judges or any five of them may iby rules of court authorise the exercise (subject tto those rules) by a Judge, in vacation or in any case of exigency, of any power which can •xmly under ordinary circumstances be-exercised by the Court.

The power to make rules of court conferred by this subsection does .not include power ito make .Tiiles of court with-respect to—

(a)	applications ior rules or orders nisi -for prohibition, mandamus oi- certio rari ;
(b)	the exercise in the circumstanoes men tioned in subsection two of this -section •of the, powers and jurisdictioneonferred by that subsection upon -one -.Judge alone.

(((ĵ Xi) :by inserting in-section forty after:the word See. 40.

“ shall” the words “ , subject'to sitbsection (Rulesto two of this section,”:; oflaw”)'*

(ii) ■

48 Supreme Court Procedure Act.

Vo. 13, 1957.	(ii)	by inserting at the end of the same section
the following new subsection;—
(2) All rules and orders so made and all rules made under section twenty of this Act shall—

(a) be published in the Gazette;

(h)	take effect from the date of publi cation or from a later date to be specified in the rules and orders or rules; and
(c)	be laid before both Houses of Par liament within fourteen sitting days after publication if Parliament is in session, and if not, then within, fourteen sitting days after the com mencement of the next session.

If cither House of Parliament passes a reso lution of which notice has been given at any time within fifteen sitting days after the rules and orders or rules have been laid before such House disallowing any rule or order or part thereof such rule or order or part shall there upon cease to have effect.

Further

amendment	5, (1) The Common Law Procedure Act, 1899, as
of Act No.

21, 1899.	amended by suhsequent Acts, is further amended by
Substituted	omitting section ninety-eight and by inserting in lieu
sec. 98.
thereof the following section:—
Extension

of power to	98. (1) Any such equitable plea or equitable
plead

equitable	replication may he pleaded notwithstanding that
plea or
replication;	upon the facts pleaded the relief on equitable grounds
transfer of
certain	would not he an absolute, perpetual and uncondi
actions into
equity	tional injunction, hut if upon the facts pleaded that
jurisdiction.	relief would not be such an injunction, the Court or Judge shall make an order that the action be transferred into the jurisdiction of the Court in equity.
The Court or the Judge when making the order may impose such terms as to costs and otherwise as to the Court or Judge seems reasonable.

( 2 )

Supreme Court Procedure Act.

(2) W liere an order is made under subsection No. 13, 1957.

one of this section the whole record o f the action

shall be transferred into the jurisdiction of the Court

in equity.

(3) After an action has been transferred into the jurisdiction of the Court in equity under this section—■

(a)	any Judge exercising that jurisdiction may,

from time to time, make such orders as he

considers necessary relating to amend-

ments, the filing of fresh pleadings, the settling of issues for trial, or otherwise to enable the action to be disposed of in that jurisdiction;

(b)

the action shall, subject to paragraph (a) of this subsection, be disposed of according to the practice and procedure of the Court in equity; and

(c)

the Court in equity may make such decree, declaration or order as appears just and may in addition thereto or in substitution therefor direct judgment to be entered on its verdict or finding and for costs in the manner prescribed and such a judgment so entered shall have the like force and eJ’fect in all respects as the signing of judgment in a Court of law and execution may issue thereon in the manner prescribed.

In so far as the costs of the proceedings before transfer have not been dealt with under subsection one of this section, the Court in equity may deal with those costs.

(2) The Equity Act, 1901, as amended by subse- Amendment

quent Acts, is amended—

24,l90U°’

(a) (i) by omitting from section eight the words See. 8. “ any proceeding before i t” and by insert- (Powerto

ing in lieu thereof the words “ any suit or

proceeding before it or has to be decided	’
in any action transferred into its jurisdic tion under section ninety-eight of the Common Law Procedure Act, 1899-1957,” ;

(ii)

Supreme Court Procedure Act.

«o.. 13, 1957.

(ii)

hy omitting from ‘the same section the words “ no suit in equity” and by inserting I in lieu thereof the ivords “ no -suit or proceeding in equity and no taction so transferred” ;

New sec. 8A.	(b)	by . inserting next after section ei^t the fol lowing new section:—
of certain

Transfer

€ a . (1) -If it appears to the Court at any

suits, &c.,	-stage of any suit or proceeding hrthe Court that
into common
law	'the rCourt has no jurisdiction “to deal with the
jurisdiction.	subject matter of the suit or proceeding and that'the appropriate remedy in respect thereof ■lies in the Common Law jurisdiction of the Supremo Court, the Court shall make an order ‘thai the suit or proceeding be transferred into 'that jurisdiction.
'The Court when maldng the order may im pose such terms as to costs and otherwise as to ftiie (Court seems reasonable.
(2) "Where an .order is made under sub section one of this section the whole record of the suit or proceeding shall he transferred into i,the Common Law jurisdiction .of the Supreme 'Coruft.
(5) jAfter a suit or pTOceeding has been •itransferred into the' Common Law jurisdiction Qfftthe Supreme'Court undei' this section—

''(«) any tJudge exercising that jurisdiction may, 'from time to ‘time, mate such orders as he considers necessary-relat ing to amendments, the filing ctf fresh -pleadings, the settling of issues for trial, or otherwise to enable the suit or proceeding to be disposed of in that jurisdiction; and

(b)	the tsuit or proceeding shall, subject to paraigraph (a) of this subsection, be disposed of according to the practice and procedure of tlie Supreme Court at Common Law.

Supreme Court Procedure Act.

In so far as tlie costs of the proceedings No. 13, 1957.

before transfer have not been dealt with under subsection one of this section, the Judge presid ing at the trial or the Supreme Court at Common Law may make such order as to those costs as may be just.

(c)

by inserting at the end of section nine the follow- scc. 9.

ing new paragraph:—

(Powerto

•

m 1

Court to

Nothing 111 this section shall be construed as award

limiting the operation of any other section

this Act.

cases.)

(d) (i). by omitting from subsection one of section scc,39.

thirty-nine the words “ right or claim,” and (Set-off

by inserting in lieu thereof the words and

counter-

“ equitable or legal right or claim, whether claim.)

or not connected with the claim of the

plaintiff, ’ ’;

(ii) by inserting in subsection two of the same section after the words “ ought not” the words “ in the circumstances of the case” ;

(e)	by omitting subsection three of section ninety- four and by inserting in lieu thereof the follow ing subsection:—

(3) All rules made under this Act shall—

(a) be published in the Gazette;

(b)	take effect from the date of publica tion or from a later date to be specified in the rules; and
(c)	be laid before both Houses of Parlia ment within fourteen sitting days after publication if Parliament is in session, and if not, then within fourteen sitting days after the commencement of the next session.

If either House of Parliament passes a resolu tion of which notice has been given at any time within fifteen sitting days after the rules have been laid before such House disallowing any rule or part thereof such rule or part shall thereupon cease to have effect.

'Supreme Court Procedure Act.

No. 13,'1967.

'6 . Tito Justices Act, 1902, as amended by subsequent

Amendment

’Acts, is amended—

of Act No.

27,1902.

Sec. 101.

(a) (i) by iusertin^i; next after -subsection one of

(Party	section one hundred and one tiie following
dissatisfied	new subsection:—•
with
tion of

determina

(;1a ) ITlie application need not be served

Justices on	upon the .Justice or Justices per-soually, but
point of
law may	shall be deemed to liave been properly
apply to	made if served upon the clerk of the court
have a case
stated for	at Avliicli the determination of the Justice
opinion	or Justices was made.

of Supreme

Court;)

(ii)

by inserting at the end of the same section the fellowing new subsection:—•

{?>) Written notice that application lias been made for a case to be-stated and signed pursuant to subsection one of tliis section shall be ^iven by the appellant to the respondent within the time prescribed by rules of the Supreme Court.

Sec. 102.	(b) by omitting from subsection one of section one
(Before

case is	Imndrcd and two the words “ Berfore any such
stated	case is-stated and delivered to the appellant, lie
appellant
to give	shall enter into a recognizance” and by insert
security.)	ing in lieu thereof the Avords “ .The appellant shall, witliin twenty-eight days after the deter mination appealed from, enter into a recog nizance ’ ’;

Substituted

(e) by omitting section one hundred and five and

sec. 105.

by inserting in lieu thereof the following

section:—•

Appellant	105. When the appellant has received the case
to transmit

case to	or has been notified in writing' that it has been
Prothono-
tary and	stated and signed and is available, he shall—

give notice.

(a)

within sudi period thereafter as may ■be prescribed by rules of the Supreme ■ Court transmit such case to the Protho- notary of the Supreme Court; and

(b)

Supreme Court Procedure Act.

(b)

within such period and in such manner No. ts, 1957. Supreme Court serve the respondent with such number of copies of the case as may be jjrescribed by those rules.

(d) (i) by omitting from subsection two of section See. 107.

one hundred and seven the words “ Supreme (Powersof Court” and by inserting in lieu thereof the bo exercised words “ Judges of the Supreme Court or in

Chambers.)

any live ot them ,

(ii) by inserting at the end of the same section the following new subsection:—

(3)	Eules and orders made under this

section shall—

(a) be published in the Gazette;

(b)	take etfect from the date of publi cation or from a later date to be specified in the rules and orders; and
(c)	be laid before both Houses of Parliament within fourteen sitting days after publication if Parlia ment is in session, and if not, then Avithin fourteen sitting days after the commencement of the next session.

If either House of Parliament passes a resolution of which notice has been given at any time within fifteen sitting days after the rules and orders have been laid before such House disallowing any rule or order or part thereof, such rule or order or part shall thereupon cease to have effect.

(e) (i) by omitting from subsection one of section Scc. 112.

one hundred and twelve the words “ apply— (Any person

aggrieved b j

(a)	in all cases to the Supreme Couid, oro7der°̂ or, in vacation, to a Judge thereof; ma^yapply*

(b)	prohibition.)

Supreme iCaort Pmeedne Vket.

<ffo. 13, 1937.

(b)

in tlic foUowin'g' cases, Avliethor in term or in vacation, to a Judge—

(i)	■where imprisonment bas been directed;

(ii) ■where the fine imposed, or the amount ordered to be ]iaid, or the value of the inatt-er adjudicated upon does not exceed Ihirty ‘pounds,”

and	inserting in lieu'tiieixiof the words

‘ ‘apply to the •Supreme ‘Gourt” ;

(ii) by inserting at thc'end of subsection five of the same section the following new iiara- grapli

Nothing in this subsection—^

(a)	authorises the Supreme Court to be held by one Judge alone for the purpose of exorcising the powers and jurisdiction of the Court on the return of any rule or order granted or made under this section;
(b)	affects the'construction of sections one hundred and fourteen and one hundred and fifteen of this Act;

(iii) by omitting subsection six of the same section;

S'liltsl Itnted

sec. 114.

(f) by omitting section one lumdred and fourteen and b.y inserting in lien thereof the following -section:—

Before	114. Subject to any I’ules of eonrt made by the them, any rule or order granted or made by the Court or a Judge under section one lumdred and twelve of this Act may be made returnable before the Court or any sncli Judge.
whom rule
to be	Judges of the Supreme Court or any five of
returnable.

(g)

Supreme Court Procedure Act.

(g) by omitting section one hundred and sixteen and by inserting in lieu thereof the following substituted

13> 1957.

section:—

sec. 116.

116. (1) Where so provided by rules of Certain

court made by the Judges of the Supreme Court r̂Us^ade or any five of them, any person aggrieved hy by a Judge any decision or determination by one Judge “ yfewed

alone made pursuant to sections one hundred by the

and fourteen and one hundred and fifteen of

this Act may appeal therefrom to the Court.

Any such appeal shall be in accordance with

rules of court made by the Judges of the

Supreme Court or any five of them.

(2) A Judge before whom any rule or order is made returnable pursuant to section one hundred and fourteen of this Act may, at any stage of the proceedings, refer the matter to the Court to be determined.

(h)	by inserting next after section one hundred and New seventeen the following new section:—

117a. The provisions of subsection three of PubUcation,

section one hundred and seven of this Act apply

to and in respect of rules of court made under disallowance

this Division of this Part.

of rules.

(i) (i) by inserting next after subsection two of See. 122.

section one hundred and twenty-two the (̂ Appeaito

following new subsection :— ■

Sessions.)

(2a) Where but for the provisions of this

subsection an appeal may not proceed by

reason only that—

(a)	the appellant was not served with notice of the time and place of hearing of the appeal; and

(b) the Court is not satisfied that—

(i) the appellant had know ledge of such time and place; or

(ii)

m	Supr»ne>GMift PraieedHre Act.

No.il3,’f9S7.

(ii)

Tvliere tiie .Court is satis fied thafehohad siich know ledge, lie would not be pre judiced by the non-service,

'the • appeal ■ may iievertlieiefts proceed if the ' Oourt is satisfied that'the appellant is evad- ling »ervtee .of the .iiotioe or oannot, after

■	diligent -search and linqniry, be found.

(ii) by inserting in subsection‘four of the same section after the word “ hearing'” the words “ or,-where a later address ha« been noti fied'bj'’ any sudi person or his attorney to the Clerk of'the'Peace, to the'last address so. notified” .

Amendment

of Act Is'o.	7. The Commercial Canses Act, 1903, is amended—
19, 1903.
Sec. 3.

(Conimeroial

(a) by omitting from section tbree tlie word

causes.)

“ inclndo” and 'lwdnser'ting in'lien thereof the

woi-d ‘‘mean”'’.

Sec.f).	(b) (i) by inserting at tile e«d df‘parag-rapb (d) of
(llirec-

t iuius.)

section six ‘ the woi'ds—

“ or lists of.documents to be exchanged

and inspection allowed” ;

'(ii) by omitting j^aragrapli (g) of ’the same •section and'by ■inserting in'lieu thereof the following paragmph;—

(g)	Older the trial to. be either with or without a jury or that special issues he tried by a jury.

S er.

< Rules of

Court.)

“ three” and by inserting in lieu thereof

the word “ five” ;

(ii)

by inserting at the end of the same section (t2) All .such rules of court shall—

(a) be pul)lislied in tlie Gazette;

( f i )

^ipreouXaiitt procedure. Act.

.^7

v(b) take effect from the tiate of p a b - 3̂,. m?.

licatioii' or from a latert date to be

-specified iii the r,ules; aml

(c)	be laid before both ‘Houses of

Parliament -witliin fourteen sitting ■ days after ipublication if Parlia-

-	ment is :in sesskm, laMid if not, then within fourteen sitting days . after ithe eeoiiiaBoncemeiit of the next session.

J f either House.of ParJiament passes a resolution of which iiotiee has been given at any time within fifteen sitting days after tlie muies have been iaidi before such House disaHowinig îany :Tnile.or ijaart thereof, such •rale or:paTt-Hbail-.tlteroiip:«n cease to have

.effieet.

^ .-Phe Hatiimouiah Gaioses Arct d3809, ias.ai»iejudod by AmoiKiiiirnt

■Rffibsequent Aets,:is amended by .oaiaittkig «ubsection four

14, 18')!).

ofsoetioai nbiety-oue a*id byimserUng ki lien tiicreol' the

Scc. 91.

following subsection:—

(Power to

uinke rules >

(4) All nVles made under this sectioai shall—^

(a) bo published in the Gazette;

(b)	take effect from i the date of iputoldeation or ! from aia ter dateito be (Siiieoifiod kn tJic nules; and
(c)	be laid before both Houses of Parliament Avithin fourteen sitting days after jinlilica- tion if Parliament is in session, and if not, then Avitliin fourteen sitting days after the commencement of the next session.

;If‘either House, of Parliament passes a resolution of Avhicii notice has been .given a t arty tune Avitliki fifteen sitting days after dhe rules have been laid before s^idi House disallowing .any rule or ipart thereof, such rule or jmrt shall thereupon.«oase to have effect.

J).

58 Supreme Court Procedure Act.

No. 13, 1957. 9 ̂ The Supreme Court Procedure Act, 1900, as Amendment amended by subsequent Acts, is amended by omitting

section seventeen and by inserting in lieu thereof the

Substituted following section:—

seo. 17.

Eules to

be published

17. All rules of court made under the powers

in Gazette	herein contained shall—	•	-
and laid
before

Parliament,

(a) be published in the Gazette;

&c.

(b)	take effect from the date of publication or from a later date to be specified in the rules; and
(c)	be laid before both Houses of Parliament within fourteen sitting days after publica tion if Parliament is in session, and if not, then within fourteen sitting days after the commencement of the next session.

If either House of Parliament passes a resolution of which notice has been given at any time within fifteen sitting days after the rules have been laid before such House disallowing any rule or part thereof, such rule or part shall thereupon cease to have effect.

Amendment

10. The Jury Act, 1912, as amended by subsequent

of Act	Acts, is amended by inserting in subsection two of section
No. 31,
1912.	fifty-five after the word “ capital” the words “ or
See. 55.	murder” .
(Challenge in criminal cases.)

Amendment	11. The Crimes Act, 1900, as amended by subsequent
of Act No.

40, 1900.	Acts, is amended by omitting from subsection three of
Sec. 568,
(Jurisdic	section five hundred and sixty-eight the words “ not
tion, &c., of	punishable with death,” and by inserting in lieu thereof
Courts of
Quarter	the words “ (other than a crime or misdemeanour which
Sessions.)
is punishable with death or avM cIi was so punishable
immediately before the commencement of the Crimes (Amendment) Act, 1955),” .

J^rcrae JCoart ’Procedure Act.

12. The I.omd .hkI Viiluation Caurt 'Act, 'Iftil, its-^o.13, 1957.

(ainenlled hy suhee ĵitteut AotSjiie iaasaeiuded—

Amendment

of Act No.

10 ,19L>1.

(a) (i) hy inserting in suhseetioii' three of section

Scc. 4.

(Constitu

four after the Tvmxl ‘‘powers” the word	tion of
“ , iumiunities ” ;	J.and and Valuation

i(ii) >i»y inserting’ in-sirhsefition (o.\) of the same -section after the word ‘ipowers” the word	Court and
of jiidfre.)
appointment

“ , immunities” ;

(iii) hy omitting the proviso to paragraph (a) of subsection five of the same section ;

(iv) by omitting the proviso to paragraph (a) of subsecfcionosFx- of ijlie-same section;

(h) by inserting next after section nine the follow ing new section:—•	New
sec. 9a.

9a. (1) The court may in every case obtain the assistance of conveyancing emmsei, -account	Assistance
of scientific
persons.
ants, engineers, actuaries, or other scientific	cf. Act. No.
2 t, 1901,
persons the better to enable it to determine any	s. 7.
raa'tter at issue in any proceeding before it and .may act upon the-certificate of any such person.
(2) The allowance in respect of foes :fo 'Such peusems shall be regulated hy the
1‘eg'istnar, subject to an appeal to tlie court.

The Acts (.as amended by siibscf|uent Acts, if Amendment

any) &i>)ecified in tJae first and second columns of the First °pf,4fmd ■ Sohednie to this Act are amended as respectively spi'ci-in Fir.st

ffiefl imthe third cohmm of'that Schedule.

Si'iicduie.

X 4. (T) "Rules of caurt, general rules and orders. Savings,

i’ules, orders or regnlatioiis naade or promulgated liy the Supreme Court.of New Soaith AVales or any Judge or Judges thereof bj ̂ virtue.of any iiower howsoever con ferred on such Supix'me Cxmrt, Judge or iJiulges, and ill foree,«at the •*xmnneai«eaiieiit of this Act, shall not bo ■«fl'-eeted in’ the repeal a>nd siibstilntion hy this Act of any

11-rovisioii under whielr they were made, or hy aip' altera

tion in the number of ‘Juidgos authorised to make them, or hy the provis-ioiis of this Act rexpdring them to be

published

60 Supreme Court Procedure Act.

No. 13, 1957. published in the Gazette and laid before both Houses of

Parliament and making them subject to disallowance by resolution of either House of Parliament but may be amended, repealed or replaced by rules of court, general rules and orders, rules, orders or regulations, as the case may be, lawfully made after that commencement.

(2) Unless the contrary intention appears, the repeal of any enactment by this Act shall not revive anything not in force or existing at the time at which the repeal takes etfect.

Sec. 13.

FIRST SCHEDULE.

Reference	Short Title.	Amendment.
to Act.

No. 21,1899

Section 1—

Omit the matter relating to

Part XV.

Section 4, subsection (1)—

(a)	Insert after tbe words “ juris diction of the Court ” the words “ or if the defendant is a cor poration residing or incorpor ated or registered within the jurisdiction of the Court or if the defendant is a corporation registered under Part VI of the Companies Act, 1936, as amended by subsequent Acts”.
(b)	Omit the words “ Form No. 1 contained in the Second Schedule to this Act ” and insert in lieu thereof the words “ form prescribed ”.

Section 4, subsection (2)—

Omit the subsection.

Section 10—•

Omit the words “ Form No. 2 contained in the Second Schedule hereto, or to the like effect ” and insert in lieu thereof the words “ the form prescribed ”.

FIRST

Supreme’ Gmirt Procedure 'Act.

FIRST SeHEDUl/E—

<No. 13, 49S7.

Reference

to Act.

■Short Title.

Amendment,

■Section ] ] —

Omit the word “ six ” and insert in lieu thereof the word “ twelve

Section 12, subsection (1)—•

(a)

Omit the word “ eix ” and insert

lieu

thereof

the

word

“ twelve ”,

(f)) Omit the words “ including the

day of such date ”,

Section 12, subsection (2)—

{a) Omit the woid “ six ” and insert in lieu thereof the v̂ord “ twelve ”,

{!>) Omit the words “ hy being marked hy the proper offic(!r with the date of such renewal upon delivery to him by the plaintiff or his attorney of a praecipe in suchi form as befoi-e the commencement of the Common Law Procedure Act of 1853 was required to be delivered upon the obtaining of an alias writ ” and insert in lieu thereof the words “ by being marked as proscribed ”,

Section 14—

Omit the words	by the propiw
officer ”,

Sections 17, 18 and 19—

Omit these sections and insert in lieu thereof the following seo tions

17. The service of a writ of Mode of Bummons shall, wherever it is service, practicable, be personal, but whei e

prompt personal service cannot be effected substituted service may he effected as prescribed.

FIRST

Supreme Court Procedure Act.

No. 13, 1957.

FIEST SCHEDULE—

Reference	Short Title.	Amendment.
to Act.

Sections 17, 18 and 19—continued.

Actions

against

18. (1) In any action against

defendants	a defendant who—•
not within	(a) being a corporation is not

jurisdiction;

resident incorporated or reg istered within the jurisdiction of the Court and is not registered under Part VI of the Companies Act, 1936, as amended by subsequent Acts; or

(b)	being any other person is not resident within the jurisdiction of the Court,

the plaintiff may issue a writ of summons in the form prescribed.

(2) Either the writ of summons or a notice thereof in the form prescribed shall be served upon the defendant as may be pre scribed.

(3) Until otherwise prescribed

the writ of summons shall be

served in the following cases :—

(a)	Where the writ of summons may be served under the pro visions of the Service and Execution of Process Act 1901 (as amended by subsequent Acts) of the Parliament of the Commonwealth.
(b)	WTiere the defendant is a British subject or being a corporation is incorporated in the United Kingdom or in Australia or in any of the other realms and territories of Her Majesty the Queen.
(c)	Where the defendant is in the United Kingdom or in Australia or in any of the other realms and territories of Her Majesty the Queen.

FIEST

Supreme Court Procedure Act.

'FIRST SCHBDDL&—

i(o.il3,i.l957.

Kcference

to Act.

Short Title.

Amendment.

Sections 17,18 and 19—continued.

(4)	If the defendant does not

appear to the tvrit of summons (within the time prescribed, a fjudge, upon being satisfied—•

(a)	that there is a cause of action which arose within the juris diction, or in respect of the breach of a contract made within the jurisdiction; and
(b)	that service of the writ or notice thereof, as the case may be, was duly effected or that the writ or the notice thereof came to the defendant’s knowledge,

may, if he thinks fit, by order, permit the plaintiff to proceed ito sign final or interlocutory (judgment in such manner and eubject to such conditions as may be prescribed or as he in aU the circumstances may deem fit.

Section 20—

Insert after the word “ by” the words “ or udder ”,

Section 21—

iOmit the words “ I f either of the IForms of writ of summons Nos. 1, )3, and 4, contained in the Seconci Schedule hereto,” and insert in lieu thereof the words “ If one of the prescribed, forms of writ of summons ”.

Section 23—

Dmit the section.

Section 24, subsection (1)—

(a)	Insert after the .worcl “ Court ” the words “ or being a corpora tion is resident or incorporated or registered within that juris diction or is registered under Part VI of the Companies Act, 1936, as amended by subsequent Acts ”.

-F I R S T

64 Supreme Court Procedure Act.

No, 13,_1957.

FIRST SCHEDULE—cowimM6(Z.

Reference

to Act.

Short Title.

Amendment.

Section 24, subsection (1)—cont.

(b)	Omit tbe words “ Form No. 5 contained in tbe Second Schedule hereto, or to tbe like effect ” and insert in lieu thereof tbe words “ form prescribed

Section 25, subsection (1)—

Omit tbe words “ Form No. 6 contained in tbe Second Schedule hereto ” and insert in beu thereof tbe words “ form prescribed

Section 29—•

Omit tbe section and insert in lieu thereof tbe following section :—^

Mode of

29. Appearance to a writ of

appearance.

summons or under the authority of this Act shall be entered by filing a notice of appearance in the form and manner prescribed.

Sections 32 and 33—

Omit the sections.

Section 51, subsection (1)—•

Insert at the end thereof the words

“ in the manner prescribed ”.

Section 51, subsections (2) and (3)—

Omit the subsections.

Section 69—■

After the word “ shall ” insert the words “ , unless a Judge otherwise orders,”.

Sections 70 and 71—

Omit the sections and insert in lieu thereof the following section :—

Commence	70. Every declaration shall
ment and

conclusion of	commence and conclude in the
declaration.	forms prescribed.

Section 73—

Omit the section and insert in lieu thereof the following section

Time for

pleading to

73. The defendant shall plead to

declaration.

the plaintiff’s declaration within the time and in the manner prescribed.

Section 76—

Omit the section.

Section 81—

Omit the section.

FIRST

Supreme Court Procedure Act.

FIEST SCHEDULE—con«»iMe(i.

No. 13, 1957.

Eeferenoe

to Act.

Short Title.

Amendment.

Section 88, subsection (1)—

Omit the words “ Form No. 15 contained in the Second Schedule hereto, or to the like effect ” and insert in lieu thereof the words “ form prescribed ”.

Section 100, subsection (1)—

Omit the words “ Form No. 16 contained in the Second Schedule hereto, or to the like effect,” and insert in hen thereof the words “ form prescribed ”.

Section 100, subsection (3)—

Omit the words “ Form No. 17 contained in the said Schedule, or to the hke effect” and insert in lieu thereof the words “ form prescribed ”.

Section 104, subsection (1)—

Omit the words “ , or by so many and such of the persons summoned as jurors for the trial as may be thought desirable,”.

Sections 121 to 128 inclusive—

Omit the sections.

Section 129, subsection (1)—

Omit the words “ it shall not be necessary to issue a writ of inquiry, but ”.

Section 129, subsection (2)—

Omit “ in the same manner as before a jury upon a writ of inquiry ”.

Section 133—

Omit the section and insert in lieu thereof the following section :—

133. A party in whose favour a gjgning

verdict has been given, a nonsuit judgment,

granted or a judgment directed

to be entered may sign judgment

in the manner and time pre

scribed.

91443—3

FIEST

§ i	SuprMie CcHHt Pr-0ce<k»e

N«. .13, 195,7.

FIEST SCHE3>UIiE-if««mMffl .̂

Reference

to Act.

Sliorb Title.

Ainandmont.

Action 134—

Omit the section and insert in Eeu thereof the following section:—

Execution

after

134. A party in whose favour

jndgment

judgment has been signed may

signed.

issue execution thereon unless

a Judge otherwise orders:

Provided that where ten years have elapsed since judgment was signed or any change has taken place by death or otherwise in the parties entitled or liable to execution, execution shall not issue without the leave of a Judge. The party alleging himself to be entitled to execution may apply for such leave in the manner prescribed.

Part XV—

Omit the Part.

Section 156—

Omit the words “ , so as such judgment be entered within two terms after such verdict”.

Section 157, subsedtions (3), (4)

and (5)—

Omit the subsections and insert

in lieu thereof 'the following

subsection:—

(3) In any such case the action may be maintained by the exec utor or administrator mentioned in subsection one of this section or against the executor or admin istrator mentioned in subsection two of this section or by the firstmentioned executor or ad ministrator against the second- mentioned executor or adminis trator, as the case may be, upon the filing of a suggestion of the death of the plaintiff or defendant or both, as the case may be, and

FIEST

Supreme Court Procedure Act.

FIRST SCHEDULE—co;!n'rtMc<Z.

No. 13, 1957.

Keforenco

to Act.

Short Title.

Amendment.

Section ]57, sul.'scctious (3), (4)

and (5)—continued.

representation. A copy of any

suggestion so filed shall be served

upon all other parties to the

action and the truth of the

suggestion shall not be in issue

unless notice of such issue is given

to the person filing the suggestion

within fourteen days of service

of such copy or within such time

as may be prescribed.

Section 159, subsection (2)—

Omit the words “ or writ of revivor pursuant to this Act ”.

Section 184, subsection (1)—■

Omit the word “ writ ” and insert in lieu thereof the word “ summons

Section 184, subsection (2)—

Omit the subsection and insert in lieu thereof the following subsection;—

(2) Such summons shall be issued, and the procedure thereon shall be, in the manner prescribed.

Section 186—

Omit the section.

Section 210, subsection (1)—

(a)	Omit the words “ Form No. 21 contained in the Second Schedule hereto, or to the like effect ” and insert in lieu thereof the words “ form prescribed ”.

[b) Omit the words “ sixteen days ” and insert in lieu thereof the words “ the time prescribed

Section 210, subsection (2)—

Omit the word “ three ” and insert in lieu thereof the word “ twelve ”.

FIRST

€8	S^prente Court Procedure Act.

13, 1957.

f i r s t

SCHBUULE—

Keference

to Act.

Short Title.

Amendment.

Section 212—

Omit the section and insert in lieu thereof the following section :—

Service of

212. The writ shall, wherever

writ.

practicable, be served personally on the persons named therein but where prompt personal service cannot be effected substituted service may be effected in the manner prescribed or in such manner as may Ibe provided for the purpose by any other Act.

Section 219—

(a)	Insert after the word “ judg ment ” where ifirstly occurring the words “ in the form pre scribed ”.
(b)	Omit the words “ Such judg ment if lor all may be in the Form No. 22 contained in the Second Schedille hereto, or to the like effect, and if for part may be in the Form No. 23 contained in the said Schedule, or to the like effect.”

Section 220, subsection (2)—

Omit the subsection and insert in heu thereof the following subsection:—

(2) Such issue may be in the

form prescribed.

Section 221—

Omit the words “ used before the commencement of the Common Law Procedure Act of 1853 ” and insert in lieu thereof the word “ prescribed ”.

Section 223—

Omit the section.

FIEST

Supreme Court Procedure Act.

FIEST SCHEDULE—continued.

No. 13, 1957.

Reference

to Act.

Short Title.

Amendment.

Section 229—

Omit the words “ within sucli time as the Court or Judge before whom the cause is tried shall order, and if no such order be made then on the fifth day in term after the verdict or within fourteen days after such verdict whichever shall first happen ” and insert in lieu thereof the words “ at such time as may he pre scribed and in the manner prescribed ” .

Section 243—

Omit the section and insert in lieu thereof the following section :—-

243. The claimant may at any Discontin

time discontinue the action as to nance of

one or more of the defendants

in the manner prescribed.

Section 245—

Omit the section and insert in lieu thereof the following section :—

245. Where an appearance has Judgment

been entered and the claimant omits to set the action down for trial in the manner and within the notice,

time prescribed the defendant may give him such notice as may be prescribed to set the action down within a time prescribed for this j)urj)Ose and if the claim ant fails so to do the defendant may suggest such failure and sign judgment in the manner pre scribed.

Section 24fi—

Omit the words “ Form Xo. 28 contained in the Second SchedUe hereto, or to the like effect ” and insert in lieu thereof the words “ form prescribed ”.

FIEST

Supreme Court Procedure Act.

No. 13, 1957.

FIRST 8GllEJ)\JLli~conlinu&l.

Heferrnce	fcjhort Title.	Amendment.
to Act.

Sections 252, 253 and 254—

Omit tJic sections and insert in lieu thereof the following sections :—

Application

252. Every application for an

lor order nisi	order nisi for a writ of habeas
for writ of	corpus shall be made to a Judge.
habeas	Such application may be made ex
corpus.	parte in the manner prescribed.

Keturn of

253. (1) Every order nisi for a

order nisi.	writ of habeas corpus shall be returnable before a Judge sitting in public chambers whether in Term or not unless the Judge considers that it should be returnable before the Full Court.
(2) On the return of such order the Judge lor the Court may disj)ose of the case as the circum stances appear to require and may make such order as to costs as the Judge or Court thinks fit.
Appeal.	254. Any order made by a Judge under seotion two hundred and fifty-two or two hundred and fifty-three of this Act shall be subject to appeal to the Full Court within the same time and in the same manner as prescribed for motions for a new trial.

Section 263—

Omit the section.

Bection 266—

Omit the words “ The lowest scale shall extend to all cases not exceeding fifty iiounds, the second scale to all cases above fifty and not exceeding one hundred pounds, and the highest scale to all other cases.”

Bection 268, siib.sections (1) and (2)— After the words “ The Judges ” insert the words “ or any five of them ”.

FIRST

Supreme Court Procedure Act.

FIRST

continued.

No. 18̂ 1967.

Reference

to Act.

Short Title.

Amendment.

Sections 269 and 270—

Omit the sections.

Second Schedule—

Omit the Schedule.

No. 29, 1902

Arbitration Act,

Section 10—

1902. Insert after the words “ submission may ” the words “ , by leave of a Judge,’’.

No. 24, 1902

Arrest on Mesne

Section 5, paragraph (6)—

Process	Act,	Omit the word “ twenty ” and
1902.	insert in lieu thereof the words “ two hundred ”.

Section 11—

Omit the section and insert in Ueu thereof the following section:—

11. (1) Any person in respect of Application

whom a special order is made under for order to

section five of this Act may apply

aside

to a Judge for an order on the

plaintiff to show cause why the fop discharge,

special order and any writ issued

thereunder should not be set

aside and for an order staying

proceedings on the special orden

and any such writ in the mean

time.

(2) Any person arrested upon a writ of capias may apply to a Judge at any time after such arrest for an order on the plaintiff to show cause why such person should not be discharged out of custody.

Section 12—

Omit the section and insert in lieu thereof the following section:—

12. Any Judge may, upon the Hearing of hearing of the application, make application# such order therein as he thinlrs

fit and direct that the costs of the application be paid by either party.

FIEST

72 Supreme Court Procedure Act.

No. 13, 1957.

FIRST SClIEDULE-^n«mMe(i.

Refbrence

to Act.

Short Title.

Amendment.

f	Section 13—

Omit “ such order ” and insert

1 in lieu thereof the words “ order made under section twelve of this Act ”.

No. 8 , 1301

Judgment Cred-

Section 27, subsection (1)—

itors’Eemedies

(a)

After the words “ the Supreme

Act, 1901.

Court ” insert 'the words “ or in

a District Court ” .

.	1	(b)	Omit idle words “ of the said
r	'Court ’’ and iiBert in lieu thereof the words “of the Supreme Court or the District Court, as the case may be,”.

Bection 31—

Omit tlie words “ of the said Court ” and insert in lieu thereof the words “ df the Supreme Court or the District Court, as the case may be ” ,

No.3.5,190«

Supreme

Court

Section 1—

and

Circuit

Omit the matter relating to Parts

Courts	Act,	IV and V and insert in lieu thereof
1900.	the following matter

PART IV.—Sittings of Court elsewhere than at Sydney— ss. 22-33.

PART IV.A.—Crtol Delivery—

s. 33a.

Section 19, paragraph (b)—

Omit the paragraph.

Insert in Part IV immediately before section 22 the heading “ Sitti.'̂ os OF Court kt.sewheue tha.v at Sydney.”

■

Insert ne.xt after Part IV the

following new P art:—

PART IVa.

Gaol Delivery.

FIRST

JSiy>reme Ciuirt Procedur« Act.

FIRST SCHEDULiE—continued.

m. 18, 1987.

R<(ference

to Act.

.Short Title.

Amondment.

33a.	T ie governor of.eaoli prison Gaol delivery.

diaTl, at t ie .times prescribed by rules of oouiPt, make returns in ■writing to t ie Supreme Court, Sydney, as to all persoii.s detained in sucli prison, otiertvise than in pursuance of a sentence, giving t ie particulars rorpiired by such rules. If lie fails to make su.’i returns, he may bo ordered liy t ie Court to pay a line not icscceedinig five fiund.redl pounds.

The Court shall, after the receipt of such returns with respect to a pii.son, deliver such jt risen.

For the purpose aforesaid the Court may be constituted by one J.ndge sittdiBg in open ooui't in the eK-ea-frise -©f t ie criminal jurisdic tion of t ie court.

FiXeept as aforesaid, it shall not be obligatory on the Court or a J iidge to deliver any pri.son, or for a governor of a prison, unless so directed by the Court or a Judge, to make any such returns.

Part V—

Omit the Part.

Section 39—

Omit the word “ three ” and insert in lieu thereof the -word “ five ”.

Section 39a, paragraph (a)—

Omit the ivord “ norv ”.

No. 9, L912

Sup Mane

Cavia*t

Section 8—

."ind

Circuit

Omit the section.

•Courts

(Am

endment) Act,

1912.

FIRST

74 Supreme Court Procedure Act.

No.

13,

1967.

f ir st

sc h e d u l e—conimued.

Keference

to Act.

Short Title.

Amendment.

No. 10, 1921

Land and Valua

Section 13, subsection (1)—

tion Court Act,	Omit the subsection and insert
1921.	in lieu thereof the following subsection:—
(1) All process issuing out of the court shall be in the form pre scribed, and be signed by the officer issuing the process and marked with the court office stamp.

No. 16,^1900

Sheriff Act, 1900 Section I—

Omit the matter relating to Part

IV.

Part IV—

Omit the Part.

No. 49, 1900

Supreme

Court

Sections 12 and 13—

Procedure Act,	Omit these sections.
1900.

Section 14—

Omit the word “ three ” and insert in lieu thereof the word “ five ”.

Section 16—

Omit the words “ in the Schedule to this Act, or ”.

Schedule—

Omit the Schedule.

No. 31, 1912

Jury Act, 1912.

Section 32, subsection (2)—

(a) Omit the words “ and seal ”.

(b)	Insert at the end thereof the words “ or of the prothonotary thereof ”.

Section 32, subsection (3)—

Omit the words “ and seal ”.

Fifth Schedule—

Omit the words “ and seal ”.

No. 42, 1924

Administration

Section 14—

of Justice Act,

Omit the section.

1924. Schedule—

Omit the Schedule.

SECOND

Supreme Court Procedure Act.

SECOND SCeiEDIULE.

No. 13, 1957.

ClTAOOJI <OF AcIES.

Sec. 2.

First Column.

Second Column.

Administration of Justice Act, 1924.

Administration of Justice Act,

1'924-1957.

Arbitration Act, 1902.	Arbitration Act, 1,902-1957.
Arrest on Mosi>e Piooess Act, 1902.	Arrest on IMesiie Process Act,

1902-1957.

Coinauorciiil Causes Act, 1903.

Comniej'cdal Causes Act, 1903

1957.

Common Law Procedure Act, 1899.

Common Law Procedure Act,

1899-1-957.

Eqnity Aot, 1901.	Equity Act, 1.901-1957.
Judgment ’Creditors’ Kejuedies Aot,	Juilgmont Creditors’ Iteineclies

1901. Jury Act, 1912.

Act, 1901-1957.

Jury Act, 1912-19.57.

Justices Aot, 1902.	Justices Acit, 1902-1957.
Land and Valuation Coairt Act, 1921.	Land and A’aluation Court Act,

1921-1957.

Matrimonial Causes Act 1899.

Matrimonial Causes Act, 1899

1957.

m eriff Act, 1900.	Sheriff Act, 1900-1957.
Supreme Court and Circuit Courts	SupremeCourt and Circuit Con ts

Act, 1900.

Act, 1900-1957.

Supreme Court Procedure Act, 1900.

Supreame Court Procedure Act,

1.900-1957.

T U A A S C O K T