No. XXXI.
| A n A c t for the fur ther amendment | 0f | the |
Process Practice and mode of Pleading at Law in the Supreme Court and enlarging its Jur isdict ion in Common Law Proceedings.
| WH E R E A S i t is expedient fur ther to amend the process pract ice | and mode of p leading a t L a w in t h e Supreme Cour t and to |
en large i ts jur i sd ic t ion in Common L a w proceedings Be it enacted by t h e Queen ' s Most Excel len t Majesty by a n d wi th t he advice and consent of t he Legislat ive Council a n d Legislat ive Assembly of New South Wales in Pa r l i amen t assembled and by the au thor i ty of t he same as follows :—
1 . N o affidavit or solemn declarat ion made u n d e r t he provi
| sions of t he Acts of t he | Imper i a l | Pa r l i amen t | passed in t h a t | behalf |
| respectively in t h e fifty-fourth year of H i s Majesty K i n g George | t h e |
Th i rd and the s ixth year of H i s Majesty K i n g Wi l l i am the Four th or e i ther of t h e m shall be received in evidence in any Cour t in th is Colony unless a copy of such affidavit or declarat ion wi th notice of t h e in ten t ion to use t h e same shall have been served on t h e pa r ty to be affected the reby four teen days a t t h e least before t he day of t r ia l or other hea r ing A n d i t shal l be lawful for t h e Cour t or any J u d g e thereof to postpone such t r ia l or hea r ing on such t e rms as m a y be t h o u g h t j u s t u n t i l t he deponent or declarant shall have been examined
| t h e Sup reme Cour t or any J u d g e thereof on applicat ion by the. defen dan t or defendants or any of t h e m after appearance and before plea or answer u p o n be ing satisfied t h a t no sufficient reason exists why such m a t t e r s canno t be or ough t not to be referred to arb i t ra t ion according to such agreement as aforesaid and t h a t t h e defendant was a t t h e t ime of t h e b r i ng ing of such act ion or suit a n d still is ready and wil l ing to jo in and concur in all acts necessary and proper for | causing |
| or cross-examined unde r a commission for t h a t purpose | A n d all |
| affirmations | shall be equal ly wi th in th i s | enac tment . |
| 2. | Wheneve r | t he | par t ies to any deed or i n s t r u m e n t in | wr i t ing |
| to be hereafter made or executed or any of t h e m shall agree t h a t | any |
t h e n exis t ing or fu ture differences be tween t h e m or any of t h e m shall be referred to a rb i t ra t ion and any one or more of t h e par t ies so agree ing or any person or persons c la iming t h r o u g h or unde r h i m or t h e m shall nevertheless commence any act ion at l aw or suit in equi ty aga ins t t h e other pa r ty or par t ies or any of t h e m or against any person or persons c la iming t h r o u g h or unde r h im or t h e m in respect of t h e
| m a t t e r s so agreed to be referred | or any of t h e m it shall be lawful for |
causing such m a t t e r s so to be decided by a rb i t ra t ion to m a k e a ru l e or order s taying all proceedings in such act ion or sui t on such t e rms as to costs and otherwise as to such Cour t or J u d g e m a y seem fit Prov ided always t h a t any such ru le or order m a y a t any t i m e after wards be discharged or var ied as jus t ice m a y require .
8. I f in any case of a rb i t ra t ion t h e document au thor iz ing t h e
| reference | provide t h a t t he reference shall be to a single a rb i t ra to r |
| and all t h e par t i es do no t after | differences | have arisen concur in t h e |
appo in tment of an a rb i t ra to r or if any appointed a rb i t ra tor refuse to act or become incapable of ac t ing or die and the t e r m s of such docu m e n t do n o t shew t h a t i t was in t ended t h a t such vacancy should not be supplied and the par t ies do not concur in appoin t ing a new one or if where the par t ies or two arb i t ra tors are a t l iber ty to appoin t an u m p i r e or th i rd a rb i t r a to r such par t ies or a rb i t r a to r s do not
| appoin t | an | u m p i r e | or | t h i r d | a rb i t ra tor | or if | any | appointed | ump i r e |
or t h i r d a rb i t r a to r refuse to act or become incapable of ac t ing or die and the t e rms of t he document au thor iz ing t h e reference do not show t h a t it was in tended t h a t such a vacancy should n o t be supplied and the par t ies or a rb i t ra to rs respectively do not appoin t a
| new one t h e n in every such instance any p a r t y m a y serve t h e | r ema in |
ing par t ies or t he a rb i t ra tors as t h e case m a y be wi th a wr i t t en notice to concur in appoin t ing or to appoint (as t he case m a y be) an a rb i t r a to r ump i r e or t h i rd a rb i t r a to r respectively a n d if wi th in fourteen clear days after such not ice shall have been served no a rb i t ra tor u m p i r e or t h i rd a rb i t ra tor be appointed i t shal l be lawful for any J u d g e of t h e Supreme Cour t upon summons to be t a k e n out by t he pa r ty hav ing served such not ice as aforesaid to appoin t an a rb i t ra to r ump i r e or t h i rd a rb i t r a to r as t h e case may be and such a rb i t ra tor ump i r e and th i rd a rb i t r a to r respectively shall have t he l ike power to act in t he reference and m a k e an award as if he h a d been appointed by consent of all par t ies .
| 4. | W h e n t h e reference is or is in tended to be to two | a rb i t ra to rs |
one appointed by each pa r ty i t shal l be lawful for e i ther p a r t y in t h e case of t he death refusal to act or incapaci ty of any a rb i t ra to r appointed by h im to subs t i tu te a n e w arb i t ra to r unless t h e document au thor iz ing the reference shew t h a t it was in tended t h a t t h e vacancy should not be supplied and if on such a reference one pa r ty fail to appoin t an a rb i t ra to r e i ther originally or by way of subs t i tu t ion as aforesaid for fourteen clear days after t h e o ther p a r t y shall have appointed an a rb i t r a to r and shall have served the pa r ty so fail ing to
| appoin t wi th not ice in wr i t ing to m a k e the appoin tment t h e p a r t y who |
has appointed an a rb i t ra to r may appoint such arb i t ra tor to act as sole a rb i t ra tor in t h e reference and an award made by h im shall be b ind ing on bo th par t ies as if t he appo in tmen t had been by consent provided
| however t h a t t h e Cour t or a J u d g e m a y revoke | such appo in tmen t | on |
| such t e rms as shall seem jus t . |
| 5. W h e n the reference is to two arb i t ra tors and the t e r m s | of |
t he document au thor iz ing it do not shew t h a t i t was in tended t h a t the re should not be an ump i r e or provide otherwise for t he appoint m e n t of an u m p i r e t h e two a rb i t ra to rs m a y appoin t an u m p i r e at any t ime wi th in t he period du r ing which they have power to m a k e an award unless they be called u p o n by not ice as aforesaid to m a k e t h e
6. The arb i t ra tor ac t ing unde r any such document as aforesaid or u n d e r any order referr ing t h e award back shall m a k e his award unde r his h a n d and (unless such document or order respectively shall conta in a different l imit of t ime) wi th in th ree m o n t h s after he shal l have been appointed and shall have entered on the reference or shall have been called upon to act by a not ice in wr i t ing from a n y pa r ty
b u t
b u t t h e par t ies m a y by consent in wr i t i ng enlarge t he t e r m for m a k i n g t h e award and i t shall be lawful for t he Supreme Cour t or for any J u d g e thereof for good cause to be s ta ted in t he ru le or order for en la rgemen t from t ime to t ime to en large t h e t e r m for m a k i n g the award and if no period be stated for t he en la rgement in such consent or order for en la rgement i t shall be deemed to be an en la rgement for one m o n t h and in any case where an ump i r e shal l have been appointed i t shall be lawful for h i m to en te r on t h e reference in l ieu of t he a rb i t r a to r s if t h e la t ter shall have allowed the i r t ime or the i r ex tended t ime to expi re wi thou t m a k i n g an award or shall have delivered to a m p a r t y or to t h e ump i r e a notice in wr i t ing s ta t ing t h a t they cannot agree .
7. "When any award made on any such submission or document as aforesaid directs t h a t possession of any lands or t enemen t s capable of be ing t h e subject of an act ion of e jectment shall be delivered to any such p a r t y ei ther for thwith or a t any fu ture t ime or awards t h a t
| a n y such p a r t y is ent i t led to t h e possession of | any such lands or tene |
men t s i t shal l be lawful for t he Supreme Cour t to order any pa r ty to t h e reference who shall be in possession of any such lands or t enements or any person in possession of t h e same c la iming u n d e r or p u t in possession by h im since t he m a k i n g the document au thor iz ing the reference to deliver possession of t he same to t he pa r ty ent i t led there to p u r s u a n t to t h e award and such ru le or order to deliver possession shal l have t h e effect of a j u d g m e n t in e jectment against every such p a r t y or person named in i t and execut ion may issue and possession
| shall be delivered by the Sheriff as on a j u d g m e n t in | e jectment . |
8. Eve ry agreement or submission to a rb i t ra t ion by consent
| w h e t h e r | by | deed | or | i n s t r u m e n t | in | wr i t ing | not | u n d e r | seal m a y be | m a d e |
| a ru l e of t h e Sup reme Cour t on t h e appl icat ion | of any | pa r ty | the re to |
| un less such ag reement or submission | conta in | words | pu rpo r t i ng | t h a t |
| t he par t ies i n t end t h a t it should no t be m a d e a ru le of | Cour t . |
| 9. | I t shal l be lawful for the Cour t or J u d g e | a t t h e t r i a l of any |
cause whe re they or he m a y deem it r i gh t for t he purposes of jus t ice to order an ad journment for such t ime and subject t o such t e r m s and condi t ions as to costs and otherwise as they or he may t h i n k fit.
10 . I f any person called as a witness or requi red or desired to m a k e a n affidavit or deposit ion shall refuse or be unwi l l ing from alleged conscient ious motives to be sworn i t shall be lawful for the Cour t or J u d g e or other pres id ing officer or person qualified to t ake
| affidavits or depositions upon being satisfied of t he sinceri ty of such | objection to pe rmi t such person ins tead of be ing sworn to m a k e his or |
| her solemn affirmation in t he words following | v ide l ice t :— | |
" I A . B . do solemnly sincerely and t ru ly affirm and declare
" t h a t t h e t ak ing of any oath is according to m y religious
" belief unlawful and I do also solemnly sincerely and
| " | t r u l y affirm and declare & c . " |
W h i c h solemn affirmation shall be of t he same force a n d effect as if such person had t aken a n oath in t he usua l form and the l ike provi sions shal l apply also to every person requ i red to be sworn as a j u ro r .
1 1 . A pa r ty producing a witness shall no t be allowed to impeach
his c redi t by general evidence of bad charac ter but he may in case t h e witness shal l in t h e opinion of t he J u d g e prove adverse contradict
| h i m b y o ther evidence or by leave of t he J u d g e | prove t h a t | h e | has |
made a t o the r t imes a s t a tement inconsis tent with his present tes t imony b u t before such las t -ment ioned proof can be given the c i rcumstances of t h e supposed s t a t emen t sufficient to des ignate t he par t icu lar occasion
| m u s t be men t ioned t o t h e witness and he mus t be asked whe ther | or |
| not | he has m a d e | such | s t a t emen t . |
| 12. I f a wi tness u p o n | cross-examinat ion as to a former s ta te |
| men t made by h i m relative | to t h e subject | m a t t e r | of t he cause | a n d |
inconsistent wi th his p resen t t e s t imony does not dis t inct ly admi t t h a t he has made such s ta tement proof m a y be given t h a t h e did in fact make i t b u t before such proof can be given t he c i rcumstances of t h e supposed s t a t emen t sufficient to designate t he pa r t i cu la r occasion m u s t be men t ioned to the witness and he m u s t be asked whe the r or no t he
| has made such | s ta tement . |
13 . A witness m a y be cross-examined as to previous s t a t emen t s
made by h i m in wr i t ing or reduced in to wr i t ing relat ive to t he subject ma t t e r of t he cause wi thou t such wr i t i ng be ing shewn to h i m b u t if it is i n t ended to contradict such witness by t h e wr i t ing his a t t en t ion mus t before such cont radic tory proof can be given be called to those par ts of t h e wr i t ing which are to be used for t h e purpose of so con t radic t ing h i m Provided a lways t h a t i t shal l be competent for t h e
| J u d g e at any t ime du r ing t he t r ia l | to | requ i re | t h e product ion | of | t h e |
| wr i t ing for h is inspect ion and he m a y the reupon m a k e such | use of | it |
| for t h e purposes of t h e t r i a l as he shall t h i n k | fit. |
14. I t shall no t be necessary to prove by the a t tes t ing wi tness
| any in s t rumen t | to the val idi ty of which | a t t es ta t ion | is no t requisi te | and |
| such i n s t rumen t may be proved by admission or otherwise as if | t he r e |
| had been no a t t es t ing witness | there to . |
| 15. | Comparison of a disputed wr i t ing wi th any wr i t i ng | proved |
to t he satisfaction of t he J u d g e to be genuine shall be pe rmi t t ed to be made b y witnesses and such wr i t ings and t h e evidence of witnesses respect ing t he same may be submi t ted to t he Cour t and J u r y as evidence of t h e genuineness or otherwise of t h e wr i t ing in dispute .
| 16. | W h e n | a new t r i a l is g r an t ed | on the g round t h a t | t he verdict |
| was aga ins t evidence t he costs of t h e first t r i a l shall abide t h e | event |
| unless t h e Cour t shal l otherwise order. |
17. Al l m a t t e r s which at p resen t a re only t h e subject of a cross
act ion or m a y be m a d e t h e subject of a cross action be tween t h e part ies shall hereafter by leave of a J u d g e and on such t e rms as he shall t h i n k proper be pleadable by way of set off.
18. U p o n mot ions founded upon affidavits i t shall be lawful for e i ther p a r t y wi th leave of t h e Cour t or a J u d g e to m a k e affidavits in answer to t he affidavits of t h e opposite p a r t y upon any new m a t t e r ar is ing out of such affidavits subject to all such ru les as shall hereafter be made respect ing such affidavits.
19. U p o n the hea r ing of any mot ion or summons i t shall be
| lawful for t h e Cour t or J u d g e at the i r or his discretion and u p o n such |
| t e rms as t hey or he shall t h i n k reasonable from | t ime to t ime to order |
such documents as they or he m a y t h i n k fit to be produced and such witnesses as they or he m a y t h i n k necessary to appear and be examined
viva voce e i ther before such Cour t or J u d g e or before any Commissioner
for t a k i n g affidavits and upon hea r ing such evidence or read ing t h e
deposit ion to m a k e such ru le or order as may be jus t .
20. The Cour t or J u d g e may by such ru le or order or any sub
| sequent ru le or order | c o m m a n d | the a t t endance | of t h e wi tnesses | named |
the re in for t he purpose of be ing examined or t he p roduc t ion of any wr i t ings or other documents to be ment ioned in such ru l e or order and such ru le or order shall be proceeded upon in t h e same m a n n e r and
| shall have t h e same force and effect as a ru le | of t h e Cour t | unde r t h e |
A c t of Counci l fifth Victor ia n u m b e r n ine a n d i t shall be lawful for t h e Cour t or J u d g e or such Commissioner to adjourn t h e examina t ion from t ime to t ime as occasion m a y requ i re a n d the proceedings u p o n such examinat ion shall be conducted and the depositions t a k e n down
as near ly as m a y be in t h e mode now in use wi th respect to t h e viva
| voce examina t ion | of | witnesses u n d e r | t he las t -ment ioned | Act . |
2 1 . A n y p a r t y to any civil proceeding or mot ion for a cr iminal
informat ion in t he Supreme Cour t r equ i r ing t h e affidavit of a person who refuses to m a k e a n affidavit m a y apply by summons for an order to such person to appear and be examined upon oath before a Judge or any Commissioner for t a k i n g affidavits t o w h o m it may be most
| convenient to refer | such examina t ion as to t he m a t t e r s | concerning |
which he has refused to m a k e a n affidavit and a J u d g e m a y if he t h i n k fit m a k e such order for t he a t t endance of such person before t he person the re in appointed to t ake such examina t ion for t he purpose of be ing examined as aforesaid and for t h e produc t ion of any wr i t ings or documents to be ment ioned in such order and m a y the re in impose such t e r m s as to such examina t ion and costs of the appl ica t ion and
| proceedings the reon as he shall t h i n k | fit. |
22. Such order shall be proceeded upon in like m a n n e r as a n order made u n d e r t he hereinbefore ment ioned Ac t of Council fifth Victoria n u m b e r n ine and t h e examinat ion thereon shall be conducted and t he deposit ions t a k e n down and r e tu rned as near ly as may be in
the mode now used on viva voce examina t ions unde r t h e said Ac t of
Council .
| 23. | U p o n the appl icat ion of ei ther | p a r t y to any cause or other |
civil proceeding upon an affidavit by such p a r t y or his a t to rney of his belief t h a t any document to the product ion of which he is enti t led for t h e purpose of discovery or otherwise is in t h e possession or power of the opposite p a r t y i t shall be lawful for t h e Cour t or J u d g e to order t h a t t h e p a r t y agains t w h o m such applicat ion is m a d e or if such pa r ty is a body corporate t h a t some officer to be n a m e d of such body corpora te shall answer on affidavit s ta t ing w h a t documents he or t hey has or have in his or the i r possession or power re la t ing to t he ma t t e r s in d ispute or wha t he knows as to t h e custody they or any of them are in and w h e t h e r he or they objects or object (and if so on what grounds) to t h e produc t ion of such as are in his or the i r possession or power and upon such affidavit be ing made t h e Cour t or J u d g e may make such fur ther order the re in as shall be jus t .
| 2 1 . | E i t h e r p a r t y shall be a t l iber ty to apply to the | Cour t | or a |
Judge for a ru le or order for t h e inspect ion by t h e j u r y or by himself or by his witnesses or by so m a n y and such of t he persons summoned as j u r o r s for t h e t r ia l as m a y be t h o u g h t desirable of any real or personal p rope r ty t he inspect ion of which m a y be ma te r i a l to t h e proper de te rmina t ion of t he quest ion in dispute and i t shall be lawful for t h e Cour t or a J u d g e if t h e y or he t h i n k fit to m a k e such ru le or
| order u p o n such t e rms as to costs and otherwise as such Cour t or |
J u d g e m a y direct Provided always t h a t n o t h i n g here in contained shall affect t h e provisions of t h e Ac t of Council e leventh Victoria n u m b e r twen ty as to obta in ing a view by a j u r y Provided also t h a t all ru les and regula t ions now in force and applicable to t he proceedings b y view shal l be held to apply to proceedings for inspection by a j u r y