This Act may be cited as the Supreme Court Act 1970.
(1) Except as provided in subsection (2), this Act shall commence on a day to be appointed by the Governor and notified by proclamation published in the Gazette.(2) Part 9 shall commence on the date upon which the assent of Her Majesty to this Act is signified.
(1) Subject to this and any other Act, the Crown is bound by, and has the benefit of, this Act and the rules.(2) In subsection (1), Crown includes not only the Crown in right of New South Wales but also the Crown in all its other capacities.
Each Act mentioned in the First Schedule to this Act is, to the extent therein expressed, hereby repealed.
Any Act in force immediately before the commencement of this Act which is inconsistent with the rules shall be superseded to the extent of such inconsistency and while such inconsistency continues to exist.
(1) In any Act, rule of court or regulation in force immediately before the commencement of this Act:(a) a reference to the Court in Banco or to the Full Court or to the Court as a court consisting of two or more Judges shall be construed as a reference to the Court of Appeal,(b) a reference to the Court or to a Judge in any of the jurisdictions specified in the First Column of the Table below or to the practice or procedure of the Court in any of those jurisdictions shall be construed as a reference to the Division specified opposite that jurisdiction in the Second Column of that Table or, as the case may be, to the practice or procedure in that Division:
Table
First Column
Second Column
Jurisdiction
Division
Common Law
Common Law Division
Equity
Equity Division
Probate
Probate Division
Matrimonial Causes
Divorce Division
Protective
Protective Division
Admiralty
Admiralty Division
(c) a reference to the Judge exercising the matrimonial causes jurisdiction of the Court or appointed to exercise that jurisdiction shall be construed as a reference to the Chief Judge in Divorce,(d) a reference to a writ, whether of prohibition, mandamus, or certiorari or of any other description by which the Court formerly had jurisdiction to grant any relief or remedy shall, subject to subsection (2), be construed as a reference to the judgment or order by which the Court may grant that relief or remedy under this Act and the rules,(e) a reference to the Master in Equity or to the Master in the protective jurisdiction of the Court shall, subject to the rules, be construed as a reference to the master assigned to the Equity Division or, as the case may be, to the master assigned to the Protective Division or, where two or more masters are so assigned, to the senior master so assigned,(f) a reference to the holder of an office named in the First Column of the Table below shall, subject to the rules, be construed as a reference to the holder of the office named in the Second Column of that Table opposite to the name of the firstmentioned office:
Table
First Column
Second Column
Prothonotary
Prothonotary
Deputy Master and Registrar in Equity
Registrar in Equity
Registrar of Probates
Registrar in Probate
Registrar in Divorce
Registrar in Divorce
Registrar in Admiralty
Registrar in Admiralty
Registrar of the Court of Appeal
Registrar of the Court of Appeal
(g) a reference to the verdict or finding of a jury in any proceedings or on any issue in any proceedings on a trial with a jury shall, unless the context or subject matter otherwise indicates or requires, extend, in the case of proceedings on a common law claim tried without a jury pursuant to this Act, to the determination of the Court in the proceedings or on any such issue on a trial without a jury, and(h) a reference to an action of ejectment in the Court shall be construed as a reference to proceedings in the Court for possession of land.(2) Paragraph (d) of subsection (1) does not apply to a reference to:(a) the writ of habeas corpus ad subjiciendum,(b) any writ of execution for the enforcement of a judgment or order of the Court, or(c) any writ in aid of any such writ of execution.
A repeal made by section 5 or an amendment made by section 7 shall not revive anything not in force or existing immediately before the commencement of this Act.
Division 2 Abolition of certain matters
11 Distinction between court and chambers
(1) The distinction between court and chambers is abolished.(2) The business of the Court, whether conducted in court or otherwise, shall be taken to be conducted in court.
Informations in the nature of quo warranto are abolished.
(1) A person who immediately before the commencement of this Act held any office specified in the Table below shall subject to this Act continue to hold that office under this Act.Table
Chief Justice
President of the Court of Appeal
Judge of Appeal
Chief Judge in Equity
Judge exercising the matrimonial causes jurisdiction of the Court
Probate Judge
Judge
(2) The person who immediately before the commencement of this Act held the office of Judge exercising the matrimonial causes jurisdiction of the Court shall, on the commencement of this Act, be Chief Judge in Divorce.
(1) Notwithstanding section 111 and section 116, the holder immediately before the commencement of this Act of the office of Master in Equity is hereby:(a) appointed to be a master under this Act, and(b) assigned to the Equity Division and to the Protective Division.(2) Notwithstanding section 116:(a) the assignment by paragraph (b) of subsection (1) shall not be revoked without the consent of the master concerned, and(b) the master assigned to the Equity Division and to the Protective Division by that paragraph shall not be assigned to any other Division without the master’s consent.(3) (Repealed)
15 Registrars and other officers
Notwithstanding section 120, the holder immediately before the commencement of this Act of each office named in the First Column in the Table in paragraph (f) of subsection (1) of section 8 is hereby appointed to the office under this Act named in the Second Column in that Table opposite to the name of the firstmentioned office, to hold office subject to the provisions of the Public Service Act 1902.
(1) Subject to the rules, and unless the Court otherwise orders, this Act does not apply to, and the repeals and amendments made by this Act do not affect, any proceedings commenced in the Court before the commencement of this Act.(2) In particular, but without limiting the generality of subsection (1), subject to the rules, and unless the Court otherwise orders, in the case of any proceedings commenced in the Court before the commencement of this Act, this Act does not apply to, and the repeals and amendments made by this Act do not affect:(a) the completion after the commencement of this Act of any step in the proceedings taken before the commencement of this Act, or(b) the taking and completion after the commencement of this Act of any step in the proceedings.(3) Notwithstanding subsections (1) and (2):(a) sections 10 and 98 apply to proceedings commenced in the Court before the commencement of this Act,(b) any person held in custody on the date of commencement of this Act under any attachment or committal (otherwise than for contempt of court) or under any writ of capias ad respondendum or writ of ne exeat or otherwise on mesne process or under any writ of capias ad satisfaciendum shall, unless there is other lawful warrant for holding the person in custody, be discharged from custody on the date of commencement of this Act, and(c) no writ of foreign attachment under Part 20 of the Common Law Procedure Act 1899 shall be issued after the commencement of this Act.(4) For the purposes of this section:(a) the expression proceedings includes:(i) any cause, suit, application or matter in or before the Court or for decision or determination by the Court or any Judge of the Court, and(ii) any appeal from, or other means of review (whether by way of stated case, statutory prohibition or otherwise) of, any decision or determination of any court, tribunal or person,(b) the expression judgment includes any rule, decree or order, and(c) the expression step includes:whether before or after final judgment.(i) the entry or other perfecting of any judgment,(ii) an appeal to the Court of Appeal,(iii) an application for a new trial or for judgment notwithstanding a verdict,(iv) a motion in arrest of judgment,(v) a new trial,(vi) the punishment of contempt in connection with the proceedings,(vii) any thing done or to be done by way of execution or enforcement of a judgment in the proceedings,(viii) interpleader by any person having the execution of a judgment in the proceedings,(ix) an application for a stay of proceedings,(x) any thing done or to be done in consequence of an appeal to Her Majesty in Council or to the High Court of Australia,(5) The Court may make orders under this section on application by a party or of its own motion.
(1) Except as provided in this section this Act and the rules do not apply to any of the proceedings in the Court which are specified in the Third Schedule, and no claim for relief lies to the Court against an interlocutory judgment or order given or made in proceedings referred to in paragraph (a1) or (a2) of that Schedule.(2) Rules may be made under this Act:(a) for regulating and prescribing the practice and procedure of the Court, and(b) without limiting the generality of paragraph (a), for:in relation to any of the proceedings in the Court which are specified in the Third Schedule.(i) providing for the regulation of the sittings and order of business of the Court and the regulation of the vacations and holidays to be observed by the Court and in the offices of the Court, and(ii) prescribing the duties and functions of the Prothonotary and other officers of the Court and the records to be kept by them,(2A) The provisions of this Act, including Part 9 (subsections (1) and (4) of section 124 excepted), apply in relation to rules made pursuant to subsection (2) as they apply in relation to other rules.(3) Subsection (1) does not affect the operation of sections 1, 2, 5, 6, 7, 41, 53, 54, 55, 72, 101 (5) and 130.(4) (Repealed)
(1) Subject to subsection (2), nothing in this Act or in the rules affects the law formerly existing concerning appeals to Her Majesty in Council.(2) The provisions of this Act and the rules apply to proceedings in the Court for leave to appeal to Her Majesty in Council and to proceedings in the Court relating to such an appeal.(3) Subsection (2) has effect subject to Orders in Council from time to time in force under the Australian Courts Act 1828.
(1) In this Act and in the rules, except in so far as the context or subject-matter otherwise indicates or requires:claim for relief includes:
(a) a claim for the recovery of damages or other money, or for possession of land, or for delivery of goods,(b) a claim for a declaration of right,(c) a claim for the determination of any question or matter which may be determined by the Court, and(d) any other claim (whether legal, equitable or otherwise) justiciable in the Court.commencement, in relation to this Act, means the date appointed under subsection (1) of section 2.
common law claim means a claim for damages or other money, or for possession of land, or for detention of goods, in proceedings in the Common Law Division.
costs includes fees, charges, disbursements, expenses and remuneration.
Court means the Supreme Court of New South Wales.
defendant includes any person served with a statement of claim or summons, or served with notice of or entitled to attend any proceedings.
Division means a Division of the Court specified in paragraph (b) of section 38.
formerly means immediately before the commencement of this Act.
Judge means a Judge of the Court but does not include an associate Judge.
land includes messuages, tenements and hereditaments, corporeal and incorporeal, of any tenure or description, and whatever may be the estate or interest therein, whether vested or contingent, whether freehold or leasehold, and whether at law or in equity.
minor means a person under the age of eighteen years.
prescribed means prescribed by the rules.
registrar means a person who is for the time being appointed to and holding an office of registrar, as referred to in section 119, and includes:
(a) a person who is for the time being appointed to act temporarily in an office of registrar (as referred to in section 120 (b)), and(b) a person who is for the time being appointed as a deputy to the holder of an office of registrar (as referred to in section 120 (c)), whether designated as a deputy, assistant or otherwise, but only when the person is exercising a power conferred by or under this Act or the Criminal Appeal Act 1912 on the holder of an office of registrar with the authority of that holder or a person for the time being appointed to act temporarily in the office of that holder, and(c) a person who is authorised under section 120A to exercise any power conferred by or under this Act or the Criminal Appeal Act 1912 on the holder of an office of registrar, but only when the person is exercising such a power.rules means rules of the Court from time to time in force and includes:
(a) rules made by the Rule Committee, and(b) rules that have effect, by virtue of section 122, as rules made by the Rule Committee, and(c) any Schedule to rules of the Court.stated case means a case stated by the Court in a Division under the rules or under any Act or a case stated under any Act by any other court or by any judge of any other court or other person for the opinion, decision, direction or determination of the Court, and includes:
(a) an award in the form of a case stated under section 9 of the Arbitration Act 1902, and(b) a matter referred under section 85 of the Superannuation Act 1916.(2) For the purposes of this Act and the rules, proceedings in the Court under an Act:(a) are an appeal if described in that Act or in any regulation made under that Act as an appeal, and(b) subject to the rules, are not an appeal if not so described.(3) Notes included in this Act do not form part of this Act.
21A Construction of references to Divorce Division
In any Act (including this Act), rule of court or regulation in force immediately before the commencement of section 4 of the Administration of Justice Act 1973, a reference to, or a reference to be construed as a reference to:(a) the Divorce Division shall be construed as a reference to the Family Law Division,(b) the Chief Judge in Divorce shall be construed as a reference to the Chief Judge of the Family Law Division, and(c) the Registrar in Divorce shall be construed as a reference to the Registrar of the Family Law Division.