Commonwealth Numbered Acts

JUDICIARY AMENDMENT ACT (NO. 2) 1979 No. 138 of 1979 - SECT 13

13. After Part X of the Principal Act the following Parts are inserted:

                   ''PART  XA-PROCEDURE  OF  THE  HIGH  COURT


''Division 1-Trials Trial without jury
''77A. In every suit in the High Court, unless the Court otherwise orders, the
trial shall be by a Justice without a jury. Power of High Court to direct
trial with jury
''77B. The High Court may, in any suit in which the ends of justice appear to
render it expedient to do so, direct the trial with a jury of the suit or of
an issue of fact, and may for that purpose make all such orders, issue all
such writs and cause all such proceedings to be had and taken as the Court
thinks necessary, and upon the finding of the jury the Court may give such
decision and pronounce such judgment as the case requires. Trial of an issue
and new trials
''77C. (1) The High Court may, in any case in which the Court directs the
trial of an issue or grants a new trial, impose such conditions on a party,
and direct such submissions to be made by a party, for the purpose of the
trial or new trial as are just.

''(2) Where the High Court grants a new trial, the Court may-

   (a)  grant the new trial, either generally or on particular issues only, as
        the Court thinks fit; and

   (b)  order that testimony of a witness examined at the former trial may be
        used in the new trial in such manner as is specified in the order.
        Juries
''77D. (1) Subject to sub-section (4) and to any other law of the
Commonwealth, the laws in force in a State or Territory relating to-

   (a)  the qualification of jurors;

   (b)  the preparation of jury lists and jury panels;

   (c)  the summoning, attendance and impanelling of juries;

   (d)  the number of jurors;

   (e)  the right of challenge;

   (f)  the discharge of juries;

   (g)  the disagreement of jurors;

   (h)  the remuneration of jurors; and

   (j)  other matters concerning jurors after they have been summoned,
        appointed or sworn, that apply for the purposes of the trial of civil
        proceedings in the Supreme Court of that State or Territory extend and
        shall be applied in civil matters in which a trial is had with a jury
        in the High Court in that State or Territory.

''(2) Subject to sub-section (4) and to any other law of the Commonwealth, the
laws in force in a State or Territory relating to the matters mentioned in
paragraphs (1) (a) to (j), inclusive, that apply for the purposes of the trial
of criminal matters in the Supreme Court of that State or Territory extend and
shall be applied in the trial of indictable offences in the High Court in that
State or Territory.

''(3) For the purposes of a trial of a civil or criminal matter in the High
Court in a State or Territory as mentioned in sub-section (1) or (2), the list
of jurors made for the purposes of the Supreme Court of the State or Territory
shall be deemed to have been made as well for the purposes of the High Court.

''(4) The precept for a jury shall be issued by the Registrar or such other
officer of the High Court as the Court directs, and the Marshal shall prepare
the jury panels and summon jurors.

''(5) An officer of a State or Territory who has the custody of a jury list
shall furnish a copy of the list to the proper officer of the Commonwealth on
demand and on payment of a reasonable fee.

                             ''Division 2-Evidence
Production of books
''77E. (1) The High Court may in any suit order a party to produce any books
or writings in his possession or power that contain evidence pertinent to any
issue in the suit.

''(2) If a party fails to comply with an order under sub-section (1), the High
Court may-

   (a)  where the party is the plaintiff-dismiss the suit; or

   (b)  where the party is the defendant-give judgment against him as by
        default. Oaths and affirmations
''77F. (1) The High Court may require and administer all necessary oaths and
affirmations.

''(2) A person may, for the purposes of any proceeding before the High Court,
make an affirmation instead of an oath.

''(3) The Chief Justice may issue commissions to persons within or beyond
Australia authorizing them to administer oaths and affirmations for the
purposes of proceedings in the High Court.

''(4) Subject to the Rules of Court, the forms of oaths and affirmations shall
be the same, as nearly as practicable, as those that are used in the Supreme
Court of the State or Territory in which the oath or affirmation is
administered. Orders and commissions for examination of witnesses
''77G. The High Court may, in any cause pending in the Court and at any stage
of the proceedings-

   (a)  order the examination of a person upon oath orally or on
        interrogatories before the Court, an officer of the Court or another
        person at any place within Australia; or

   (b)  order that a commission issue to a person, either within or beyond
        Australia, authorizing him to take the testimony upon oath of a person
        orally or on interrogatories, and the Court may-

   (c)  by the same or a subsequent order give any necessary directions
        concerning the time, place and manner of the examination; and

   (d)  empower any party to the cause to give in evidence in the cause the
        testimony so taken on such terms (if any) as the Court directs. Oral
        and affidavit evidence
''77H. (1) On the hearing of any matter, not being the trial of a cause,
evidence may be given by affidavit or as otherwise directed or allowed by the
High Court.

''(2) At the trial of a cause, proof may be given by affidavit of the service
of a document in or incidental to the proceedings in the cause or of the
signature of a party to the cause or of his solicitor to such a document.

''(3) The High Court may at any time, for sufficient reason and on such
conditions as are just, order that particular facts may be proved by affidavit
at the trial of a cause, or that the affidavit of a person may be read at the
trial of a cause.

''(4) Notwithstanding any order under sub-section (3), if a party to a cause
desires in good faith that the maker of an affidavit (other than an affidavit
referred to in sub-section (2)) proposed to be used in the cause be
cross-examined with respect to the matters in the affidavit, the affidavit may
not be used in the cause unless that person appears as a witness for
cross-examination or the High Court, in its discretion, permits the affidavit
to be used without the person so appearing.

''(5) If the parties to a suit so agree and the High Court does not otherwise
order, testimony at the trial of the suit may be given by affidavit.

''(6) Subject to the foregoing provisions of this section, testimony at the
trial of a cause shall be given orally.

                        ''Division 3-Defects and errors
Amendment
''77J. (1) At any stage of a proceeding before the High Court, the Court may,
on such terms as are just, make such amendment as it thinks necessary to
correct any defect or error in the proceeding.

''(2) All necessary amendments shall be made for the purpose of determining
the real questions in controversy or otherwise depending on the proceedings.
Formal defects not to invalidate
''77K. (1) No proceedings in the High Court are invalidated by a formal defect
or an irregularity unless the Court is of opinion that substantial injustice
has been caused by the defect or irregularity and that the injustice cannot be
remedied by an order of the Court.

''(2) The High Court may, on such conditions (if any) as the Court thinks fit,
make an order declaring that a proceeding is not invalid by reason of a defect
that it or he considers to be formal, or by reason of an irregularity.

                        ''Division 4-Reserved judgments
Reserved judgments
''77L. (1) When any cause or matter, after being fully heard before a Full
Court, is ordered to stand for judgment, it is not necessary that all the
Justices before whom it was heard be present together in court to declare
their opinions on the cause or matter, but the opinion of any of them may be
reduced to writing and may be read or otherwise made known by any other
Justice at any subsequent sitting of a Full Court at which judgment in the
cause or matter is delivered.

''(2) In any such case the question shall be decided in the same manner, and
the judgment of the Court has the same force and effect, as if the Justice
whose opinion is so read or otherwise made known had been present in court and
had declared his opinion in person.

                      ''Division 5-Judgment and execution
Enforcement of judgments
''77M. (1) Subject to the Rules of the Court, a person in whose favour a
judgment of the High Court is given is entitled to the same remedies for the
enforcement of the judgment in a State or Territory, by execution or
otherwise, against the person, or against the property of the person, against
whom the judgment is given, as are allowed in like cases by the laws of that
State or Territory to persons in whose favour a judgment of the Supreme Court
of that State or Territory is given.

''(2) This section does not affect the operation of any provision made by or
under any other Act or by the Rules of Court for the execution and enforcement
of judgments of the High Court. Interest on judgment debts
''77N. A judgment debt under a judgment of the High Court carries interest, at
such rate as is fixed by the Rules of Court, from the date as of which the
judgment is entered. Interpleader
''77P. When any claim is made to property taken in execution upon process
issued out of the High Court, the Marshal or a Deputy Marshal may take in the
Supreme Court of the State or Territory in which the property is situated the
same proceedings by way of interpleader as if the process had been issued out
of that Supreme Court, and that Supreme Court and the Judges of that Supreme
Court have jurisdiction to entertain and determine the matter. Discharge of
property taken in execution
''77Q. A seizure or attachment of property in execution upon process issued
out of the High Court becomes inoperative upon the occurrence of any event by
which, according to the laws of the State or Territory in which the property
is situated, the seizure or attachment would become inoperative if made upon
like process issued out of the Supreme Court of that State or Territory.

                      ''Division 6-Receivers and managers
Receivers and managers
''77R. (1) The High Court may, at any stage of a proceeding and on such terms
and conditions as the Court thinks fit, appoint a receiver or manager in any
case in which it appears to the Court to be just or convenient to do so.

''(2) A receiver or manager appointed under sub-section (1) may, without the
previous leave of the High Court, be sued in respect of any act or transaction
done or entered into by him in carrying on the business connected with the
property of which he is receiver or manager.

''(3) When in any cause pending in the High Court a receiver or manager
appointed by the Court is in possession of any property, the receiver or
manager shall manage and deal with the property according to the requirements
of the laws of the State or Territory in which the property is situated in the
same manner as that in which the owner or possessor of the property would be
bound to do if in possession of the property.

                    ''PART  XB-APPEALS  TO  THE  HIGH  COURT


''Division 1-Security Security
''77S. (1) The Rules of Court may make provision for and in relation to the
giving, in an appeal to the Court, of security for the prosecution of the
appeal without delay and for the payment of costs that may be awarded against
the appellant.

''(2) If security is not given as required by or in accordance with the Rules
of Court, the High Court may order that the appeal be dismissed.

''(3) This section does not affect the operation of any provision made by or
under any other Act for or in relation to the giving of security.

                             ''Division 2-Procedure
Institution of appeals
''77T. Appeals to the High Court shall be instituted within such time and in
such manner as are prescribed by Rules of Court. Stay of proceedings
''77U. When an appeal has been instituted, the High Court or the Court or
Judge appealed from may order a stay of all or any proceedings under the
judgment appealed from. Death of party to an appeal
''77V. (1) When a party to a judgment from which an appeal lies to the High
Court has, whether before or after the commencement of this section, died
before the time allowed for instituting an appeal has expired, it is not
necessary to revive the cause or matter by any formal proceedings.

''(2) If the personal representative of the deceased party desires to appeal,
he may file in the Court by which the judgment was given or made a duly
certified copy of the instrument by which he is appointed, and thereupon may
institute an appeal in the same manner as the party whom he represents might
have done.

''(3) In the case of the death of the party in whose favour the judgment is
given or made, notice of appeal may be given to his personal representative,
or, if there is no such representative, to such person as the High Court
directs.''.