AustLII Tasmanian Consolidated Acts

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SUPREME COURT CIVIL PROCEDURE ACT 1932 - SECT 10

Law and equity to be administered concurrently

Subject to the express provisions of any other Act, in every cause or matter commenced in the Court, law and equity shall be administered according to the following provisions of this section:
(1)  If any plaintiff or petitioner claims to be entitled to any equitable estate or right, or to relief upon any equitable ground against any deed, instrument, or contract, or against any right, title, or claim whatsoever asserted by any defendant or respondent in such cause or matter, or to any relief founded upon a legal right which heretofore could only have been given by the Court in its jurisdiction in equity, the Court or judge shall give to such plaintiff or petitioner the same relief as ought to have been given by the Court in its jurisdiction in equity in a suit or proceeding for the like purpose properly instituted before the commencement of this Act.
(2)  If any defendant claims to be entitled to any equitable estate or right, or to relief upon any equitable ground against any deed, instrument, or contract, or against any right, title, or claim asserted by any plaintiff or petitioner in the cause or matter, or alleges any ground of equitable defence to any claim of the plaintiff or petitioner in such cause or matter, the Court or judge shall give to every equitable estate, right, or ground of relief so claimed, and to every equitable defence so alleged, the same effect, by way of defence against the claim of such plaintiff or petitioner, as the Court in its jurisdiction in equity ought to have given if the like matters had been relied on by way of defence in any suit or proceeding instituted for the like purpose before the passing of the Legal Procedure Act 1903 .
(3)  –
(a) The Court and every judge thereof shall also have power to grant to any defendant in respect of any equitable estate or right or other matter of equity, and also in respect of any legal estate, right, or title claimed or asserted by him –
(i) all such relief against any plaintiff or petitioner as such defendant shall have properly claimed by his pleading, and as the Court or a judge thereof might have granted in any suit instituted for that purpose by that defendant against the same plaintiff or petitioner; and
(ii) all such relief relating to or connected with the original subject of the cause or matter, claimed in like manner against any other person, whether already a party to the same cause or matter or not, who has been duly served with notice in writing of such claim pursuant to the Rules of Court or any order of the Court, as might properly have been granted against that person if he had been made a defendant to a cause duly instituted by the same defendant for the like purpose;
(b) every person served with any such notice shall thenceforth be deemed a party to such cause or matter, with the same rights in respect of his defence against such claim as if he had been duly sued in the ordinary way by such defendant.
(4)  The Court and every judge thereof shall take notice of all equitable estates, titles, and rights and all equitable duties and liabilities appearing incidentally in the course of any cause or matter in the same manner in which the Court in its jurisdiction in equity would have taken notice of the same in any suit or proceeding duly instituted therein before the commencement of this Act.
(5)  No cause or proceeding at any time pending in the Court shall be restrained by prohibition or injunction; but every matter of equity on which an injunction against the prosecution of any such cause or proceeding might have been obtained, whether unconditionally or on any terms or conditions, if the Legal Procedure Act 1903 had not passed, may be relied on by way of defence thereto: Provided that –
(a) nothing in this Act contained shall disable the Court or any judge thereof from directing a stay of proceedings in any cause or matter pending before it or him if it or he shall think fit; and
(b) any person, whether a party or not to any such cause or matter who would have been entitled, if the Legal Procedure Act 1903 had not passed, to apply to the Court or a judge thereof to restrain the prosecution thereof, or who may be entitled to enforce, by attachment or otherwise, any judgment, decree, rule, or order, in contravention of which all or any part of the proceedings in the cause or matter have been taken, may apply to the Court or a judge by motion or summons in a summary way for a stay of proceedings in the cause or matter, either generally or so far as may be necessary for the purpose of justice, and the Court or judge shall thereupon make such order as shall be just.
(6)  Subject to the provisions of this Act for giving effect to equitable rights and other matters of equity, and to the other express provisions of this Act, the Court and every judge thereof shall recognize and give effect to all legal claims and demands, and all estates, titles, rights, duties, obligations, and liabilities existing by the common law or by any custom or created by any statute, in the same manner as the same would have been recognized and given effect to if this Act had not passed.
(7)  The Court and every judge thereof, in the exercise of the jurisdiction of the Court which is subject to this Act, shall in every cause or matter pending in the Court grant, either absolutely or on such terms and conditions as to the Court or judge shall seem just, all such remedies whatsoever as any of the parties thereto may be entitled to in respect of any and every legal or equitable claim properly brought forward by them respectively in such cause or matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of those matters avoided.



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