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4-020 (Original)

Item metadata
Speaker:
addressee author,male,Legislative Act,un
ns1:discourse_type
Legal Document
Word Count :
3080
Plaint Text :
ns1:register
Government English
ns1:texttype
Legal English
ns1:localityName
http://dbpedia.org/resource/New_South_Wales
Created:
1881
Identifier
4-020
Source
Bennett, 1979
pages
236-241
Document metadata
Extent:
17345
Identifier
4-020.txt
Title
4-020#Original
Type
Original

4-020.txt — 16 KB

File contents



<source><g=m><o=u><age=un><status=1><abode=un><p=nsw><r=gen><tt=lg><4-020>
An Act to provide for the establishment of an Australasian Court of Appeal.
Whereas the colonies of New South Wales Victoria South Australia Queensland Western Australia New Zealand and Tasmania have expressed their desire that a Court should be established as hereinafter provided for the hearing of appeals from the Supreme Court of each such colony: And whereas the sanction of the Imperial Parliament is necessary in order that such Court may be duly established and be invested with the necessary powers and authorities in that behalf: And whereas the said colonies have through their respective Legislatures consented to the constitution of the said Court by an Act of the Imperial Parliament upon the basis with the authority and subject to the provisions hereinafter declared and expressed: [237]
Be it enacted by the Queen's Most Excellent Majesty by and with the advice and consent of the Lords Spiritual and Temporal and Commons in this present Parliament assembled and by the authority of the same as follows: - 
1. This Act may be cited as "The Australasian Court of Appeal Act."
2. In this Act and any general rules and orders made in pursuance hereof unless the context otherwise requires - "The Court of Appeal" means the Australasian Court of Appeal; "Colony" means any one of the colonies of New South Wales, Victoria, South Australia, Queensland, Western Australia, New Zealand or Tasmania;
"Supreme Court" means the Supreme Court, Appellate Court or other Court of last resort in any colony;
The "Registrar" means the Registrar of the Court of Appeal and includes any person who may be appointed by the Court to perform any of the duties of the registrar;
"Judgment" includes any rule order decision decree decretal order sentence or determination of any Supreme Court;
"Governor" means the Governor (or officer administering the Government) in Council or the Governor (or such officer) with the advice of the Executive Council;
"Prescribed" means prescribed by any general rule or order made by the Court of Appeal under the provisions of this Act.
3. A Court of Appeal to be called the Australasian Court of Appeal shall be constituted in and for New South Wales Victoria South Australia Queensland Western Australia New Zealand and Tasmania which shall have and exercise appellate civil jurisdiction within and throughout each and all of the said colonies.
4. Such Court of Appeal shall be a Superior Court of Record and shall have and use as occasion may require a seal of office having inscribed thereon the words "The Australasian Court of Appeal."
5. The Governor of every colony shall by commission under the Great Seal of the colony under his Government appoint for any term not exceeding one year the Chief Justice or any Puisne Judge of each such colony to be one of the Judges of the Court of Appeal constituted by this Act. The senior Chief Justice or in the event of no Chief Justice of any colony being present at any sitting of the Court the senior Puisne Judge then present shall be the President. The Court may lawfully be held by and before any three or more Judges and shall be held to be lawfully constituted for all purposes notwithstanding any vacancy in the office of any Judge thereof provided that three members of the Court at least shall have been appointed and have taken the judicial oath hereinafter prescribed.
6. Every Judge of the Court of Appeal shall before acting judicially take the following oath: - "I do swear that I will well and truly serve our Sovereign Lady Queen Victoria in the office of Judge of the Australasian Court of Appeal and I will do right to all manner of people according to law without fear or favor affection or ill-will. So help me God."
The said oath shall be administered to every Judge before the Governor of the colony in which the first sitting of the Court of Appeal shall be held during the term of the commission of such Judge. [238]
7. The appointment of the Chief or Puisne Judge of any colony to be a Judge of the Court of Appeal constituted by this Act shall not vacate or otherwise affect the commission under which such Judge holds his commission in and for such colony but any Judge of the said Court of Appeal may resign his commission as a Judge of such Court by writing addressed to the Governor of the colony by whom he was appointed. Every Judge shall hold his office as Judge of the Court of Appeal for the term of his commission on the same tenure and conditions as he holds his office of Chief or Puisne Judge.
8. The Court of Appeal shall have power to appoint some fit and proper person being a barrister attorney or practitioner of the Supreme Court of any colony of at least five years' standing to be the registrar of the Australasian Court of Appeal, and such other persons as may be necessary to be clerks and servants of the said Court. Such registrar clerks and servants may be dismissed by the Court.
9. The Court of Appeal shall sit at such times and places as may be prescribed. The determination of the place and time for holding any sitting of the Court shall so far as possible be governed by the preponderance of the appeals set down for hearing before the Court as between any one colony and any other as well as by the condition of the appellate business of the Court. In appointing the sitting of such Court provision shall be made as far as practicable for hearing appeals at least once a year in the colony in which the judgment appealed from shall have been given. The first sitting of the Court shall be held within twelve months after the passing of this Act at Sydney in the Colony of New South Wales.
10. Any person may appeal to the Court of Appeal from any final judgment of the Supreme Court of any colony pronounced made or given in any civil suit or proceeding in such manner within such time and under and subject to such rules regulations and limitations as this Act directs:
Provided that nothing in this Act shall abridge or affect the right of any person to appeal to Her Majesty in Council pursuant to the provisions of the several Imperial Statutes regulating appeals to be heard by the Judicial Committee of Her Majesty's Privy Council and Her Majesty's Orders in Council made thereunder: Provided further that if any person entitled under the next succeeding section of this Act to appeal to the Court of Appeal constituted by this Act shall desire so to appeal he shall give the prescribed notice of such his intention to the other party and thereupon it shall be lawful for such other party to apply to the court from whose judgment it is intended to appeal for an order directing that such appeal shall be preferred to Her Majesty in Council pursuant to the said firstly-mentioned Statutes and Orders in Council and the said Court so appealed from may in its discretion grant or refuse such order upon such terms as to costs and otherwise as the said Court shall think just.
11. In case any such judgment shall be given or pronounced in the Supreme Court in any colony for or in respect of any sum or matter at issue above the amount or value of Five hundred pounds sterling, or in case such judgment shall involve directly or indirectly any claim demand or question to or respecting property or any civil right amounting to or of the value of Five hundred pounds sterling, the person or persons feeling aggrieved by any such judgment may within fourteen days next after the same shall have been pronounced made or given and after service of the prescribed notice of his intention so to do on the other party apply to the said Supreme Court by motion or petition for leave to appeal therefrom to the Court of Appeal. [239]
12. In case such leave to appeal shall be prayed by the party or parties who is or are directed to pay any such sum of money or perform any duty, the said Supreme Court shall be and is hereby empowered either to direct that the judgment appealed from shall be carried into execution or that the execution thereof shall be suspended pending the said appeal as to the said Court may appear to be most consistent with real and substantial justice.
13. In case the Supreme Court shall direct such judgment to be carried into execution, the person or persons in whose favor the same shall be given shall before the execution thereof enter into good and sufficient security to be approved by the said Supreme Court for the due performance of such judgment as the Court of Appeal shall think fit to make thereupon.
14. In all cases security to the satisfaction of the Court appealed from shall be given by the party or parties appellant of not less than the value of Five hundred pounds sterling for the prosecution of the appeal and the payment of all such costs as may be awarded by the Court of Appeal to the party or parties respondent.
15. If such last-mentioned security shall be given within two months from the date of such motion or petition for leave to appeal then and not otherwise the Supreme Court shall allow the appeal, and the party or parties appellant shall be at liberty to prefer and prosecute his her or their appeal in such manner and under such general rules and orders as are or may be observed in appeals made to such Court of Appeal.
16. The Supreme Court may at its discretion on the petition of any party who considers himself aggrieved by any preliminary or interlocutory judgment of the said Supreme Court grant permission to such party to appeal against the same to the Court of Appeal subject to the same rules regulations and limitations as apply to appeals from final judgments.
17. It shall be lawful for the Court of Appeal upon any appeal to remit the matter which shall be the subject of such appeal to the Court from the decision of which such appeal shall have been made and at the same time to direct that such Court shall re-hear such matter in such form and either generally or upon certain points only, and upon such re-hearing take such additional evidence though before rejected or reject such evidence before admitted as the Court of Appeal shall direct and further on any such remitting or otherwise it shall be lawful for the Court of Appeal to direct that one or more feigned issues shall be tried in the Supreme Court at such sitting of that Court and in such manner as the Court of Appeal may direct either by general rule or by order in the particular case.
18. It shall be lawful for the said Court of Appeal to direct one or more new trial or new trials of any issue either generally or upon certain points only and that in case any witness examined at a former trial of the same issue shall have died or have through bodily or mental disease or infirmity become incapable to repeat his testimony it shall be lawful for the said Court of Appeal to direct that parol evidence of the testimony of such witness shall be received.
19. If in any action suit or other proceeding it shall so happen that no final judgment can be duly given in consequence of a disagreement of opinion between the Judges of the Supreme Court, then and in such case the final judgment may he entered pro forma on the petition of any of the parties to the action suit or other proceedings according to the opinion of the Chief Justice or in his absence of the senior Puisne Judge of the Supreme Court, provided that such judgment shall be deemed a judgment of the Court for the purpose of an appeal against the same but not for any other purpose. [240]
20. The Court of Appeal may upon the petition of any person or persons aggrieved by any judgment of the Supreme Court admit his her or their appeal therefrom upon such terms and upon such securities limitations restrictions and regulations as the Court of Appeal shall think fit, and shall have power to confirm reverse or vary such judgment as to the Court of Appeal shall seem meet.
21. In all cases of appeal allowed by the Supreme Court or Court of Appeal the Supreme Court shall certify and transmit to the Court of Appeal a true and exact copy of all evidence proceedings judgments had or made in such cases appealed against so far as the same have relation to the matters of appeal, such copies to be certified under the seal of the said court; and the Supreme Court shall also certify and transmit to the Court of Appeal a copy of the reasons given by the Judges of such Supreme Court or by any of such Judges for or against the judgment appealed against where such reasons shall have been given in writing, and where such reasons shall have been given orally then a statement in writing of the reasons given by the Judges of such Supreme Court or by any of such Judges for or against the judgment appealed against.
22. The Supreme Court shall in all cases of appeal to the Court of Appeal conform to and execute or cause to be executed such judgments as the Court of Appeal shall think fit to make in the premises in such manner as any original judgment of the said Supreme Court should or might have been executed.
23. Whenever it shall be found that the decision of a matter on appeal is likely to turn exclusively on a matter of law such question may with the sanction of the registrar be submitted to such Court in the form of a special case in the prescribed manner.
24. The judgment of the Court of Appeal in any matter shall be enrolled for safe custody in such manner, and the same may be inspected and copies thereof taken under such general rule or order as the Court shall direct.
25. The judgment of the Court of Appeal shall in all cases be final and conclusive, and no appeal shall be brought from any judgment of such Court: saving any right which Her Majesty may be graciously pleased to exercise by virtue of Her Royal Prerogative.
26. Proceedings in appeals shall when not otherwise provided for by this Act or by the general rules and orders to be made in pursuance hereof be as nearly as possible in conformity with the practice for the time being regulating appeals before the Judicial Committee of Her Majesty's Privy Council.
27. The Court of Appeal may make alter or rescind any general rule or order requiring the Judges' notes of the evidence taken before such Court on any cause appealed from which notes of evidence shall by such Court be transmitted to the registrar of the Court of Appeal within one month next after the leave given by such Supreme Court to prosecute any appeal to the Court of Appeal; and such rule or order shall be binding upon all Judges of such Courts in each colony. [241]
28. The costs incurred in the prosecution of any appeal and of such issues as the Court of Appeal may direct shall be paid by such party or parties person or persons and be taxed by the registrar and in such manner as the Court shall direct: Provided however that an appellant who shall succeed in obtaining a reversal or material alteration of any judgment appealed from shall be entitled to recover the costs of the appeal from the respondent except in cases in which the Court of Appeal may think fit otherwise to direct.
29. All persons being barristers or advocates in any colony shall have the right to practise as such in the Court of Appeal;
All persons being attorneys solicitors or proctors of the Supreme Court in any colony shall have the right to practise as such in the Court of Appeal;
And all persons who may practise as attorneys solicitors or proctors in the Court of Appeal shall be officers of such Court.
30. All persons appointed or authorized to administer affidavits in the Supreme Court in any colony may administer affidavits to be used in the Court of Appeal.
31. The process of the Court of Appeal shall run throughout every colony and shall be tested in the name of the President for the time being.
32. All fees received by the officers of the Court of Appeal shall be appropriated towards defraying the expense and cost of maintaining such Court, and if such fees are not sufficient to defray all such expense and cost the amount of the deficiency shall be made up from time to time by a contribution from each colony calculated proportionately as nearly as may be according to the population of each colony.
33. Any four Judges of the Court of Appeal may from time to time make alter or rescind such general rules and orders as the Court may think fit - for regulating the places and times of the sitting of the Court of Appeal and the place and mode of keeping the records books documents and papers of or in the custody of such Court; for regulating the mode form and time of appealing to the Court of Appeal and the procedure in all matters; for preventing delays in the making or hearing of such appeals; as to the expenses attending appeals the fees payable to the Court and the taxation of costs; as to conduct and duties of all officers and practitioners in the Court of Appeal; and generally for carrying out the intention and objects of this Act; and all such rules and orders not being inconsistent with the express provisions of this Act shall have force and effect in each colony as if herein enacted, and copies thereof shall be laid before the Parliament and be published in the Government Gazette of each colony.
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http://ns.ausnc.org.au/corpora/cooee/source/4-020#Original