4-044 (Raw)

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Whereas it is expedient that the amended principles and practice of the Law of England should be extended and applied to this colony so far as the different circumstances of the two countries will permit:
4. Subject as in this Act is mentioned there shall be transferred to and vested in the court the jurisdiction which at the commencement of this Act was vested in or capable of being exercised by the Central Criminal Court, or by any Court of Assize, or by the Court of the Chief Judge of Courts of Mines. The jurisdiction by this Act transferred to the court shall include the jurisdiction which at the commencement of this Act was vested in or capable of being exercised by any of the judges of any of the said courts, sitting in court, or at chambers or elsewhere, when acting as a judge in pursuance of any statute, and all powers given to any such court or to any of the said judges by any statute, and also all ministerial powers, duties, and authorities, incident to any and every part of the jurisdiction so transferred.
8. In every civil cause or matter commenced in the court law and equity shall be administered by the court according to the rules following: - 
(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 a Court of Equity, the court, and every judge thereof, shall give to such plaintiff or petitioner such and the same relief as ought to have been given by the court in its equitable jurisdiction in a suit or proceeding for the same or the like purpose properly instituted before the passing 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 such 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, and every judge thereof, shall give to every equitable estate, right, or ground of relief so claimed, and to every equitable defence so alleged, such and the same effect, by way of defence against the claim of such plaintiff or petitioner, as the court in its equitable jurisdiction ought to have given if the same or the like matters had been relied on by way of defence in any suit or proceeding instituted for the same or the like purpose before the passing of this Act. [148] 
(3.) 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 all such relief against any plaintiff or petitioner as such defendant shall have properly claimed by his pleading, and as the court, or any judge thereof, might have granted in any suit instituted for that purpose by the same defendant against the same plaintiff or petitioner; and also all such relief relating to or connected with the original subject of the cause or matter, and in like manner claimed against any other person, whether already a party to the same cause or matter or not, who shall have been duly served with notice in writing of such claim pursuant to any rule of court or any order of the court, as might properly have been granted against such person if he had been made a defendant to a cause duly instituted by the said defendant for the same purpose; and 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 recognise and 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 equitable jurisdiction would have recognised and taken notice of the same in any suit or proceeding duly instituted therein before the passing 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 if this Act had not passed, either unconditionally or on any terms or conditions, may be relied on by way of defence thereto: Provided always, that nothing in this Act contained shall disable the court from directing a stay of proceedings in any cause or matter pending before it if it shall think fit; and any person, whether a party or not to any such cause or matter who would have been entitled, if this Act had not passed, to apply to the court to restrain the prosecution thereof, or who may be entitled to enforce, by attachment or otherwise, any judgment, decree, rule or order, contrary to which all or any part of the proceedings in such cause or matter may have been taken, shall be at liberty to apply to the court, by motion in a summary way, for a stay of proceedings in such cause or matter, either generally or so far as may be necessary for the purposes of justice, and the court shall thereupon make such order as shall be just. [149]
(6.) Subject to the aforesaid provisions for giving effect to equitable rights and other matters of equity in manner aforesaid, and to the other express provisions of this Act, the court, and every judge thereof, shall recognise and give effect to all legal claims and demands, and all estates, titles, rights, duties, obligations, and liabilities existing by the common law, or created by any statute, in the same manner as the same would have been recognised and given effect to if this Act had not passed.
(7.) The court, in the exercise of the jurisdiction vested in it by this Act in every cause or matter pending before it, shall have power to grant, and shall grant, either absolutely or on such reasonable terms and conditions as to such court shall seem just, all such remedies whatsoever as any of the parties thereto may appear to 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 so in controversy between the said parties respectively may be completely and finally determined, and all multiplicity of legal proceedings concerning any of such matters avoided.
9. The law to be hereafter administered as to the matters next hereinafter mentioned shall be as follows: - 
(1.) In the administration by the court of the assets of any person who may die after the commencement of this Act, and whose estate may prove to be insufficient for the payment in full of his debts and liabilities, and in the winding-up of any company under "The Companies Statute 1864" whose assets may prove to be insufficient for the payment of its debts and liabilities and the costs of winding-up, the same rules shall prevail and be observed as to the respective rights of secured and unsecured creditors, and as to debts and liabilities provable, and as to the valuation of annuities and future and contingent liabilities respectively, as may be in force for the time being under the law of insolvency with respect to estates placed under sequestration; and all persons who in any such case would be entitled to prove for and receive dividends out of the estate of any such deceased person or out of the assets of any such company may come in under the decree or order for the administration of such estate or under the winding up of such company, and make such claims against the same as they may respectively be entitled to by virtue of this Act:
(2.) No claim of a cestui que trust against his trustee for any property held on an express trust, or in respect of any breach of such trust, shall be held to be barred by any Statute of Limitations:
(3.) An estate for life without impeachment of waste shall not confer or be deemed to have conferred upon the tenant for life any legal right to commit waste of the description known as equitable waste, unless an intention to confer such right shall expressly appear by the instrument creating such estate:
(4.) There shall not, after the commencement of this Act, be any merger by operation of law only of any estate, the beneficial interest in which would not be deemed to be merged or extinguished in equity: [150]
(5.) A mortgagor entitled for the time being to the possession or receipt of the rents and profits of any land, not being land under the "Transfer of Land Statute," as to which no notice of his intention to take possession or to enter into the receipt of the rents and profits thereof shall have been given by the mortgagee, may sue for such possession, or for the recovery of such rents or profits, or to prevent or recover damages in respect of any trespass or other wrong relative thereto, in his own name only, unless the cause of action arises upon a lease or other contract made by him jointly with any other person:
(5a.) In any action for the foreclosure of the equity of redemption of any mortgaged property, the court may upon the request of the mortgagee, or of any subsequent incumbrancer, or of the mortgagor, or of any person claiming under them respectively, direct a sale of such property instead of a foreclosure of such equity of redemption on such terms as the court may think fit to direct; and if the court shall so think fit without previously determining the priorities of incumbrances, or giving the usual or any time to redeem: Provided that if such request shall be made by any such subsequent incumbrancer, or by the mortgagor, or by any person claiming under them respectively, the court shall not direct any such sale without the consent of the mortgagee or the persons claiming under him, unless the party making such request shall deposit in court a reasonable sum of money, to be fixed by the court, for the purpose of securing the performance of such terms as the court may think fit to impose on the party making such request:
(5b.) No action shall be open to objection on the ground that a merely declaratory judgment is sought thereby, and it shall be lawful for the court to make binding declarations of right without granting consequential relief:
(5c.) If after an action shall have been instituted in relation to any real estate, it shall appear to the court that it will be necessary, or expedient, that the said real estate or any part thereof should be sold for the purposes of such action, it shall be lawful for the court to direct the same to be sold at any time after the institution thereof; and such sale shall be as valid to all intents and purposes as if directed to be made on the trial of such action, and any party to the action in possession of such estate or in receipt of the rents or profits thereof shall be compelled to deliver up possession or receipt to the purchaser or such other person as the court shall direct:
(6.) Any absolute assignment, by writing under the hand of the assignor (not purporting to be by way of charge only), of any debt or other legal chose in action, of which express notice in writing shall have been given to the debtor, trustee, or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be and be deemed to have been effectual in law (subject to all equities which would have been entitled to priority over the right of the assignee if this Act had not passed), to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same, without the concurrence of the assignor: [151] Provided always, that if the debtor, trustee, or other person liable in respect of such debt or chose in action shall have had notice that such assignment is disputed by the assignor or any one claiming under him, or of any other opposing or conflicting claims to such debt or chose in action, he shall be entitled, if he think fit, to call upon the several persons making claim thereto to interplead concerning the same, or he may, if he think fit, pay the same into the court under and in conformity with the provisions of the "Statute of Trusts 1864" or any Act amending the same. Provided also that nothing herein contained shall be deemed to affect the provisions of the thirty-ninth section of the Act of the Parliament of Victoria numbered 474:
(6a.) Where any real or personal property shall form the subject of any proceedings in the court, and the court shall be satisfied that the same will be more than sufficient to answer all the claims thereon which ought to be provided for in such action, it shall be lawful for the court, at any time after the commencement of such proceedings, to allow the parties interested therein, or any one or more of them, the whole or part of the annual income of such real property, or a part of such personal property, or a part or the whole of the income thereof, up to such time as the court shall direct, and for that purpose to make such orders as may appear to the court necessary or expedient:
(7.) Stipulations in contracts, as to time or otherwise, which would not before the commencement of this Act have been deemed to be or to have become of the essence of such contracts in a court of equity, shall receive in the court the same construction and effect as they would have heretofore received in equity:
(8.) A mandamus, an injunction, or a writ of ne exeat colonia may be granted or a receiver appointed by an interlocutory order of the court in all cases in which it shall appear to the court to be just or convenient that such order should be made; and any such order may be made either unconditionally or upon such terms and conditions as the court shall think just; and if an injunction is asked, either before, or at, or after the hearing of any cause or matter, to prevent any threatened or apprehended waste or trespass, such injunction may be granted, if the court shall think fit, whether the person against whom such injunction is sought is or is not in possession under any claim of title or otherwise, or (if out of possession) does or does not claim a right to do the act sought to be restrained under any colour of title, and whether the estates claimed by both or by either of the parties are legal or equitable:
(9.) In any cause or proceeding for damages arising out of a collision between two ships, if both ships shall be found to have been in fault, the rules hitherto in force in the Court of Vice-Admiralty, so far as they have been at variance with the rules in force in courts of common law, shall prevail: [152]
(10.) In questions relating to the custody and education of infants, the rules of equity shall prevail:
(11.) Generally in all matters not hereinbefore particularly mentioned, in which there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity shall prevail.
SITTINGS AND DISTRIBUTION OF BUSINESS
10. The Full Court shall hear and determine - 
(1.) All motions for new trials:
(2.) All appeals from a single judge, whether sitting in court or chambers:
(3.) All appeals from the Court of Insolvency:
(4.) All appeals from County Courts and Courts of Mines:
(5.) All proceedings by way of appeal or review from General and Petty Sessions respectively:
(6.) All applications under section twenty-one of Act No. 502:
(7.) All proceedings upon or connected with caveats under the "Transfer of Land Statute":
(8.) All motions on points reserved, whether civil or criminal:
(9.) All rules returnable before the Full Court:
(10.) All business referred to the Full Court by a single judge, whether sitting in court or chambers:
(11.) All trials at bar:
(12.) And generally all causes and matters which by any rule of court shall be required to be heard or disposed of by the Full Court.
11. Any single judge sitting in court may, subject to appeal in civil or mixed matters to the Full Court, hear and determine - All motions, causes, actions, matters and proceedings not required under any Act or rules of court to be heard and determined by the Full Court.
12. Whenever the Full Court is equally divided in opinion the judgment of the court shall be given in accordance with the opinion of the Chief Justice, or in his absence of the senior judge then present.
13. The division of the legal year into terms shall be abolished so far as relates to the administration of justice, and there shall no longer be terms applicable to any sitting or business of the court; but in all other cases in which under the law now existing the terms into which the legal year is divided are used as a measure for determining the time at or within which any act is required to be done, the same may continue to be referred to for the same or the like purpose unless and until provision is otherwise made by any lawful authority. .
14. Subject to any rules of court, the court and the judges thereof respectively shall have power to sit and act at any time and at any place for the transaction of any part of the business of such court or of such judges, or for the discharge of any duty which by any Act of Parliament or otherwise is required to be discharged during or after term. And the provisions of sections sixteen and seventeen of the Act No. 502 shall apply to the court as though the court had been expressly named in such sections instead of Courts of Assize. [153]
15. Subject to any rules of court, the Full Court shall sit in Melbourne on such days as shall be necessary for the continuous and prompt despatch of the business of such court, excepting from the twentieth day of December to the first day of February following, and excepting upon Sundays, public holidays, and during the time when the business of the court shall prevent the number of judges requisite to form the Full Court from attending.
16. All such arrangements as may be necessary or proper for the transaction of the business from time to time pending before the Full Court and for constituting and holding such court shall be made by and under the direction of the judges of the said court, and in case of difference among them in such manner as a majority of the said judges, of whom the Chief Justice shall be one, shall determine.
17. The Chief Justice may by writing addressed to any judge request the attendance at any time of such judge at any sitting of the Full Court; and the judge whose attendance is requested shall attend accordingly.
18. Subject to any rules of court, sittings shall be held in Melbourne for the trial of causes and questions or issues of fact on such days and by so many judges as may be necessary for the trial of causes and questions or issues of fact so soon as possible after they are ready for trial, excepting from the twentieth day of December to the first day of February following, and except on Sundays, public holidays, and during the time when sittings in other bailiwicks shall prevent the attendance of a judge for the trial of causes in Melbourne. Sittings shall be held for the hearing of criminal trials at such times and in such places as are now or shall hereafter be fixed by law.
19. Provision shall be made by rules of court for the hearing in Melbourne at all times by a judge of the court of all such applications as may require to be immediately or promptly heard.
20. Subject to any restrictions or conditions imposed by any rules of court, any party to any cause or matter involving the trial of a question or issue of fact may, with the leave of a judge, require the question or issue to be tried and determined at sittings to be held in any bailiwick, whether central or other, as hereinafter in this Act mentioned, and such question or issue shall be tried and determined accordingly. A cause or matter not involving any question or issue of fact may be tried and determined in like manner with the consent of all the parties thereto.
21. Any judge of the court sitting for the trial of causes and issues in any bailiwick at any place heretofore accustomed or to be hereafter determined by law shall be deemed to constitute the court.
22. Any judge of the court may, subject to any rules of court and to the provisions herein contained, exercise in court or in chambers all or any part of the jurisdiction by this Act vested in the court, in all such causes and matters, and in all such proceedings in any causes or matters, as before the passing of this Act might have been heard in court or in chambers respectively by a single judge of the court, or by a judge of assize, or by a judge of the central criminal court, or as may be directed or authorized to be so heard by any rules of court to be hereafter made: in all such cases any judge sitting in court shall be deemed to constitute the court. [154]
exercise of its jurisdiction, may reserve any case, or any point in a case, for the consideration of the Full Court, or may direct any case, or point in a case, to be argued before the Full Court; and the Full Court shall have power to hear and determine any such case or point so reserved or so directed to be argued; but nothing in this Act nor in any rule or order made under the powers hereof shall take away or prejudice the right of any party to any action to have the issues for trial by jury submitted and left by the judge to the jury before whom the same shall come for trial with a proper and complete direction to the jury upon the law, and as to the evidence applicable to such issues, and the said right may be enforced by motion in the court. Any party dissatisfied with the direction of the judge to the jury may before verdict deliver an exception in writing to the judge which shall be entered upon or annexed to the copy of the pleadings delivered for the use of the judge at the trial, or to the judge's notes, with any additions the judge may make thereto; but no party shall be obliged then and so to except, and if he does so except he shall not be confined to the grounds stated in the exception on any motion to enforce the said right, and he may enforce the same by motion in the court though no exception has been delivered.
26. Any case or point in a case which for any reason may be deemed fit to be re-argued before decision, or to be re-heard before final judgment, may be so re-argued or re-heard before the Full Court, if such court so direct. The Full Court shall have power to hear and determine any such case or point so directed to be re-argued or re-heard.
27. No order made by the court or any judge thereof, by the consent of parties, or as to costs only, which by law are left to the discretion of the court, shall be subject to any appeal, except by leave of the court or judge making such order.
28. Every order made by a judge in chambers, except as in the last preceding section, may be set aside or discharged upon notice by the Full Court.
TRIAL AND PROCEDURE
29. Subject to any rules of court and to such right as may now exist to have particular cases submitted to the verdict of a jury, the court or judge may in any cause or matter (other than a criminal proceeding as aforesaid by the Crown) refer any question arising in such cause or matter for inquiry and report to any special referee to be named by the court or judge, and the report of such referee may be adopted wholly or partially by the court or judge and may if so adopted be enforced as a judgment by the court. The court or a judge may also in any such cause or matter as aforesaid in which it may think it expedient to do so call in the aid of one or more assessors specially qualified, and try and hear such cause or matter wholly or partially with the assistance of such assessors, but the court or judge shall not be bound by the opinion or finding of any such assessors. The remuneration (if any) to be paid to such referee or assessors shall be determined by the court.
Sections 30 to 32 made further provision for the use of referees or assessors. Sections 33 to 37 stipulated for rules of court (set out in their original form in the Second Schedule to the Act) and for their alteration after the commencement of the Act.) [155]
38. Subject to the Second Schedule hereto and any rules of court to be made under this Act, the practice and procedure in all criminal causes and matters whatsoever in the court, including the practice and procedure with respect to Crown cases reserved, shall be the same as the practice and procedure in similar causes and matters before the commencement of this Act. And subject as in the earlier part of this section is provided, error in criminal causes shall lie to the Full Court from the court when presided over by a single judge in like cases and in like manner as before the commencement of this Act error would lie from the Central Criminal Court or from a Court of Assize to the Supreme Court.
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