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Civil procedure in Australia

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Civil procedure in Australia consists of the rules of civil procedure that govern procedure in the various courts and tribunals established by the Commonwealth, States and Territories. It is historically derived from, and continues to resemble, civil procedure in England and Wales. As with civil procedure in the United States, the applicable rules vary between the different federal and state jurisdictions.

History

Before Federation, each of the Australian colonies had a two- or three-tiered judicial system with a Supreme Court at its apex.[1] The Supreme Courts followed the model of the Supreme Court of Judicature, as the High Court of Justice was known from the 1870s (when it was established by the Judicature Acts).[2] Civil procedure in these courts was governed by rules made by the judges and known as the Rules of the Supreme Court.

State implementations of the Rules of the Supreme Court

Current civil procedure legislation

Most states have now transferred the rules of civil procedure to a modern piece of delegated legislation, sometimes known as the Uniform Civil Procedure Rules. The Chief Justice of the relevant Supreme Court is generally the chair of a rules committee with the power to amend the rules.[3] However, the title and structure of the relevant civil procedure rules is not uniform across jurisdictions.

For example, the Uniform Civil Procedure Rules 2005 (NSW) and Uniform Civil Procedure Rules 1999 (Qld) are quite different. In Queensland, the rules were intended to be "uniform, so far as practicable, for all three courts in the State stream"[4] – that is, to unify the procedure of the Supreme, District and Magistrates Court, not participate in a cooperative federalism effort like the Uniform Evidence Acts.[5]

The following legislation currently governs civil procedure in each jurisdiction.

Commonwealth

New South Wales

Queensland

South Australia

Tasmania

Victoria

Western Australia

Australian Capital Territory

Northern Territory

See also

References

  1. ^ South Australia v Totani [2010] HCA 39 [53].
  2. ^ Law Reform Commission of New South Wales (9 September 1969). "Report on Supreme Court procedure" (PDF): 7. {{cite journal}}: Cite journal requires |journal= (help)
  3. ^ Civil Procedure Act 2005 (NSW) s 8; Supreme Court of Queensland Act 1991 (Qld) s 89.
  4. ^ Paul de Jersey (20 June 1999). "Uniform Civil Procedure Rules Seminar: opening and overview" (PDF).
  5. ^ Attorney-General's Department (Australia) (10 July 2015). "Uniform Evidence Acts comparative tables". Retrieved 23 July 2019.
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