Civil procedure in Australia

Civil procedure in Australia are the rules of civil procedure that govern procedure in the various courts and tribunals established by the Commonwealth, states and territories. These rules are historically derived from, and continues to resemble, the civil procedure in England and Wales. The rules vary to some extent between the different courts and tribunals within federal and state jurisdictions.

History

Before Federation, each Australian colony 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 codified the rules of civil procedure as delegated legislation, sometimes known as 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)[4] are quite different. In Queensland, the rules were intended to be "uniform, so far as practicable, for all three courts in the State stream"[5] – 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.[6]

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 requires |journal= (help)
  3. Civil Procedure Act 2005 (NSW) s 8; Supreme Court of Queensland Act 1991 (Qld) s 89.
  4. "UCPR Digest Qld - Uniform Civil Procedure Rules 1999". www.queenslandjudgments.com.au. Retrieved 14 December 2020.
  5. Paul de Jersey (20 June 1999). "Uniform Civil Procedure Rules Seminar: opening and overview" (PDF).
  6. Attorney-General's Department (Australia) (10 July 2015). "Uniform Evidence Acts comparative tables". Retrieved 23 July 2019.
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