Civil procedure in Australia#Commonwealth
{{Use dmy dates|date=July 2019}}
The rules of civil procedure in Australia govern procedure in the various courts and tribunals in Australia. Civil procedure in Australia was historically derived from, and continues to resemble, civil procedure in England and Wales. The rules vary between the different courts and tribunals.
History
Before Federation, each Australian colony had a two- or three-tiered judicial system with a Supreme Court at its apex.{{cite AustLII|litigants = South Australia v Totani|HCA|39|2010}} [53]. The colonial Supreme Courts followed the model of the Supreme Court of Judicature of England and Wales, as the High Court of Justice was known from the 1870s, when it was established by the Judicature Acts.{{cite report
| author = Law Reform Commission of New South Wales
| title = Supreme Court procedure
| date = 9 September 1969
| page = 7
| url = https://www.lawreform.justice.nsw.gov.au/Documents/Publications/Reports/Report_07.pdf
| access-date = 4 March 2022
}} Civil procedure in the colonial Supreme Courts was governed by rules made by the judges and known as the Rules of the Supreme Court, some of which continue in force today.For example, the {{Cite Legislation AU|WA|reg|rotsc1971281|Rules of the Supreme Court 1971}}.
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.{{Cite Legislation AU|NSW|act|cpa2005167|Civil Procedure Act 2005|8}}; {{Cite Legislation AU|Qld|act|scoqa1991304|Supreme Court of Queensland Act 1991|89}}. However, the title and structure of the relevant civil procedure rules is not uniform across jurisdictions.
For example, the {{Cite Legislation AU|NSW|reg|ucpr2005305|Uniform Civil Procedure Rules 2005}} and {{Cite Legislation AU|Qld|reg|ucpr1999305|Uniform Civil Procedure Rules 1999}} are quite different. In Queensland, the rules were intended to be "uniform, so far as practicable, for all three courts in the State stream"{{Cite web | author = Paul de Jersey | title = Uniform Civil Procedure Rules Seminar: opening and overview | date = 20 June 1999 | url = http://classic.austlii.edu.au/au/journals/QldJSchol/1999/8.pdf}} – 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.{{Cite web | title = Uniform Evidence Acts comparative tables | date = 10 July 2015 | author = Attorney-General's Department (Australia) | url = https://www.ag.gov.au/LegalSystem/Pages/Uniform-Evidence-Acts-comparative-tables.aspx | access-date = 23 July 2019}}
The following legislation governs civil procedure in each jurisdiction.
=Commonwealth=
- {{Cite Legislation AU|Cth|act|hcoaa1979233|High Court of Australia Act 1979}}
- {{Cite Legislation AU|Cth|reg|hcr2004170|High Court Rules 2004}}
- {{Cite Legislation AU|Cth|act|fcoaa1976249|Federal Court of Australia Act 1976}}
- {{Cite Legislation AU|Cth|reg|fcr2011186|Federal Court Rules 2011}}
- {{Cite Legislation AU|Cth|act|fcafcoaa2021401|Federal Circuit and Family Court of Australia Act 2021}}
- {{Cite Legislation AU|Cth|num_reg|fcafcoalr2021202101197559|Federal Circuit and Family Court of Australia (Family Law) Rules 2021}}
- {{Cite Legislation AU|Cth|num_reg|fcafcoa2lr2021202101205652|Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021}}
- {{Cite Legislation AU|Cth|num_reg|fcafcoa2r2021202101200680|Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021}}
- {{Cite Legislation AU|Cth|num_reg|fcafcoa2flr2021202101220691|Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021}}
=New South Wales=
- {{Cite Legislation AU|NSW|act|cpa2005167|Civil Procedure Act 2005}}
- {{Cite Legislation AU|NSW|reg|ucpr2005305|Uniform Civil Procedure Rules 2005}}
- {{Cite Legislation AU|NSW|act|sca1970183|Supreme Court Act 1970}}
- {{Cite Legislation AU|NSW|reg|scr1970232|Supreme Court Rules 1970}}
- {{Cite Legislation AU|NSW|act|dca1973187|District Court Act 1973}}
- {{Cite Legislation AU|NSW|reg|dcr1973236|District Court Rules 2009}}
- {{Cite Legislation AU|NSW|act|lca2007131|Local Court Act 2007}}
- {{Cite Legislation AU|NSW|reg|lcr2009180|Local Court Rules 2009}}
=Queensland=
- {{Cite Legislation AU|Qld|act|cpa2011175|Civil Proceedings Act 2011}}
- {{Cite Legislation AU|Qld|act|scoqa1991304|Supreme Court of Queensland Act 1991}}
- [https://www.queenslandjudgments.com.au/qld-ucpr Uniform Civil Procedure Rules 1999] (Qld)
- {{Cite Legislation AU|Qld|act|dcoqa1967308|District Court of Queensland Act 1967}}
- {{Cite Legislation AU|Qld|act|mca1921232|Magistrates Court Act 1921}}
=South Australia=
- {{Cite Legislation AU|SA|act|sca1935183|Supreme Court Act 1935}}
- Uniform Civil Rules 2020 (SA)
- {{Cite Legislation AU|SA|act|dca1991187|District Court Act 1991}}
- {{Cite Legislation AU|SA|act|mca1991214|Magistrates Court Act 1991}}
=Tasmania=
- {{Cite Legislation AU|Tas|reg|scr2000232|Supreme Court Rules 2000}}
- {{Cite Legislation AU|Tas|reg|mcdr1998406|Magistrates Court (Civil Division) Rules 1998}}
=Victoria=
- {{Cite Legislation AU|Vic|act|cpa2010167|Civil Procedure Act 2010}}
- {{Cite Legislation AU|Vic|reg|sccpr2015433|Supreme Court (General Civil Procedure) Rules 2015}}
- {{Cite Legislation AU|Vic|reg|cccpr2008380|County Court Civil Procedure Rules 2008}}
- {{Cite Legislation AU|Vic|reg|mcgcpr2010464|Magistrates' Court General Civil Procedure Rules 2010}}
=Western Australia=
- {{Cite Legislation AU|WA|reg|rotsc1971281|Rules of the Supreme Court 1971}}
- {{Cite Legislation AU|WA|reg|dcr2005236|District Court Rules 2005}}
- {{Cite Legislation AU|WA|act|mcpa2004368|Magistrates Court (Civil Proceedings) Act 2004}}
- {{Cite Legislation AU|WA|reg|mcpr2005417|Magistrates Court (Civil Proceedings) Rules 2005}}
- {{Cite Legislation AU|WA|reg|mccpr2005465|Magistrates Court (Minor Cases Procedure) Rules 2005}}
=Australian Capital Territory=
- {{Cite Legislation AU|ACT|reg|cpr2006256|Court Procedures Rules 2006}}
=Northern Territory=
- {{Cite Legislation AU|NT|reg|scr232|Supreme Court Rules}}
- {{Cite Legislation AU|ACT|reg|lcjr369|Local Court (Civil Jurisdiction) Rules}}
Commentary
Civil procedure is one of the Priestley 11 subjects which all Australian lawyers are required to study. There are a number of textbooks available, as well as regularly-updated commentaries for legal professionals.
- {{cite book
| publisher = Thomson Reuters
| title = NSW Civil Procedure Handbook 2021
| url = https://legal.thomsonreuters.com.au/nsw-civil-procedure-handbook-2021-ebook/productdetail/129521
}}
- {{cite book
| publisher = LexisNexis
| title = Ritchie's Uniform Civil Procedure New South Wales
| url = https://www.lexisnexis.com.au/en/products-and-services/legal-research/litigation-evidence-and-procedure/ritchies-uniform-civil-procedure-new-south-wales
}}
- {{cite book
| publisher = Thomson Reuters
| title = Principles of Civil Procedure in Victoria
| edition = 2nd | year = 2018
| url = https://legal.thomsonreuters.com.au/principles-of-civil-procedure-in-victoria-second-edition-book/productdetail/126139
}}
- {{cite book
| publisher = LexisNexis
| title = Civil Procedure Victoria
| url = https://www.lexisnexis.com.au/en/products-and-services/legal-research/litigation-evidence-and-procedure/civil-procedure-victoria
}}
- {{cite book
| publisher = LexisNexis
| title = Civil Procedure Western Australia
| url = https://www.lexisnexis.com.au/en/products-and-services/legal-research/litigation-evidence-and-procedure/civil-procedure-western-australia
}}
- {{cite web |publisher=Supreme Court of Queensland |author=John McKenna QC |title=Uniform Civil Procedure Rules Digest |url=https://www.queenslandjudgments.com.au/qld-ucpr}}
See also
References
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