A10072

Function and purpose

This series documents court cases known as Causes that were heard by a single Justice[i] of the High Court of Australia.  Causes are lawsuits in which one party (or parties) sues another and they concern matters that fall under the original jurisdiction of the High Court.  Causes are usually initiated by a writ (a written court order).

The case files in this series were registered in the Cause Book at the NSW Registry of the High Court between 1903 and 31 December 1973.

Original jurisdiction
The cases recorded in the Cause Book were usually matters that were covered by the High Court’s original jurisdiction.  These are areas of law where a court has authority to hear and decide a case from the outset.  This contrasted with appellate jurisdiction cases known as appeal cases. Appeal cases originated in another court and were brought to a superior court to appeal against the judgement of the other court.  The original jurisdiction of the High Court is identified in the Australian Constitution and included legal responsibility for the following:

• The Constitution and its interpretation
• Matters concerning disputes between States, and between States and the Commonwealth, and between residents of different States
• Federal legislation enacted by the Commonwealth parliament. 

Please see the Related Legislation section for further details.

Single Justice cases
A single Justice initially hears most Cause cases but he or she can refer any case or question to the Full Court (more than 1 Justice and usually 3-5).  This enabled a single Justice to ensure that the Full Court heard legally significant or complex matters and that the Full Court heard all Constitutional matters[ii].  This still left a large number of cases that could be heard by single Justices.  The majority of these concerned lawsuits about Federal legislation.  Commonwealth officials initiated many of these to address a non-compliance with federal legislation.  For instance, the Commissioner of Taxation would lodge cases with the High Court in an endless quest for the payment of taxes under federal taxation law. These types of cases are covered by part 3 of Section 75 of the Constitution in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party.  As mentioned, the Related Legislation section below has full details of the original jurisdiction of the High Court.  Single Justice cases were traditionally described as being ‘heard in chambers’ and section 16 of the Judiciary Act discusses jurisdiction in chambers.  However, this did not mean that they were confidential matters.  Generally, they were open to the public and the records of these cases are treated the same as for open court hearings[iii].

The Federal Court was established in 1977, also with original jurisdiction for Federal legislation, and most of the single Justice Cause caseload of the High Court became its responsibility.

High Court records administration

This is one of many High Court case file series held by the National Archives of Australia.  Multiple series were necessary due to the administrative structure of the High Court and the different types of cases heard by the High Court.  The High Court has a circuit system and hears cases in every state and territory in mainland Australia.  Each state and territory has its own registry, one of which was designated the principal registry (the administrative headquarters of the High Court) until the establishment of the permanent principal registry in Canberra at the end of 1980.  Litigants could lodge their legal matter at the state registry where they resided or carried on business, or at the principal registry.  NSW was the principal registry from 14 August 1973 until 31 December 1980.  During this period, its registers were identified by their Principal Registry status rather than their location.

Until 1973 (in the case of NSW) and for other registries until 1974, each registry maintained 3 separate registers or ‘Books’ for High Court cases and registry staff would enter a case in the appropriate register:

1.     The Cause Book registered single Justice court cases that were actions initiated in the High Court under its original jurisdiction.

2.     The Court Book registered single Justice court cases that were mainly appeals or applications for revisions or extensions to the findings of Commonwealth officials.

3.     The Full Court Book registered court cases to be heard by more than one Justice.  They included the most significant cases including appeals from the state supreme courts and all constitutional cases.  A single Justice could refer significant cases to the Full Court.  These cases would therefore be registered in one of the single Justice registers – the Court or Cause Books -and also in the Full Court Book

The NSW registry became the Principal registry on 14 August 1973 and at the same time commenced a combined register to record all High Court cases lodged or heard at that registry.  This change in record keeping signified the end of series CRS A10072.  Subsequent Cause case files for the NSW registry can be found in series CRS A10273.

Content

As mentioned above, the subject matter of records in this series mainly concerned the administration of Federal legislation enacted by the Commonwealth Parliament.  The largest proportion of cases concerned Federal income tax legislation.  The next most frequent subject area was Patents and Trade Marks law.

Documents in case file

Most of the cases in this series begin with a writ.  These are written orders of a judge requiring specific action by the person or entity to whom or to which the writ is directed[iv]. For example, a Writ of Summons was a document issued and delivered to a defendant concerning a legal matter that had been lodged by a plaintiff with the court.  The writ explained the case brought against the defendant and commanded the defendant to have an appearance entered on their behalf.  It warned them that if the plaintiff proceeded with the case, failure to enter an appearance could lead to a judgement being given in their absence.  Therefore, the second document in a case initiated by a writ of summons was the defendant’s notice of appearance (sometimes known as the entry or memorandum of appearance).  This notified the plaintiff and the court that the defendant intended to defend the matter.  Further documents in the file record the consequent progress of the case.  If it proceeded to trial, the file would include trial documents.  Alternatively, it could include a notice of discontinuance if the plaintiff decided not to go ahead with the matter.

Documents on the case file could include the following:

• Affidavits – a written statement in place of verbal evidence.  The author is called the deponent and has to sign the statement and swear to the truth of its contents
• Exhibits – a document, photograph or other object shown in court and referred to and identified in written evidence
• Reasons for judgement – the reasoning behind the Justices’ position on the case. 
• Judgement and Orders – the decision on the proceedings was stated in the judgement or order of the Justice. 
• Transcripts of Proceedings
  The daily record of the oral proceedings in the court. They were first introduced in approximately 1920 and recorded by shorthand.  Tape recordings were introduced in the 1950s from which the official typed transcript was produced.  The transcripts provided a valuable resource and reference for Justices and legal practitioners[v].  While some files have transcripts collated with them, most do not.  They are still held by the High Court of Australia Principal Registry.
  
  Please note that many cases will only consist of two or three documents, particularly if the case was withdrawn or quickly resolved.

Related legislation

CONSTITUTION OF AUSTRALIA 1901

• Chapter 3 The Judicature

JUDICIARY ACT 1903

• Section 15 Exercise of jurisdiction
• Section 16 Jurisdiction in chambers
• Section 18 Reference to Full Court
• Section 30 Original jurisdiction conferred
• Section 40 Removal of Causes

Legislation covering original jurisdiction

The original jurisdiction of the High Court is set out in sections 75 and 76 of the Australian Constitution.  Section 75 gives the High Court the power to hear and determine all matters:

1. arising under any treaty
2. affecting consuls or other representatives of other countries
3. in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party
4. between States, or between residents of different States, or between a State and a resident of another State
5. in which a writ of Mandamus[vi] or prohibition or an injunction is sought against an officer of the Commonwealth
   
   

In addition, Section 76 gives parliament the power to make laws conferring original jurisdiction on the High Court in any matter

1. arising under the Constitution or involving its interpretation
2. arising under any laws made by the Parliament
3. of Admiralty and maritime jurisdiction
4. relating to the same subject matter claimed under the laws of different States.

Section 30 of the Judiciary Act states that in addition to the matters in which original jurisdiction is conferred on the High Court by the Constitution, the High Court shall have original jurisdiction in trials of indictable offences against the laws of the Commonwealth

Using the series

• RecordSearch
  All case files for this series held by the National Archives of Australia have been entered on RecordSearch, the Archives online database. 
  Keywords
  i) Names of individuals and companies: Case files entered on RecordSearch can be retrieved by keyword searches on individual and company names involved in the case.  Item titles on RecordSearch list the plaintiff(s) first and the defendant(s) appear after the word ‘versus’.  For example, HARDY J versus KHYAT Nazlie, trading as Khyat and Company.  The item titles are based on what the High Court called the short title – the title that appeared on the file cover.  Official court documents within the file have the full or long title and these often include extra names associated with the case.  These names have been added to the item titles on RecordSearch.  Where there is a large list of names, not all have been shown in the item title; at the end of the title the phrase “and others” has been inserted and the rest of the names have been added to the item Note.  Keyword searches on these names will retrieve the record, though the name occurs only in the Note
  ii)Types of cases: Many file titles also include reference to the type of case.  For example, in this series, keyword searches on one of the following terms: taxation, patent, trademarks will all retrieve records.
• Titles qualified by ‘File cover only’
  In many instances, the Archives hold a file cover only (the contents having been removed, most often to be incorporated with records of a later hearing) and this has been noted after the item title entered in RecordSearch.  If the file cover indicates where the papers have been sent, this will usually be included in the title field.  Otherwise, the High Court Principal Registry may be able to identify the file location via the registers.

Physical characteristics

Each case file in the series usually has an original paper file cover, coloured light blue or grey, with “In the High Court of Australia” or similar printed at the top.  Underneath this, appears the file number (as discussed in the System of arrangement and control section below).  This is followed by the short title (usually Name versus Name – for example, Jones v Smith).  Below this is a printed table of contents in two columns.  The column on the left contains a pre-printed number sequence that provides a number for each document in the order that they were filed; this number was also written on the relevant document within the file.  The column on the right (headed “Nature of document”) provides a space for a document description to be entered against each number as the documents are accumulated on the file. 

Files in this series can vary from only a few pages to several volumes.  Most files are less than 100 pages.

Many of the files in this series are still folded lengthwise in two and tied with tape, which is the manner they were maintained while active cases - presumably to aid portability.  This is not an optimal state for long-term preservation and each item requires professional attention.  Therefore, when a researcher at the National Archives of Australia requests a file, it will usually need to go to the Preservation section first for treatment to unfold the file.

The case files can include plans, photographs and other illustrative material used as exhibits in the case.

System of arrangement and control

• Control symbols
  1903/1 –1973/66:  The record keeping system of the High Court Registry controlled case files by means of an annual single number system, with the year as the second component.  However, due to limited computer functionality at the time the data entry of this series was first begun, all the items of this series are shown in the Archives online database with the year as the first component.
  
  As each registry created case files for each type of case (Cause, Court and Full Court), and all of these were controlled by an identical annual single number system, it was necessary also to specify the registry and type of case to provide a unique control for each case file.  This was particularly important, as there was frequent movement of files between High Court registries.  The registry and case type information was hand-written at the top of the file cover.  In this series, it was usually written as NSW Cause Book or NSW Cause.  This information was not incorporated as part of the file number and the Archives has not included it in the control symbols in RecordSearch.  However, the series registration contains this information and the series number is always included as an essential part of Archives record identification and record citation.
• Case files with multiple physical units
  In some instances, the case file consists of a number of physically discrete parts.  In these cases, a suffix has been added to the parent control symbol as required to create a uniquely identifying control symbol for each part.  For example, the third case file of 1916 was controlled as 1916/3 PART 1 and 1916/3 PART 2.
• Case files with more than one record number

This occurred when the case was registered in more than one High Court series.  There were two reasons for this:

1.     Cases were usually lodged in the home state of the instigator of the court action but the High Court may have heard the case in a different state.  The file was therefore transferred to the registry of the second state, and on receipt in that state it was re-registered with a new identifying record number in the Cause Book for that state.  The original control was not cancelled or obliterated since it remained an important element of the identity of the file.  If the case file was subsequently returned to the original registry the file would revert to its original control and be stored accordingly.

2.     The single Justice hearing the Cause case frequently referred them on to the Full Court.  The case would then be allocated a record number in the Full Court Register.  The information for both record numbers was recorded in the relevant Cause Book and Full Court Book (the registers) and on the file cover – the original number in the standard position and the latter number at the top of the file cover, together with the relevant registry and register.

When a hearing was concluded, the normal practice was to return the file to the State registry where the case was originally registered.  However, this did not always occur.  Therefore, the identification of the ‘active’ control symbol by the Archives was based on which record keeping system the file was found to be physically part of at the time of transfer.  The other record number has been inserted in the alternative record number field of the RecordSearch database, so that searching by this number will also retrieve the record.

Where the file cover citation was not complete (for example – Cause 1903/1 but no registry indicated), the Archives was unable to insert the citation as an alternative record number as the relevant series was not identified.  Instead, the Archives included the incomplete information as an item note.

• References to record numbers for other case files
  A single High Court justice may have heard a case and at a later date, participants appeal to the Full Court.  In this instance, the two cases are separate entities and the two case files remained separate.  However, the Full Court case record number was sometimes noted on the single justice case file cover and vice versa.  This file reference has been included as an item note.
• New CRS series for combined register
  As mentioned above in the Function and Purpose section, each High Court registry by 1974 had commenced a combined register that recorded all case files lodged or heard at that registry.  This change in record keeping prompted a new series registration for each State registry to follow on from the 3 previous series.  The new series for NSW was CRS A10273, and commenced on 14 August 1973, and included all Full Court and single Justice cases.
  
  

Relationships with other records

• Control records
  The control records for this series are the registers that are still held by the Principal Registry of the High Court of Australia (CRS A10222).  They also hold nominal indexes.  Further research into the nominal indexes is required before the Archives can register them.
• Transcripts
  As mentioned in the Contents sub-section above, most transcripts are still held by the High Court Principal Registry.  They are apparently fairly complete from 1952 and stored in date order.  Case files in this series may include copies of transcripts but another copy should be held in the relevant transcript series (CRS A13186)
• Series links
  These can be accessed from the series registration page.  They display the relationship of other registered series with this series.

Access conditions

Under Section 19 of the Archives Act, the access provisions of the Archives Act do not cover court records unless Regulations have been made.  However, since 1996, the Archives has had an agreement with the High Court that enables the Archives to give access to some records of the High Court, in accordance with Court Rules.  This agreement applies to records in Archives custody only.  The records in this series were presented in open court and consequently, the subject matter has always been in the public domain.  (Open court included hearings in chambers before a single Justice).  Therefore, the 30-year rule, which applies to the generality of Commonwealth records, has not been applied under the terms of this agreement.  Nevertheless, each file is examined before public release to ensure that no material is on the file that was not presented in open court and to identify any suppression orders that require material on the file to remain confidential.

Custodial history

Centralisation of High Court archives in Canberra
Prior to 1980, each State Registry retained its own files, including the case files and registers.  When the Principal Registry moved to Canberra in 1980, the archives of the NSW and Victorian Registries were also moved there.  The archives of other State Registries were moved in 1981.

Series history

• 1903-1930 records
  Archives staff rehoused these early records in acid free folders and containers, and entered item descriptions and transferred them from the High Court in 1996 and 1997.  During 2005, item titles were made consistent with later records.  This included the addition of all names of individuals and companies connected with each case.
• High Court Project
  As part of the High Court of Australia Centenary in 2003, the High Court provided funding for a project to transfer to the National Archives of Australia all case files dated 1931-1980. The project commenced in July 2004 and was completed in June 2005.  The project included rehousing the records in acid free folders and containers to enhance the long-term preservation of the files.  The project also entered all case files as items in the National Archives’ online database, RecordSearch.

Additional information

Other sources of information about these records
Commonwealth Law Reports – available at major Australian libraries
Australasian Legal Information Institute: High Court of Australia – selected Reported and Unreported Decisions – online at http://www.austlii.edu.au/au/cases/cth/HCA/

Sources

Australian Government, Attorney General’s Department, SCALEplus – Law Resource, Commonwealth of Australia 2004, published online at http://scaleplus.law.gov.au/

Blackshield, A R, Coper M, & Williams, G (eds) The Oxford Companion to the High Court of Australia, Oxford University Press, 2001

Marantelli, S & Tikotin, C, The Australian Legal Dictionary, (2^nd ed.) Edward Arnold Australia, 1985

Quick, Sir John & Groom, Littleton E, The Judicial Power of the Commonwealth with the Practice and Procedure of the High Court, Charles F Maxwell, 1904

Endnotes

 

 

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[i] Justice is the title for judges of superior courts including the High Court of Australia and the State Supreme Courts.  In transcripts of cases, the ‘J’ after a surname only refers to justices, not judges of lower courts.  For example, Murphy J:  This is read as Mr Justice Murphy.

[ii]Blackshield, A R, Coper M, & Williams, G (eds) The Oxford Companion to the High Court of Australia, Oxford University Press, 2001, pp 287-288

[iii] Advice from High Court Registry 12/12/05

[iv]Law.com.dictionary http://dictionary.law.com/default2.asp?typed=writ&type=1 published on the internet by ALM, 17 August 2005

[v] Blackshield et al, pp 682-683

[vi] Where a public authority is requested to perform its public duty but the request is refused, an Order or Writ of Mandamus can be obtained from a superior court compelling the authority to perform its duty.