Function and purpose

This series documented cases heard before the Full Court of the High Court of Australia that were registered at the Tasmanian registry of the High Court between 1903 and the end of 1973.  The series also included Court cases heard before a single Justice.

1. Full Court cases
The term, Full Court, referred to the number of Justices[i] hearing a case and distinguished these records from Court or Cause case records that were usually heard by a single Justice.  Section 19 of the Judiciary Act (1903) stated that any two or more Justices of the High Court sitting together constituted a Full Court.  In High Court practise, 3 or 5 justices hear appeals from State and Federal Courts and all 7 Justices sit as a Full Court for particularly important cases, including all constitutional cases[ii]. 

The Full Court heard and determined two broad categories of cases: Appeal cases and Cause cases.

·      Appeal cases

The majority of cases in this series come under the appellate jurisdiction of the High Court.  These are cases brought to the High Court to appeal against the judgement of a lower court.  If the appeal is allowed (successful) the decision of the lower court is reversed.  If the appeal is dismissed, the decision of the lower court is affirmed.

The Judiciary Act prescribed a Full Court for appeals from the following:

1. The Full Court of a State Supreme Court.  A minimum number of 3 justices were also prescribed to hear these appeals.
2. A justice of the High Court exercising the original jurisdiction of the High Court
3. A State Supreme Court exercising federal jurisdiction when exercised by a single judge
4. Any other court exercising federal jurisdiction: this included some Magistrate's courts
5. The Inter-State Commission (established by the Constitution but no longer in existence).

The Tasmanian High Court Registry recorded this series, and most of the appeals came from Tasmanian courts: predominately the Tasmanian State Supreme Court. The series also contained appeals from other State Supreme Courts if the case was lodged in Tasmania or the Full Court decided to hear the case in Tasmania. 

This series does not include appeals from the Family Court of Australia nor the Federal Court of Australia as these courts were established after the date range of this series.  Appeals from these courts will be found in the subsequent series (CRS A12995). 

Right of appeal
Until the 1984 amendments to the Judiciary Act, there was a right of appeal to the High Court from the State Supreme Courts in civil matters where the monetary or property value involved was significant (£300 in 1903) or where the outcome may have affected a person's status under laws relating to aliens, matrimony, divorce or financial debt. 

Application for special leave to appeal
Apart from those mentioned in Right of Appeal above, all other civil cases and all criminal cases, had to submit an application for special leave to appeal to the High Court.  The Judiciary Act stated that applications for special leave to appeal to the High Court could be heard and determined either by a single justice or by a Full Court.    However, in practice, the Full Court generally heard applications for special leave.  Successful applications were usually those cases with either significant legal issues or with significant irregularities in the way they had been handled by previous courts[iii]

·      Cause cases

These are cases that commenced in the High Court of Australia because they fell under the original jurisdiction of the High Court.  The Australian Constitution gave 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[iv] or prohibition or an injunction is sought against an officer of the Commonwealth
   
   

In addition, the Constitution gave 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.

The Judiciary Act stated that a single justice of the High Court can refer any case or question to the Full Court and the Full Court will have the power to hear and determine the case or question.  This was the principal route that matters within the original jurisdiction of the High Court reached the Full Court.  Cause matters were usually first heard by a single High Court judge but significant cases could then be referred to the Full Court.  Significant cases included all constitutional matters as well as all civil proceedings between Australian States and between States and the Commonwealth. 

2 Single Justice cases

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[v]. 

Single Justices could hear Cause cases and those appeal cases not prescribed for the Full Court, usually known as Court or Court Book cases.  This series includes Court cases (there is a separate series for Tasmanian Cause cases: CRS A10152).  Court cases were predominately, one of the following types of cases:

1. Taxation appeals from the Board of Review and directly from the Commissioner of Taxation,
2. Extensions of patent applications;
3. Appeals from the Commissioner of Patents and Trade Marks;
4. Applications under the Life Insurance Act

Single Justices could refer any case or question to the Full Court to ensure that legally significant or complex issues were properly considered.

Contents of Full Court and Court case files

The file covers of case files in this series usually included a printed table of contents, with one column titled “Nature of document”.  The other column provided a printed number for each document, in the order that they were filed.  This number was also written on the document.  Documents within the file displayed the full or long title on their cover page.  This title listed the names of all parties involved in the case.

The first document in appeal cases was usually the Notice of Appeal.  This document identified the previous court case and the grounds for the appeal from the verdict and judgement of that case.  In Cause cases, the first document was often a Writ of Summons. This document was issued by the court and ordered a party to appear to answer a matter that had been lodged for hearing by the court. 

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
• Judgement and Orders: the decision on a case was stated in the judgement or order of the court.  It was based on the reasons for judgement of a majority of Justices.  Where there was a tied vote, an appeal case was dismissed.  In Cause cases, the opinion of the Chief Justice or most senior Justice prevails.
• Previous court material: documents from the court or courts from which the appeal was brought – usually the Tasmanian State Supreme Court for this series. These documents usually included the judgement and reasons for judgement and often the transcript of proceedings as well as any other documents thought relevant
• Reasons for judgement: the reasoning behind the Justices' position on the case.  This could be a joint statement or individual statements by each Judge, including dissenting judgements.
• Appeal Books
  Documents relevant to an appeal case that have been bound into a volume or volumes.  Procedures and requirements for appeal books are stated in the High Court Rules. 

·             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[vi].  While some case 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 of a single Justice
• Section 18 Reference to Full Court
• Section 19 Quorum of a Full Court
• Section 20 Appeals from Judges of federal jurisdiction
• Section 21 Applications for special leave to appeal to High Court Quorum
• Section 30 Original jurisdiction conferred
• Section 34 Appeals from Justices of High Court
• Section 35 Appeal from courts of States
• Section 35A Criteria for granting special leave to appeal
• Section 38 Matters in which jurisdiction of High Court exclusive
  
  

Using the series

• RecordSearch
  Pre 1931 records in this series are not currently on RecordSearch.  All records from 1931 are on RecordSearch.
  Keywords
  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, LEE William Roy versus VAN ESSEN Lambert.  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 item note.
• Titles qualified by 'File cover only'
  In some 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.
• 1903:1930 Tasmanian Full Court and Court records
  As mentioned above, the early records in this series (dated 1918-1930) are not currently available on RecordSearch but can still be requested via the item list for consignment A10145/1.  Other Full Court records can be found in CRS A10140 (1905-1925) and A10142 (1903-1916).

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.

Physical characteristics

Each case file in the series usually had an original paper file cover, coloured light blue or grey.  Files in this series can vary from only a few pages to several volumes.  The average file is 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
  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 State 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 usually hand-written at the top of the file cover.  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 items
  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 sixth case file of 1955 has the control symbol of 1955/6 and the control symbols for the transcript is 1955/6 TRANSCRIPT.
• 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 Full Court or Court 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.     A single Justice hearing a case could refer the case 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 single Justice 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, Full Court 1930/1 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.

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 A10143).  They also hold nominal indexes.  Further research into the nominal indexes is required before the Archives can register them.
• Transcripts series
  As mentioned in Contents sub-section above, the transcripts of oral court proceedings are still held by the High Court Principal Registry.  They are apparently fairly complete from 1952 and stored in date order. 
• Series links
  These can be accessed from the series registration page.  They display the relationship of other registered series with this series.

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.
• Appeal books
  Appeal Books for High Court cases were originally filed separately from the case file.  Prior to the 2004 transfer of records to the National Archives of Australia, the Principal Registry of the High Court had begun collating the appeal books with their case file. 
  
  

Series history

• 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 rehoused 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.  Case files dated 1903-1930 have already been rehoused and entered on RecordSearch by a previous project. 
• New series registrations
  Either during 1973 or at the commencement of 1974, most High Court registries ended the practise of having separate Full Court, Court and Cause registers.  They commenced a combined register that recorded all case files.  Accordingly, one new series registration has been created for each State registry to follow on from the 3 previous series.  In the case of the Tasmanian Registry, the new combined series is CRS A12995.

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] Black shield, A R, Coper M, & Williams, G (ends) The Oxford Companion to the High Court of Australia, Oxford University Press, 2001, pp 287:288

[iii]Black shield et al, p. 288 & p. 426

[iv] 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.

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

[vi] Black shield et al, pp 682:683