Summary heading
Series notes for A10152
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 Tasmanian Registry of the High Court between 1917 and 1974.
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. In the case of
Tasmania there were two main registers of High Court cases
1. The Cause Book registered single Justice
court cases that were actions
initiated in the High Court under its original jurisdiction. The Tasmanian Cause Book lists case files
found in this series
2. 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 could therefore be registered in
the Cause Book and also in the Full Court Book of the High Court registry where
the case was heard.
By
the beginning of 1975, the Tasmanian High Court registry had 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 A10152. Subsequent
Cause case files for the Tasmanian registry can be found in series CRS A12995.
Content
As mentioned above, the subject matter of records
in this series mainly concerned the administration of Federal legislation
enacted by the Commonwealth Parliament.
This included, for example, the popular litigation area of Federal
income tax legislation.
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 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) that had to be lodged with the Tasmanian High Court
Registry. 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 a proceeding 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
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:
- Arising under any treaty
- Affecting consuls or other
representatives of other countries
- In which the Commonwealth,
or a person suing or being sued on behalf of the Commonwealth, is a party
- Between States, or between
residents of different States, or between a State and a resident of
another State
- 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
- Arising under the
Constitution or involving its interpretation
- Arising under any laws
made by the Parliament
- Of Admiralty and maritime
jurisdiction
- 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
Case files in this series dated 1917-1931 are held by the Archives but
have not yet been entered on RecordSearch. Case files 1941-1974 are on RecordSearch. This leaves an unexplained gap
(1931-1941) that needs further investigation.
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, FRASER Josephine Margaret versus HEIMERL
Terry. 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 tax* will retrieve records:(placing the
wildcard (*) immediately after the search term ensures that the database
will search on tax, taxes, taxation etc).
- Titles qualified by 'File cover only'
This series may include instances where the Archives holds 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
Some 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.
- 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.
- 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.
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
A10141). 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.
- 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, (2nd 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
[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.