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JUDICIARY AMENDMENT ACT 1976 No. 164 of 1976 - SECT 9

JUDICIARY AMENDMENT ACT 1976 No. 164 of 1976 - SECT 9

9. (1) Part VII of the Principal Act is repealed and the following Part
substituted:-

''PART VII-REMOVAL OF CAUSES Removal by order of the High Court.
''40. (1) Any cause or part of a cause arising under the Constitution or
involving its interpretation that is at any time pending in a federal court
other than the High Court or in a court of a State or Territory may, at any
stage of the proceedings before final judgment, be removed into the High Court
under an order of the High Court, which may, upon application of a party for
sufficient cause shown, be made on such terms as the Court thinks fit, and
shall be made as of course upon application by or on behalf of the
Attorney-General of the Commonwealth or the Attorney-General of a State.

''(2) Where-

   (a)  a cause is at any time pending in a federal court other than the High
        Court or in a court of a Territory; or

   (b)  there is at any time pending in a court of a State a cause involving
        the exercise of federal jurisdiction by that court, the High Court
        may, upon application of a party or upon application by or on behalf
        of the Attorney-General of the Commonwealth, at any stage of the
        proceedings before final judgment, order that the cause or a part of
        the cause be removed into the High Court on such terms as the Court
        thinks fit.

''(3) Subject to the Constitution, jurisdiction to hear and determine a cause
or part of a cause removed into the High Court by an order under sub-section
(2), to the extent that that jurisdiction is not otherwise conferred on the
High Court, is conferred on the High Court by this section.

''(4) The High Court shall not make an order under sub-section (2) unless-

   (a)  all parties consent to the making of the order; or

   (b)  the Court is satisfied that it is appropriate to make the order having
        regard to all the circumstances, including the interests of the
        parties and the public interest.

''(5) Where an order for removal is made under sub-section (1) or (2), the
proceedings in the cause and such documents, if any, relating to the cause as
are filed of record in the court in which the cause was pending, or, if part
only of a cause is removed, a certified copy of those proceedings and
documents, shall be transmitted by the Registrar or other proper officer of
that court to such Registry of the High Court as is directed by the order.
Proceedings after removal.
''41. When a cause or part of a cause is removed into the High Court under
section 40, further proceedings in that cause or part of a cause shall be as
directed by the High Court. Remittal of causes.
''42. (1) Where a cause or part of a cause is removed into the High Court
under section 40, the High Court may, at any stage of the proceedings, remit
the whole or a part of that cause or part of a cause to the court from which
it was removed, with such directions to that court as the High Court thinks
fit.

''(2) Where it appears to the High Court that the High Court does not have
original jurisdiction, whether by virtue of sub-section (3) of section 40 or
otherwise, in a cause or part of a cause that has been removed into the High
Court under section 40, the High Court shall proceed no further in the cause
or part of a cause but shall remit it to the Court from which it was removed.
Effect of interlocutory orders, &c., before removal of cause.
''43. Where a cause is removed in whole or in part into the High Court from
another court-

   (a)  every order relating to the custody or preservation of any property
        the subject-matter of the cause that has been made before the removal
        remains in force until it is discharged or varied by the High Court;

   (b)  any attachment or sequestration of the goods or estate of a defendant
        had in the cause before the removal holds the goods or estate so
        attached or sequestered to answer the final judgment of the High Court
        in the same manner as by law they would have been held to answer the
        final judgment of the court in which the cause was commenced;

   (c)  all undertakings or security given by any party in the cause before
        the removal remain valid and effectual; and

   (d)  all injunctions, orders and other proceedings granted, made or taken
        in the cause before the removal remain in full force and effect until
        the High Court otherwise orders. Remittal of matters by High Court to
        other courts.
''44. Any matter that is at any time pending in the High Court, whether
originally commenced in the High Court or not, may, upon the application of a
party or of the High Court's own motion, be remitted by the High Court to any
federal court, court of a State or court of a Territory that has jurisdiction
with respect to the subject-matter and the parties, and, subject to any
directions of the High Court, further proceedings in the matter shall be as
directed by the court to which it is remitted. Defence in causes removed to
High Court.
''45. When a cause is removed in whole or in part from any court into the High
court, the defendant may set up by way of defence any matter that he might
have set up if the cause had been commenced in the High Court, notwithstanding
that the court from which the cause was removed did not have jurisdiction to
entertain the matter of defence or could not entertain it in the same
cause.''.

(2) Where, before the date of commencement of this section-

   (a)  a cause or part of a cause had been removed into the High Court by an
        order under section 40 of the Principal Act; or

   (b)  sub-section (1) of section 40A of the Principal Act had become
        applicable to a cause, and the cause or part of a cause was pending in
        the High Court upon that date, the provisions of Part VII of the
        Principal Act, as amended by this Act, apply in relation to the cause
        or part of the cause as if it had been removed into the High Court by
        an order under that Part.

(3) Sub-section (1) of section 40A of the Principal Act shall be deemed not to
have become applicable to a cause before the date of commencement of this
section unless the proceedings in the cause had, before that date, been
received in a Registry of the High Court upon transmission in accordance with
sub-section (2) of that section.