Part 9Jurisdiction and procedure of courts

Part 9—Jurisdiction and procedure of courts Division 1—Vesting and cross-vesting of civil jurisdiction 40—Operation of Division (1) This Division provides in relation to— (a) the jurisdiction of courts in respect of civil matters arising under the Corporations Law of South Australia; and (b) the jurisdiction of the courts of South Australia in respect of civil matters arising under the Corporations Law of another State or the Capital Territory; and (c) the jurisdiction of courts in respect of matters arising under the Administrative Decisions (Judicial Review) Act 1977 of the Commonwealth involving or related to decisions made under the Corporations Law of a State or the Capital Territory by Commonwealth authorities and officers of the Commonwealth; and (d) the jurisdiction of courts in civil matters in respect of decisions made by officers of the Commonwealth to prosecute persons for offences against the Corporations Law of a State or the Capital Territory and related criminal justice process decisions, and so provides to the exclusion of the Jurisdiction of Courts (Cross-vesting) Act 1987. (2) Nothing in this Division affects any other jurisdiction of any court. 41—Interpretation (1) In this Division— civil matter means a matter other than a criminal matter; Corporations Law has the extended meaning given by subsection (2); judgment means a judgment, decree or order, whether final or interlocutory; lower court means a court of a State or Territory that is not a superior court; superior court means the Supreme Court of a State or Territory or a State Family Court; superior court matter means a civil matter that the Corporations Law clearly intends (for example, by use of the expression the Court) to be dealt with only by a superior court. (2) In this Division— (a) a reference to the Corporations Law of South Australia includes a reference to— (i) the Corporations Regulations of South Australia; and (ii) the ASIC Law of South Australia; and (iii) the ASIC Regulations of South Australia; and (iv) any other applicable provisions (as defined in section 3) of South Australia; and (v) this Act; and (vi) regulations made under this Act; and (vii) rules of court made by the Supreme Court of South Australia because of a provision of this Act; and (ix) rules of court applied by the Supreme Court of another State, or of the Capital Territory, or a State Family Court of another State, when exercising jurisdiction conferred by this Division (including jurisdiction conferred by virtue of any previous application or applications of this subparagraph); and (b) a reference to the Corporations Law of another State or of the Capital Territory is a reference to the Corporations Law of that other State or of the Capital Territory within the meaning of the law of that other State or the Capital Territory corresponding to this Division. 42—Jurisdiction of State and Territory Supreme Courts (1) Subject to section 9 of the Administrative Decisions (Judicial Review) Act 1977 of the Commonwealth, jurisdiction is conferred on the Supreme Court of South Australia and of each other State and the Capital Territory with respect to civil matters arising under the Corporations Law of South Australia. (1a) Despite section 9 of the Administrative Decisions (Judicial Review) Act 1977 of the Commonwealth, jurisdiction is conferred on the Supreme Court of South Australia and of each State and the Capital Territory with respect to matters arising under that Act involving or related to decisions made, or proposed to be made, under the Corporations Law of a State or the Capital Territory by a Commonwealth authority or an officer of the Commonwealth. (1b) Subsection (1a) applies to a decision made, or proposed or required to be made— (a) whether or not in the exercise of a discretion; and (b) whether before or after the commencement of that subsection. (2) The jurisdiction conferred on a Supreme Court by subsection (1) or (1a) is not limited by any limits to which any other jurisdiction of that Supreme Court may be subject. (3) This section has effect subject to section 42AA. 42A—Jurisdiction of State Family Courts (2) Subject to section 9 of the Administrative Decisions (Judicial Review) Act 1977 of the Commonwealth, jurisdiction is conferred on each State Family Court with respect to civil matters arising under the Corporations Law of South Australia. (3) The jurisdiction conferred on a State Family Court by subsection (2) is not limited by any limits to which any other jurisdiction of the State Family Court may be subject. (4) This section has effect subject to section 42AA. 42AA—Jurisdiction of Supreme Court in relation to certain decisions made by Commonwealth officers (1) If a decision to prosecute a person for an offence against the Corporations Law of South Australia has been made by an officer or officers of the Commonwealth and the prosecution is proposed to be commenced in a court of South Australia, jurisdiction is conferred on the Supreme Court with respect to any matter in which a person seeks a writ of mandamus or prohibition or an injunction against the officer or officers in relation to that decision. (2) At any time when— (a) a prosecution for an offence against the Corporations Law of South Australia is before a court of South Australia; or (b) an appeal arising out of such a prosecution is before a court of South Australia, jurisdiction is conferred on the Supreme Court with respect to any matter in which the person who is or was the defendant in the prosecution seeks a writ of mandamus or prohibition or an injunction against an officer or officers of the Commonwealth in relation to a related criminal justice process decision. (3) Subsections (1) and (2) have effect despite anything in this Act or in any other law. appeal includes an application for a new trial and a proceeding to review or call in question the proceedings, decision or jurisdiction of a court or judge; related criminal justice process decision, in relation to an offence, means a decision (other than a decision to prosecute) made in the criminal justice process in relation to the offence, including— (a) a decision in connection with the investigation, committal for trial or prosecution of the defendant; and (b) a decision in connection with the appointment of investigators or inspectors for the purposes of such an investigation; and (c) a decision in connection with the issue of a warrant, including a search warrant or a seizure warrant; and (d) a decision requiring the production of documents, the giving of information or the summoning of persons as witnesses; and (e) a decision in connection with an appeal arising out of the prosecution. 42B—Jurisdiction of lower courts (1) Subject to section 9 of the Administrative Decisions (Judicial Review) Act 1977 of the Commonwealth, jurisdiction is conferred on the lower courts of South Australia and of each other State and the Capital Territory with respect to civil matters, other than superior court matters, arising under the Corporations Law of South Australia. (2) The jurisdiction conferred on a lower court by subsection (1)— (a) is subject to the court's general jurisdictional limits, so far as they relate to the amounts, or the value of property, with which the court may deal; but (b) is not subject to the court's other jurisdictional limits. 43—Appeals (1) An appeal may not be instituted from a decision of a court of South Australia to a court of another State or of the Capital Territory. (4) An appeal may not be instituted from a decision of a court (not being a State Family Court) of another State to a State Family Court of that State or to a court of a different State or of the Capital Territory. (5) An appeal may not be instituted from a decision of a court of the Capital Territory to a court of a State. (6) An appeal may not be instituted from a decision of a State Family Court of a State to a court of the Capital Territory or of another State, or (except in accordance with the law of the State under which the State Family Court is constituted) to the Supreme Court of that State. 44—Transfer of proceedings by the Federal Court and State and Territory Supreme Courts (1) This section applies to the following: (a) a proceeding with respect to a civil matter arising under the Corporations Law of South Australia that is in a court having jurisdiction under section 42(1) or (2); (b) a proceeding with respect to a matter referred to in section 42(1a) that is in a court having jurisdiction under that subsection or in the Federal Court. (2) Subject to subsections (3), (4) and (5), if it appears to the court that, having regard to the interests of justice, it is more appropriate for the proceeding, or an application in the proceeding, to be determined by another court having jurisdiction in the matters for determination in the proceeding or application, the first mentioned court may transfer the proceeding or application to that other court. (3) If a proceeding with respect to a matter referred to in section 42(1a) is pending in the Supreme Court of a State or the Capital Territory (the relevant jurisdiction), the court must transfer the proceeding to the Federal Court unless the matter for determination in it arises out of, or relates to, another proceeding pending in any court of the relevant jurisdiction— (a) that arises, or a substantial part of which arises, under the Corporations Law of a State or the Capital Territory; and (b) that is not with respect to a matter referred to in section 42(1a), regardless of which proceeding was commenced first. (4) Even if the Supreme Court of a State or the Capital Territory is not required by subsection (3) to transfer a proceeding with respect to a matter referred to in section 42(1a) to the Federal Court, it may nevertheless do so if it considers that to be appropriate, having regard to the interests of justice, including the desirability of related proceedings being heard in the same jurisdiction. (5) If a proceeding with respect to a matter referred to in section 42(1a) is pending in the Federal Court, the Federal Court may only transfer the proceeding, or an application in the proceeding, to the Supreme Court of a State or the Capital Territory (the relevant jurisdiction) if— (a) the matter arises out of, or relates to, another proceeding pending in any court of the relevant jurisdiction— (i) that arises, or a substantial part of which arises, under the Corporations Law of a State or the Capital Territory; and (ii) that is not a proceeding with respect to a matter referred to in section 42(1a), regardless of which proceeding was commenced first; and (b) the Federal Court considers the transfer to be appropriate, having regard to the interests of justice, including the desirability of related proceedings being heard in the same jurisdiction. (6) Nothing in this section confers on a court jurisdiction that the court would not otherwise have. (7) The fact that some references in this section to the interests of justice include the desirability of related proceedings being heard in the same jurisdiction does not of itself mean that other references to the interests of justice, in this section or elsewhere in this Act, do not include that matter. 44A—Transfer of proceedings by State Family Courts (1) This section applies to a proceeding with respect to a civil matter arising under the Corporations Law of South Australia in a State Family Court (in this section called the first court) having jurisdiction under section 42A. (2) If it appears to the first court that— (a) the proceeding arises out of, or is related to, another proceeding pending in another court of a State or of the Capital Territory, and that the court in which the other proceeding is pending is the most appropriate court to determine the first mentioned proceeding; or (b) having regard to— (i) whether, in the first court's opinion, apart from this Division or a law of another State or the Capital Territory corresponding to this Division, the proceeding, or a substantial part of it, would have been incapable of being instituted in the first court; and (ii) the extent to which, in the first court's opinion, the matters for determination in the proceeding are matters not within the first court's jurisdiction apart from this Division or such a law; and (iii) the interests of justice, another court of a State or of the Capital Territory, is the most appropriate court to determine the proceeding; or (c) it is otherwise in the interests of justice that another court of a State or of the Capital Territory, determine the proceeding, the first court must transfer the proceeding to that other court. (3) Subject to subsection (2), if it appears to the first court that— (a) the proceeding arises out of, or is related to, another proceeding pending in another State Family Court having jurisdiction under section 42A in the matters for determination in the first mentioned proceeding, and that the other court is the most appropriate court to determine the first mentioned proceeding; or (b) it is otherwise in the interests of justice that the proceeding be determined by another State Family Court having jurisdiction under section 42A in the matters for determination in the proceeding, the first court must transfer the proceeding to the other court. (4) If— (a) the first court transfers the proceeding to another court; and (b) it appears to the first court that— (i) there is another proceeding pending in the first court that arises out of, or is related to, the first mentioned proceeding; and (ii) it is in the interests of justice that the other court also determine the other proceeding, the first court must also transfer the other proceeding to the other court. (5) Nothing in this section confers on a court jurisdiction that the court would not otherwise have. 44AA—Transfer of proceedings in lower courts (1) This section applies to a proceeding with respect to a civil matter arising under the Corporations Law of South Australia in a lower court (the first court) having jurisdiction under section 42B. (2) If it appears to the first court that, having regard to the interests of justice, it is more appropriate for the proceeding, or an application in the proceeding, to be determined by another court (the second court) having jurisdiction in the matters for determination in the proceeding or application, the first court may take action under whichever of subsections (3) and (4) applies. (3) If the second court is also a lower court, the first court may transfer the proceeding or application to the second court. (4) If the second court is a superior court, the first court may transfer the proceeding or application to the relevant Supreme Court and recommend that the proceeding or application be transferred by the Supreme Court to the second court. (5) The relevant Supreme Court is not bound to comply with a recommendation under subsection (4) and it may instead decide— (a) to deal with the proceeding or application itself; or (b) to transfer the proceeding or application to some other court (which could be the first court). (6) Nothing in this section allows the relevant Supreme Court to transfer the proceeding or application to another court otherwise than in accordance with section 44 and the other requirements of this Division. (6a) Nothing in this section confers on a court jurisdiction that the court would not otherwise have. (7) In this section— relevant Supreme Court means the Supreme Court of the State or Territory of which the first court is a court. 44B—Further matters for court to consider when deciding whether to transfer proceeding In deciding whether to transfer under section 44, 44A or 44AA a proceeding or application, a court must have regard to— (a) the principal place of business of any body corporate concerned in the proceeding or application; and (b) the place or places where the events that are the subject of the proceeding or application took place; and (c) the other courts that have jurisdiction to deal with the proceeding or application. 44C—Transfer may be made at any stage A court may transfer under section 44, 44A or 44AA a proceeding or application— (a) on the application of a party made at any stage; or (b) of the court's own motion. 44D—Transfer of documents Where, under section 44, 44A or 44AA, a court transfers a proceeding, or an application in a proceeding, to another court— (a) the Registrar or other proper officer of the first mentioned court must transmit to the Registrar or other proper officer of the other court all documents filed in the first mentioned court in respect of the proceeding or application, as the case may be; and (b) the other court must proceed as if— (i) the proceeding had been originally instituted in the other court; and (ii) the same proceedings had been taken in the other court as were taken in the first mentioned court; and (iii) in a case where an application is transferred—the application had been made in the other court. 45—Conduct of proceedings (1) Subject to sections 51, 52 and 52A, where it appears to a court that, in determining a matter for determination in a proceeding, the court will, or will be likely to, be exercising relevant jurisdiction, the rules of evidence and procedure to be applied in dealing with the matter are to be such as the court considers appropriate in the circumstances, being rules that are applied in a superior court in Australia or in an external Territory. (2) Where a proceeding is transferred or removed to a court (in this subsection called the transferee court) from another court (in this subsection called the transferor court), the transferee court must deal with the proceeding as if, subject to any order of the transferee court, the steps that had been taken for the purposes of the proceeding in the transferor court (including the making of an order), or similar steps, had been taken in the transferee court. (3) In this section— relevant jurisdiction means— (c) jurisdiction conferred on a court of South Australia with respect to civil matters arising under the Corporations Law of another State or the Capital Territory; or (d) jurisdiction conferred on a court of another State or the Capital Territory with respect to civil matters arising under the Corporations Law of South Australia; or (e) jurisdiction conferred on a court of a State or the Capital Territory with respect to matters referred to in section 42(1a). 46—Courts to act in aid of each other All courts having jurisdiction in civil matters arising under the Corporations Law of South Australia, or in matters referred to in section 42(1a), and the officers of, or under the control of, those courts must severally act in aid of, and be auxiliary to, each other in all such matters. 47—Exercise of jurisdiction pursuant to cross-vesting provisions A court of South Australia may— (a) exercise jurisdiction (whether original or appellate) conferred on it by a law of another State or the Capital Territory corresponding to this Division with respect to matters arising under the Corporations Law of that State or Territory; and (b) hear and determine a proceeding transferred to it under such a provision. 48—Rights of appearance A person who is entitled to practise as a barrister or a solicitor, or as both a barrister and a solicitor, in a court has, if a proceeding (in this subsection referred to as the transferred proceeding) in that court is transferred to another court under this Division or a law of another State or the Capital Territory that corresponds to this Division, the same entitlements to practise in relation to— (a) the transferred proceeding; and (b) any other proceeding out of which the transferred proceeding arises or to which the transferred proceeding is related, being another proceeding that is to be determined together with the transferred proceeding, in the other court that the person would have if the other court were a federal court exercising federal jurisdiction. 49—Limitation on appeals An appeal does not lie from a decision of a court— (a) in relation to the transfer of a proceeding under this Division; or (b) as to which rules of evidence and procedure are to be applied pursuant to section 45(1). 50—Enforcement of judgments (1) A judgment of a court of South Australia that is entirely or partly given in the exercise of jurisdiction conferred by this Division, or by a law of another State that corresponds to this Division, is enforceable in South Australia as if the judgment had been given by that court entirely in the exercise of the jurisdiction of that court apart from this Division or any such law. (2) Where— (a) a provision of a law of South Australia (not being a law in relation to the enforcement of judgments) refers to a thing done by the Supreme Court of South Australia or of another State or of the Capital Territory, a State Family Court or a particular lower court of South Australia or of another State or of the Capital Territory; and (b) that thing is done by another court in the exercise of jurisdiction conferred by this Division or a law of another State or the Capital Territory corresponding to this Division, the reference in that provision to the Supreme Court of South Australia or of the other State or Territory, that State Family Court or that lower court, as the case may be, is taken as a reference to that other court. 51—Rules of the Supreme Court (1) The Judges of the Supreme Court of South Australia may make rules of court, not inconsistent with the Corporations Law of South Australia— (a) with respect to proceedings, and the practice and procedure, of that Court under that Law; and (b) with respect to any matter or thing that is— (i) required or permitted by that Law to be prescribed by rules within the meaning of that Law; or (ii) necessary or convenient to be prescribed by such rules for carrying out or giving effect to that Law; and (c) without limitation, with respect to costs, and with respect to rules as to meetings ordered by that Court. (1a) When a lower court of South Australia is exercising jurisdiction with respect to matters arising under the Corporations Law of South Australia, the court must apply the rules of court made under subsection (1), with such alterations as are necessary. (2) When a court of South Australia is exercising jurisdiction with respect to matters arising under the Corporations Law of another State or the Capital Territory, being jurisdiction conferred by a law of another State or the Capital Territory that corresponds to this Division, that court must apply the rules of court made under subsection (1), with such alterations as are necessary. (3) When a court of another State or the Capital Territory is exercising jurisdiction with respect to matters arising under the Corporations Law of South Australia, being jurisdiction conferred by this Division, that court must apply the rules of court made under the law of the State or Territory corresponding to subsection (1), with such alterations as are necessary. Corporations Law of another State or the Capital Territory does not include rules of court; Corporations Law of South Australia does not include rules of court. 52A—Rules of the State Family Court (2) When a State Family Court of another State is exercising jurisdiction with respect to matters arising under the Corporations Law of South Australia, being jurisdiction conferred by this Division, that Court must apply the rules of court made under the law of the State corresponding to section 61A(1) of the Corporations Act, with such alterations as are necessary. (3) In this section— Corporations Law of South Australia does not include rules of court. Division 2—Vesting and cross-vesting of criminal jurisdiction 53—Operation of Division This Division provides in relation to— (a) the jurisdiction of courts in respect of criminal matters arising under the Corporations Law of South Australia; and (b) the jurisdiction of the courts of South Australia in respect of criminal matters arising under the Corporations Law of any jurisdiction. 54—Interpretation (1) In this Division— magistrate means a magistrate who is remunerated by salary or otherwise. (2) In this Division— (a) a reference to the Corporations Law of South Australia includes a reference to— (i) the Corporations Regulations of South Australia; and (ii) the ASIC Law of South Australia; and (iii) the ASIC Regulations of South Australia; and (iv) any other applicable provisions (as defined in section 3) of South Australia; and (v) this Act; and (vi) regulations made under this Act; and (vii) rules of court made by the Supreme Court of South Australia and rules of court applied by the Supreme Court of another State, or of the Capital Territory, when exercising jurisdiction conferred by this Division (including jurisdiction conferred by virtue of any previous application or applications of this subparagraph); and (b) a reference to the Corporations Law of another State or of the Capital Territory is a reference to the Corporations Law of that other State or of the Capital Territory within the meaning of the law of that other State or the Capital Territory corresponding to this Division. 55—Jurisdiction of courts (1) Subject to this section, the several courts of each State and the Capital Territory exercising jurisdiction— (a) with respect to— (i) the summary conviction; or (ii) the examination and commitment for trial on indictment; or (iii) the trial and conviction on indictment, of offenders or persons charged with offences against the laws of the State or Capital Territory, and with respect to— (iv) their sentencing, punishment and release; or (v) their liability to make reparation in connection with their offences; or (vi) the forfeiture of property in connection with their offences; or (vii) the proceeds of their crimes; and (b) with respect to the hearing and determination of— (i) proceedings connected with; or (ii) appeals arising out of; or (iii) appeals arising out of proceedings connected with, any such trial or conviction or any matter of a kind referred to in paragraph (a)(iv), (v), (vi) or (vii), have the equivalent jurisdiction with respect to offenders or persons charged with offences against the Corporations Law of South Australia. (2) Where a provision of a law of another State or the Capital Territory corresponding to subsection (1) is expressed to confer jurisdiction with respect to offenders or persons who are charged with offences against the Corporations Law of that State or the Capital Territory upon a court of South Australia, the court may exercise that jurisdiction. (3) The jurisdiction conferred by subsection (1) is not to be exercised with respect to the summary conviction, or examination and commitment for trial, of any person except by a magistrate. (4) The jurisdiction conferred by subsection (1) includes jurisdiction in accordance with provisions of a relevant law of another State or the Capital Territory, and— (a) the reference in subsection (1)(b) to "any such trial or conviction" includes a reference to any conviction or sentencing in accordance with the provisions of a relevant law; and (b) unless the contrary intention appears, a reference to jurisdiction conferred by subsection (1) includes a reference to such included jurisdiction. (5) A person may be dealt with in accordance with a relevant law even if, apart from this section, the offence concerned— (a) would be required to be prosecuted on indictment; or (b) would be required to be prosecuted either summarily or on indictment. (6) For the purposes of the application of a relevant law as provided by subsection (4)— (a) a reference in that law to an indictable offence is taken to include a reference to an offence that may be prosecuted on indictment; and (b) in order to determine the sentence that may be imposed on a person by a court pursuant to the relevant law, the person is taken to have been prosecuted and convicted on indictment in that court. (7) Subject to subsections (9) and (10), the jurisdiction conferred on a court of a State or the Capital Territory by subsection (1) is conferred despite any limits as to locality of the jurisdiction of that court under the law of that State or of the Capital Territory. (8) Subject to subsection (9), the jurisdiction conferred on a court of South Australia by a law of another State or the Capital Territory corresponding to subsection (1) may be exercised despite any limits as to locality of the jurisdiction of that court under the law of South Australia. (9) Where— (a) jurisdiction is conferred on a court of South Australia in relation to the summary conviction of persons charged with offences against the Corporations Law of this or another jurisdiction by subsection (1) or a corresponding provision of a law of another State or of the Capital Territory; and (b) the court is satisfied that it is appropriate to do so, having regard to all the circumstances including the public interest, the court may decline to exercise that jurisdiction in relation to an offence committed in another State or the Capital Territory. (10) The jurisdiction conferred on a court of another State or the Capital Territory by subsection (1) in relation to— (a) the examination and commitment for trial on indictment; and (b) the trial and conviction on indictment, of offenders or persons charged with offences against the Corporations Law of South Australia is conferred only in relation to— (c) offences committed outside Australia; and (d) offences committed, begun or completed within the State or Territory concerned. (11) In this section— Australia does not include the coastal sea; relevant law means a law providing that where, in proceedings before a court, a person pleads guilty to a charge for which he or she could be prosecuted on indictment, the person may be committed, to a court having jurisdiction to try offences on indictment, to be sentenced or otherwise dealt with without being tried in that last mentioned court. 56—Laws to be applied (1) Subject to this Division, the laws of South Australia respecting— (a) the arrest and custody in South Australia of offenders or persons charged with offences; and (b) criminal procedure in South Australia in relation to such persons, apply in South Australia, so far as they are applicable, to persons who are charged with offences against the Corporations Law of South Australia or of another State or the Capital Territory in respect of whom jurisdiction is conferred on a court of South Australia by this Division or a corresponding law of another State or the Capital Territory. (2) Subject to this Division, the laws of each other State and the Capital Territory respecting— (a) the arrest and custody in that State or Territory of offenders or persons charged with offences; and (b) criminal procedure in that State or Territory in relation to such persons, apply in that State or Territory, so far as they are applicable, to persons who are charged with offences against the Corporations Law of South Australia in respect of whom jurisdiction is conferred on a court of that State or Territory by this Division. (3) The application of laws by subsections (1) and (2) is in addition to, and not in derogation from, the application of laws effected by Part 8 or the corresponding law of another State or the Capital Territory. criminal procedure means the procedure for— (a) the summary conviction; and (b) the examination and commitment for trial and indictment; and (c) the trial and conviction on indictment; and (d) the hearing and determination of appeals arising out of any such trial or conviction or out of any related proceedings, of offenders or persons charged with offences, and includes the procedure for holding accused persons to bail; laws of each other State and the Capital Territory means the laws that apply in relation to offenders, or persons charged with offences, against the Corporations Law of the State or Territory concerned.