Div 3Miscellaneous powers

Division 3—Miscellaneous powers 29—Court may make orders to have effect of mandamus or injunction, and may appoint receivers (1) The court may grant a mandamus, or an injunction, or appoint a receiver, by an interlocutory order in all cases in which it appears to the court to be just or convenient so to do. (2) Any such order may be made either unconditionally or upon such terms and conditions as the court thinks just. (3) If an application is made (whether before, or at, or after the hearing of any cause or matter for an injunction) to prevent any threatened or apprehended waste or trespass, the injunction may be granted, if the court thinks fit, whether the person against whom the order is sought is or is not in possession under any claim of title or otherwise, or (if out of possession) does or does not claim a right to do the act sought to be restrained under any colour of title, and whether the estates claimed by both or by either of the parties are legal or equitable. 30—Damages in certain cases In any action arising out of the breach of any covenant, contract, or agreement, or instituted to prevent the commission or continuance of any wrongful act or for the specific performance of any covenant, contract, or agreement, the court shall have power to award damages to the party injured either in addition to or substitution for the injunction or specific performance, and those damages may be assessed by the court or in such manner as it directs. 30A—Power to direct payment to infant Where in any action the court determines that a party (being an infant) is entitled to recover damages from another party, the court may by final or declaratory judgment finally determining the question of liability between the parties order payment of any amount or amounts of damages, direct to the plaintiff. Any acknowledgment or receipt in writing of any moneys paid on account of any such amount or amounts pursuant to a judgment under this section shall not if the court so orders be invalid merely on the ground that the person giving the same was under the age of twenty-one years at the time of his signing or giving the same. 30B—Power to make interim assessment of damages (1) Where in any action the court determines that a party is entitled to recover damages from another party, it shall be lawful for the court to enter declaratory judgment finally determining the question of liability between the parties, in favour of the party who is entitled to recover damages as aforesaid, and to adjourn the final assessment thereof. (2) It shall be lawful for the court when entering declaratory judgment and for any judge of the court at any time or times thereafter— (a) to make orders that the party held liable make such payment or payments on account of the damages to be assessed as to the court seems just; and (b) in addition to any such order or in lieu thereof, to order that the party held liable make periodic payments to the other party on account of the damages to be assessed during a stated period or until further order: Provided, however, that where the declaratory judgment has been entered in an action for damages for personal injury, such payment or payments shall not include an allowance for pain or suffering or for bodily or mental harm (as distinct from pecuniary loss resulting therefrom) except where serious and continuing illness or disability results from the injury or except that, where the party entitled to recover damages is incapacitated or partially incapacitated for employment and being in part responsible for his injury is not entitled to recover the full amount of his present or continuing loss of earnings, or of any hospital, medical or other expenses resulting from his injury, the court may order payment or payments not to exceed such loss of earnings and expenses and such payment or payments may be derived either wholly or in part from any damages to which the party entitled to recover damages has, but for the operation of this proviso, established a present and immediate right or except where the judge is of opinion that there are special circumstances by reason of which this proviso should not apply. (3) Any order for payment of moneys on account of damages made hereunder may be enforced as a judgment of the court. (4) Where the court adjourns assessment of damages under this section, it may order the party held liable to make such payment into court or to give such security for payment of damages when finally assessed as it deems just. (5) When damages are finally assessed credit shall be given in the final assessment for all payments which have been made under this section and the final judgment shall state the full amount of damages, the total of all amounts already paid pursuant to this section and the amount of damages then remaining payable, and judgment shall be entered for the last-named amount. (6) Where the court adjourns assessment of damages under this section, any party to the proceedings may apply to any judge of the court at any time and from time to time— (a) for an order that the court proceed to final assessment of the damages; or (b) for the variation or termination of any order which may have been made for the making of periodic payments. On the hearing of any such application the judge shall make such order as he considers just: Provided that, in an action for damages for personal injury, upon an application for an order that the court proceed to final assessment of damages, the Judge to whom such application is made shall not refuse such order if the medical condition of the party entitled to recover damages is such that neither substantial improvement nor substantial deterioration thereof is likely to occur or if a period of four years or more has expired since the date of the declaratory judgment unless the judge is of opinion that there are special circumstances by reason of which such assessment should not then be made. (7) If it appears to the court that a person in whose favour declaratory judgment has been entered has without reasonable cause failed to undertake such reasonable medical or remedial treatment as his case might have required or require, it shall not award damages for such disability, pain or suffering as would have been remedied but for such failure. (8) If at any time it appears to a judge that a person in whose favour declaratory judgment has been entered and who is incapacitated or partially incapacitated for employment, is not sincerely or with the diligence which should be expected of him in the circumstances of his case, attempting to rehabilitate himself for employment any payment or payments under subsection (2) of this section shall not include by way of allowance for loss of earnings a sum in excess of seventy-five per centum of such person's loss of earnings. (9) — (a) Notwithstanding anything in the Survival of Causes of Action Act 1940, when damages are finally assessed under this section for the benefit of the estate of a deceased person where the deceased person died after action brought and declaratory judgment has been entered in favour of such person, the damages finally assessed may include such damages in respect of any of the matters referred to in section 3 of that Act as the court deems proper. (b) Where a party dies after declaratory judgment has been entered in his favour but before final assessment of his damages in circumstances which would have entitled any person to recover damages, solatium or expenses by action pursuant to Part 2 of the Wrongs Act 1936, it shall be lawful for the executor or administrator of the deceased to proceed in the same action for the recovery of such damages, solatium or expenses for the benefit of such person notwithstanding the declaratory judgment or that the deceased has received moneys thereunder, provided, however, that in any such proceedings all moneys paid to the deceased pursuant to the declaratory judgment in excess of any actual and subsisting pecuniary loss resulting to him from the wrongful act of the party held liable shall be deemed to have been paid towards satisfaction of the damages, solatium or expenses awarded pursuant to the Wrongs Act 1936 and no further damages shall be payable in respect of the injury sustained by the deceased. In any proceedings hereunder, the declaratory judgment and any finding of fact made in the course of proceedings consequent thereupon shall enure as between the party held liable and the executor or administrator of the deceased. (c) Where a party dies in the circumstances referred to in the preceding paragraph of this subsection except that the death of the deceased is not wholly attributable to the personal injury, the subject of the declaratory judgment, but was accelerated thereby, it shall be lawful for proceedings to be taken and for the court to assess damages, solatium or expenses as in the preceding paragraph but such damages, solatium or expenses shall be proportioned to the injury to the person for whom and for whose benefit the proceedings are taken resulting from such acceleration of death. (d) The court may, if the justice of a case so requires, assess damages under paragraph (a) of this subsection notwithstanding the commencement or prosecution of proceedings under paragraph (b) or (c) of this subsection and the damages so assessed shall be for the benefit of the estate of the deceased and no damages shall be awarded under paragraph (b) or (c) of this subsection. (10) In the exercise of the powers conferred by this section the court shall have regard to the facts and circumstances of the particular case, as they exist from time to time, and any allowance, or the final assessment, as the case may be, shall be such as to the court may seem just and reasonable as compensation to the person actually injured or to his or her dependants as the case may be. 30BA—Consent orders for structured settlements In an action for damages for personal injury, the court may, with the consent of the parties, make an order for damages to be paid wholly or in part in the form of periodic payments, by way of an annuity or otherwise, instead of in a lump sum. 30C—Power to award interest (1) Unless good cause is shown to the contrary, the court shall, upon the application of a party in favour of whom a judgment for the payment of damages, compensation or any other pecuniary amount has been, or is to be, pronounced, include in the judgment an award of interest in favour of the judgment creditor in accordance with the provisions of this section. (2) The interest— (a) will be calculated at a rate fixed by the court; and (b) will be calculated in respect of a period fixed by the court (which must, however, in the case of a judgment given on a liquidated claim, be the period running from when the liability to pay the amount of the claim fell due to the date of judgment unless the court otherwise determines); and (c) is payable, in accordance with the court's determination, in respect of the whole or part of the amount for which judgment is given. (3) Where a party to any proceedings before the court is entitled to an award of interest under this section, the court may, in the exercise of its discretion, and without proceeding to calculate the interest to which that party may be entitled in accordance with subsection (2) of this section, award a lump sum in lieu of that interest. (4) This section does not— (a) authorise the award of interest upon interest; or (ab) authorise the award of interest upon exemplary or punitive damages; or (b) apply in relation to any sum upon which interest is recoverable as of right by virtue of an agreement or otherwise; or (c) affect the damages recoverable upon the dishonour of a negotiable instrument; or (d) authorise the award of any interest otherwise than by consent upon any sum for which judgment is pronounced by consent; or (e) limit the operation of any other enactment or rule of law providing for the award of interest. 31—Declaratory orders No action or proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the court shall have power to make binding declarations of right whether any consequential relief is or could be claimed or not. 32—Court may order mortgage instead of sale in certain cases In any proceeding in which the court has power to order a sale of any real or personal property, the court shall have power, instead of ordering a sale, to make such order, as is just and convenient, for a mortgage of the property, with power of sale to the mortgagee; and, for the purpose of perfecting such mortgage, to order the execution of all deeds and documents in the same manner as in the case of a sale of property. 34—Court may direct sale of mortgaged property etc In any action for the foreclosure of the equity of redemption in any mortgaged property, and upon the request of the mortgagee, or of any subsequent encumbrancer, or of the mortgagor, or any person claiming under any such person, the court may direct a sale of the property, or a transfer of the mortgage debt and security, instead of a foreclosure of the equity of redemption, on such terms as the court thinks fit, and, if the court thinks fit, without previously determining the priorities of encumbrances, or giving the usual or any time to redeem: Provided that if the request is made by any subsequent encumbrancer, or by the mortgagor, or by any person claiming under such encumbrancer or mortgagor, no such sale shall be directed without the consent of the mortgagee or the persons claiming under him, unless the party making such request deposits in court a reasonable sum of money, to be fixed by the court, for the purpose of securing the performance of such terms as may be imposed on the party making such request. 35—Power to require attendance of witnesses and production of evidentiary material (1) The court may, on the application of a party to proceedings or on its own initiative, issue a subpoena requiring a person to appear before the court at a specified time and place to give evidence or to produce evidentiary material (or both). (2) A subpoena to produce evidentiary material may, instead of providing for production of the material before the court, provide for production of the material to an officer of the court nominated in the subpoena. (3) If— (a) a person fails to comply with a subpoena under subsection (1); or (b) there are grounds for believing that, if such a subpoena were issued, a person would not comply with it, the court may issue a warrant to have the person arrested and brought before the court. 36—Appointment of commissioners for taking affidavits (1) Any two or more judges of the court of whom the Chief Justice shall be one, may by commission under the seal of the court from time to time empower such persons as they think fit and necessary, whether within or outside the State, to take all such affidavits as any person desires to make before any person so empowered in or concerning any cause, matter or thing pending in the court. (2) Every person so appointed shall be a commissioner for taking oaths in all causes and matters whatsoever in every jurisdiction of the court. 38—Inspection of property in legal proceedings (1) For the purpose of any proceeding therein, the court may order a view or inspection of any land or chattel, and any judge, juryman, or other person authorised by the order, may enter on any land or premises which it is necessary or convenient to enter on for the purpose of such inspection. (2) Every person in possession of any such land or premises shall allow such entry for the purposes aforesaid, and in case of any obstruction or refusal of such entry, the person or persons so obstructing or refusing such entry, shall be deemed guilty of a contempt of court, and be liable to punishment accordingly. 39—Vexatious proceedings (1) If, on the application of the Attorney-General or any other interested person, the court is satisfied that a person has persistently instituted vexatious proceedings, the court may make either or both of the following orders: (a) an order prohibiting the person by whom the vexatious proceedings were instituted from instituting further proceedings, or further proceedings of a particular class, without permission of the court; (b) an order staying proceedings already instituted by that person. (2) Where it appears to a prescribed court that there are proper grounds for an application under this section, it may refer the matter to the Attorney-General for consideration. (3) An order under this section remains in force (subject to variation by the court)— (a) if a period for the operation of the order is fixed—until the expiration of that period or the revocation of the order (whichever first occurs); (b) if no such period is fixed—until revocation of the order. (4) Where an order is made under this section, a copy of the order must be published in the Gazette. (5) For the purposes of this section, proceedings are vexatious— (a) if instituted to harass or annoy, to cause delay, or for any other ulterior purpose; or (b) if instituted without reasonable ground. prescribed court means— (a) the Supreme Court; or (b) any other court of the State; or (c) the South Australian Employment Tribunal; and (d) any other tribunal of the State prescribed by the regulations; proceedings means civil or criminal proceedings instituted in a prescribed court. 40—Power of court with regard to costs (1) Subject to the express provisions of this Act, and to the rules of court, and to the express provisions of any other Act whenever passed, the costs of and incidental to all proceedings in the court, including the administration of estates and trusts, shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and to what extent such costs are to be paid. (2) If— (a) an action for the recovery of damages or any other monetary sum is brought in the court; and (b) the action might have been brought in the District Court; and (c) the plaintiff recovers less than an amount fixed by the rules for the purposes of this paragraph, no order for costs will be made in favour of the plaintiff unless the court is of the opinion that it is just, in the circumstances of the case, that the plaintiff should recover the whole or part of the costs of action. 41—Power to revive orders on abatement of cause When any judgment or order for the payment of any costs or money has been made in any cause or matter, and the suit afterwards becomes abated, it shall be lawful for the court or a judge, upon the application of any person interested under the judgment or order, to make an order reviving the cause or matter, and permitting the applicant to prosecute and enforce the judgment or order, upon such terms (if any) as the court or judge thinks fit.