The Pamphlet Collection of Sir Robert Stout: Volume 50
Federal Judgments Bill
Federal Judgments Bill.
Mr. Berry: In rising to move the second reading of the Federal Judgment Bill, I desire to state that I will not ask the Council to go into committee upon it this morning, but when we do go into committee upon it l propose to ask the Council to make certain amendments in the bill as circulated. The bill, as circulated, deals with judgments of the Imperial Court, as well as the Supreme Courts of the various colonies. In committee, I shall ask the Council to agree to our amendment which will confine the operations of the bill to judgments of the Supreme Courts alone. I may mention that this subject was discussed pretty fully at the conference of delegates from the various colonies, held in 1881. I remember that the principle of judgments of the Supreme Courts running through the various Australasian colonies was adopted. At that sitting of the conference the representative of Tasmania submitted a copy of an Act passed in this colony embodying the principle of the judgments obtained in the Supreme Courts of any of the Australasian colonies running through Tasmania. That was passed here, I think, in 1878 and a copy of the Act appears on the proceedings of the conference in 1881. It was pretty well understood that the various delegates would move their various Governments, on their return, to pass a similar Act. They did not do so, however, as so many other matters of importance interfered. Though the approval of the conference was unanimous at the time of separation, the exigencies of the various Governments, and the matters of local importance that came before them, prevented the carrying out of the arrangements and agreements come to at the conference. While we all deplore this unfortunate state of things, we trust the Federal Council will be able to remedy it in the future. (Hear, hear.) I do not know that it will be necessary for me to say anything more. The title of the bill indicates pretty nearly its scope. It is simply to enable proceedings that have been taken, or trials that have taken place, or judgments obtained in any of the colonies of the federation, to have validity in the other federal colonies. I will not ask for a committee this morning, but make it an order of the day for to-morrow, when I will move an amendment in the bill as circulated which will confine its operations to judgments of the Supreme Courts. I move the second reading of the bill.
Mr. Dodds said:—I am glad to hear from the hon. gentleman who introduced the bill, that he intends in committee to submit certain alterations, and I trust he will see his way clear to make other amendments than those he has intimated to us. The hon. gentleman is quite right in saying that the Parliament of Tasmania passed an Act in the year 1878 dealing with this question, by which judgments obtained in the Supremo Courts of the other colonies might, on certain forms being observed, and certificates being registered within twelve months, have steps taken in regard to them as if they had been obtained in the Supreme Court of Tasmania. In this respect, I think Tasmania was the only Colony loyal to the decisions of the the Sydney Conference, and it is exceedingly doubtful to my mind, whether the law, as it now stands in Tasmania, provides all the safeguards which should be provided, and whether it would not be better to revert to the law at present existing in Queensland, and which was the law of Tasmania in 1857. That law requires that notice shall be given to the debtor before any steps can be taken to enforce in one colony the judgment of the Supreme Court of another colony. It will be seen by reference to the Intercolonial Judgments Act of this Colony and to the provisions of the bill now introduced that a very summary method of obtaining execution on a judgment is provided, and that there is in point of fact no necessity for prior notice being given to the debtor that proceedings have been taken against him. It seems to me that the law of Queensland, and the law as it originally stood in Tasmania, would be better than this proposal. I should have liked to have heard from the hon. gentleman whether he proposes in this bill to provide for judgments being registered so as to become charges upon land. The bill appears to me to be silent upon the question, and I think if we make provision at all we should make it as full and remedial as possible, and give power to the judgment creditor to charge land held by the debtor in any colony within the federation. I hope these questions will be considered by the hon. member before he asks us to go into committee. I have again to remark in reference to this bill, as I have already remarked in reference to another measure, that it behoves us to be very careful in passing into law any measure that has not received the sanction, so far as the sanction can be obtained, of the people of the different colonies for whom we are legislating. This subject has been discussed at conferences previously held, and it has appeared to be the general opinion that it is desirable to have such a bill as this passed into law. But, on the other hand, no colony represented at the conference has acted on its decision, except Tasmania, and one might infer from that that it was not the desire of the other colonies to pass such a measure as this. It seems to show a desire to rely upon the old state of things, or on such a provision as that which exists between Victoria and Tasmania, where by registration of a memorial a judgment creditor may become entitled to execution and to all the remedies in the other colony which he would be entitled to in his own colony. Perhaps my hon. friend will think of this also before he asks us to legislate upon the subject. I think it is highly desirable, however, that we should discuss these matters, whatever we do in regard to giving them the force of legal enactment.
Mr. Lee Steere said: It appeal's to me that in dealing with this and other purely legal matters the lay members of the Council must rely in a great measure on the opinion of the legal representatives, although I am able to understand the general scope of this page 47 bill and the advisability of bringing the matter before the Council, and of passing it into law. My own impression is that—at any rate in the colony I represent—if the scope of the bill extends to the local courts, which are Courts of Record, as well as the Supreme Court, it would be better for us. In Western Australia, in consequence of its large extent, it is inconvenient to bring many actions in the Supreme Court of the colony, and they have to be brought in the local courts established to recover debts up to £50, and which it is now desired to extend up to £100. At the same time it will be hard if a man recovers £50, and is not able to enforce it out of the colony simply because the action was not brought in the Supreme Court, whereas the law would allow a verdict for a smaller sum to be so enforced if brought in the Supreme Court. That would be making one law for the rich and another for the poor. I am quite willing to bow to the decision of the legal gentlemen who have considered the question, if they think it will be better for the provision of the Bill to be confined to the Supreme Court. If, then, there is any desire to extend the scope of the bill, there will be an opportunity between this and next session of the Council of expressing such views, and no doubt the Council will pay every consideration to those views, and then the Council will, if it thinks it wise and expedient to do so, extend it as it was intended to be when first introduced into the Council.
Mr. Griffith said: I feel a great deal of difficulty in regard to this bill. I believe that what has given rise to the introduction of a bill of this kind has been principally the matter referred to by the hon. member from Western Australia—the case of local courts, the judgments of which there is at present no means of enforcing beyond the colony. That difficulty has long been complained of as between South Australia and Victoria, and though I was not aware of it before now, in Western Australia. With respect to the judgments of the Supreme Courts, they are already enforced in all the Australasian colonies except those of Fiji. Only in the case of Fiji is there any exception, and the reason of that is that the Acts were passed before Fiji became a colony. I am not aware whether the Tasmanian law recognises the judgments of Fiji or not. So that so far as the judgments of the Supreme Courts are concerned, there seems to be no necessity for action. As to local courts, it is easy to give reasons why under similar circumstances the judgments should be enforced, but the matter requires grave consideration. For instance, in Queensland there are courts called Small Debts Courts or Courts of Petty Sessions, and they have jurisdiction in matters up to £30. These Courts may be held before any two justices of the peace, but that does not necessarily indicate a highly competent tribunal. It might happen that a judgment might be obtained improperly, and if it is asked that the Courts of another colony shall enforce a judgment of that sort without further scrutiny or notice to the defendant, the action is not one to be taken without grave consideration. There are courts in the other colonies of the same character as these. They are good for what they have to do, and what they do in their own colony is subject to review, and if they make mistakes the mistakes can be corrected. But if we allow the judgments to be transferred greater difficulties may arise. I mention this, not to say that I am opposed to the principle, but because it requires grave consideration before we can actually see the effect of it. It has lately been the practice of the Imperial Government, when proposing to introduce into the Imperial Parliament any measure affecting the colonies, to cause copies of the draft bill to be sent to the Governments of the colonies which are to be affected by it. When by this means they have obtained a consensus of opinion, and ascertained what are the alterations desired, a bill is introduced which is found to be agreeable to everybody. I have pointed out two difficulties with respect to the inferior courts and to the Supreme Court of Fiji, but another question comes in, whether judgments ought to be allowed to be enforced in any case without notice being given to the defendants, and there is a good deal to be said on both sides on this point. We all know that judgment is often obtained against a man without personal service. The Court in which such judgment is recovered takes such steps as it thinks necessary to see that the defendant had notice of the proceedings before judgment was obtained against him. But the Court might be deceived, and if we are going to allow service of process beyond the jurisdiction of the Court in which it is issued, this is all the more necessary. Suppose a writ were issued in Tasmania to be served in Western Australia, and it is served there, or evidence is brought to the Court in Tasmania that satisfies it that the defendant was served with the writ, or that he knows all about it. Yet the man might not be in Western Australia at all, but in Queensland, and the first intimation that he might have of the judgment would be the notice that his property in Queensland was for sale by the sheriff. That would not be pleasant to him, nor would it be creditable to the legislation under which it could take place. I remember a case of this sort, where a person in the public service was absent from the capital of the colony for a long time, some months, and when he came back and applied for his salary, he was informed that it had all been paid over to a creditor under an execution, and when he made further enquiry, found that the plaintiff who had obtained his salary was a man he did not know, and with whom he had had no transactions at all.
Mr. Berry: Did that all take place in one colony?
Mr. Griffith: Yes. It all took place in Queensland. Of course there was little or no difficulty in getting the judgment set aside, but he could not get the money back again. That was not in the power of that court, or any court in the world, as the plaintiff had not got it This was another point which required careful consideration. The hon. member who introduced the bill said he proposed to make some amendments in committee, but it would be very convenient to see them in print before hon. members went on with the bill, and having regard to the difficulties which had been pointed out I doubt whether it would not be better to have a deliberate opinion from each of the colonies before taking any final action. I throw this out for the consideration of the Council. It is much more important that we page 48 should make no mistakes than that we should submit ourselves to the blame of not having done enough in the present session, especially in a matter of as much consequence as this, when it is proposed to make a distinct change in the laws of two or three of the colonies.
Dr. Macgregor said: Mr. President,—It will have been gathered, from what has already been said by hon. members, that this bill is a very important matter for the colony of Fiji. It is a fact, I believe, that none of the other colonies have provided for the execution of judgments, within their jurisdiction, of the Supreme Court of Fiji. On the other hand, Fiji has made provision for the execution of the judgments of the Supreme Court of the other colonies within Fiji. In 1875 an ordinance was passed in Fiji providing, on precisely similar lines to those of the Queensland Act, for the registration of judgments and putting them into execution. When, under this ordinance, a judgment emanating from another colony has been registered in the Supreme Court, a summons is issued to the defendant, and he is asked to go before the Court to show cause, if he can, why the execution should not be issued. If cause is not shown to the satisfaction of the Supreme Court, execution is ordered, and plaintiff and defendant are put very much in the same position as they would be if the action had arisen originally in our colony. That, I believe, is on identical lines with the Queensland Act, of which ours is really only a transcript, with a few unimportant verbal alterations. Advantage has been taken of our local Act by people living in the other Australian colonies, and we have thus felt that we were put at a very great disadvantage in not having the judgments of our Supreme Court recognised in the other colonies. It appears to me to be just one of those questions with which the Federal Council should deal, for it will give to us that relief which we so much desire in this matter. Our ordinance, like the Queensland Act, deals only with judgments of the Supreme Court, and it seems to me to be a question requiring very great consideration, indeed, whether the bill now before the Council should be made to embrace the judgments of the lower courts. Perhaps in the case of Fiji there would, as regards judgments of the inferior courts, be much less difficulty than in the other colonies, on account of the somewhat peculiar nature of our judicial arrangements. All cases in the inferior courts are heard by stipendiary magistrates, who are ex officio Commissioners of the Supreme Court, and have a jurisdiction extending up to a maximum of £50. But all cases in which judgment is given for any sum between £10 and £50 are sent to the Supreme Court for revision, when the Chief Justice may order any part of the case or the whole case to be reheard, or, if he deems it necessary, may order the case to be heard in the Supreme. No execution can issue until the case has been revised in the Supreme Court. Probably, therefore, there would be less difficulty in dealing with judgments from the inferior courts of Fiji than there would be in the other colonies. But it is a matter requiring very great care, and I should hardly be prepared to include at first the decisions of the lower courts. At the same time I hope and trust that, as far as the decisions of the Supreme Courts are concerned we shall now make a provision that will be universally applicable to all the colonics in the federation. I am sure that the colonists of Fiji would be very much disappointed indeed if an Act were not passed dealing at all events with the judgments of the Supreme Court.
Mr. Dickson said: Mr. President,—From the discussion that has taken place it would appear that the bill as it now stands would be a questionable benefit to three of the colonies, and will only benefit Fiji. There is no doubt it is a very large question, but the key-note seems to have been struck by the hon. member from Western Australia as to whether the bill should not apply to the judgments of the lower courts. That seems to me the chief reason why such a bill as this should pass, if it passes at all, so far as the federated colonies on the mainland are concerned. The dangers or evils that may ensue from such a system have been very clearly pointed out by the Premier of Queensland, and I am of opinion that our wisest course would be to affirm the principle of the bill by allowing it to pass its second reading, and then refer it to a committee, their amendments to be taken into consideration at a future session. I do not think it would be wise to go into a large amount of legislation of this character in the present session. It is not demanded of us. The colonies which have sent representatives to this Federal Council desired to sec the Council established upon a firm basis with a view to future proceedings. Certainly, I do not think they expect us to commit them to a measure such as this till they have had an opportunity of ventilating it for themselves and expressing their own opinions upon it. I have no wish to prevent public business being proceeded with, but I desire it to be proceeded with in a manner which will be satisfactory to the federated colonies and creditable to ourselves. I deprecate hasty legislation, which is not demanded from us at the present time. I trust my remarks will not lead hon. members to infer that I consider this an unnecessary measure. I think that in an amended form it will be a very great benefit, but that form is a matter for serious consideration, and that consideration we cannot give in the limited time at our disposal this session. I will, therefore, suggest that the bill be allowed to pass its second reading, and that the legal members especially should be invited to consider it and formulate their amendments to it, and their report may very well be taken as the groundwork of legislation on the subject in a future session.
Mr. Douglas: I think the better way of dealing with a bill of this description would be to remit it to a committee of the legal members of the Council, in conjunction with the Council, in order to compare the existing law of the various colonies on the subject, to see how far this measure can be improved upon. In some respects this bill would not be an improvement on the existing law, but rather the reverse; and I think it better that the mover, and the member for Queensland (Mr. Griffith) and the representative of Tasmania (Mr. Dodds), should form a committee to report on the bill, so that we page 49 could amend it in accordance with the result of their enquiries and deliberations. We shall then know exactly how we stand. In this colony we have three descriptions of inferior courts. In Hobart we nave a court presided over by the police magistrates, taking cases up to £10; then, also in Hobart. We have a Small Debts Court, also presided over by the Police Magistrate. On the other side of the island there is a commissioner who attends five courts. And in other portions of the colony there are Courts of Petty Sessions, It would be inadvisable to extend the jurisdiction of some of those inferior courts.
Mr. Lee Steere: This bill only deals with courts of record.
Mr. Douglas: The Courts of Petty Sessions are presided over by the magistrates who may happen to be there, and it certainly would not do to extend their jurisdiction under this bill. As, therefore, according to the mover, this bill will have to be completely altered before it is presented to the Council again, it would be very much better to refer it at once to a select committee such as I have suggested. A bill of this sort must be framed in a most careful manner, especially as our present law is in some respects much better than that which is now proposed to be substituted for it. If the hon. member does not do so, I shall, after the second reading is passed, move that the bill be referred to a select committee to bring up a report on it and an amended bill.
The President: I should like to say a word or two on this subject, as I think it was understood at the opening of the session that the President should not be altogether precluded from taking part in the debates. That this subject requires legislation must, I think, be evident from the fact that the convention unanimously agreed that it should be one of the subjects introduced into the bill submitted by the convention to the Imperial Government. Not only so, but it is one of the subjects which the convention decided should be dealt with by the Federal Council. It is one of the six subjects-now seven, I think—which were remitted by the Adopting Bill itself, without any special reference to the local Parliament, to this Council. Therefore, it appears to me, that the subject was considered not only ripe for discussion, but ripe for legislation. It is one of those subjects which, the Convention thought, might not only be safely remitted to the Federal Council, but might be so safely remitted without having previously filtered through the local legislatures—being one of the "a b c" clauses. That being the case it appears to me, it must be admitted, in the first place, that it was found by the convention that there was a necessity for legislation on this subject. Some remarks have fallen from hon. members which seem to indicate that the bill is surplus, at all events so far as Supreme Court judgments are concerned, as that they can be already enforced in the various colonies, except Fiji. I agree very much with the remarks of Mr. Le Steere that all the value of this bill will be lost if it does not enforce the judgments of inferior courts. In consultation with my colleague, and in discussion outside which has taken place on this subject, there has been a general feeling that the bill would not be complete unless it did embrace what it does embrace, viz., the judgments of all Courts of Record throughout the colonies. I think that the feeling which Mr. Dickson has expressed is uppermost in the minds of all of us, viz., that we must not proceed to legislate unless we think we can carry the public feeling of the federated colonies along with us. That feeling, I think, is very strong. To make a mistake in regard to it would be a very sad mistake indeed, and, therefore, I thoroughly hold with those gentlemen who desire to walk warily and cautiously, and would rather that the Council should be blamed for having done little, than blamed for doing something wrong. At the same time we must not be too timid in acting, where we can see our way to do so. The effect of a law of this sort in reference to small debt cases would be felt more in the immediate neighbourhood of the boundaries of the various colonies. Take, for example, Echuca and Moama, the two border towns over the Murray, one in New South Wales and the other in Victoria. Supposing New South Wales was in the union, we all know the good result that would follow, and it would be the same between South Australia and Victoria. We know that small debtors are in the habit of crossing the border line to evade, it may be, their grocer's bill or other small amount, an amount which, although trifling in itself, is of importance to the creditor, and those people are exasperated by those men, who have merely to cross an imaginary line to get out of jurisdiction and free from the judgments of the courts. I am quite sure that if a bill of this sort was in operation we would have a larger number of the people residing on the border-lands of each of the colonies, supporting the action of the Federal Council, and feeling that this Council was good for Australia. On the other hand, I cannot help feeling that if there be difficulties, as has been mentioned, that the legal members of the Council must be relied upon. If there be difficulties, I would rather proceed slowly and by degrees, and go on in the meantime with the judgments of the Supremo Court, leaving the other matter to a future session but then, again, Mr. Griffith or Mr. Dickson seems to indicate that at the present time this law would be surplusage, or almost so, if confined to the Supreme Court Now, I understood in conversation with several members of this Council in private, and also from conversation with several legal gentlemen, that it would not be so, because I understood that whilst at the present time process now existed by which judgments could be enforced, it was by a roundabout process, not at all satisfactory, and that in point of fact when a judgment was registered, and its execution followed thereupon, if you had to take the judgment to another colony, you had to apply for an issue upon a new action. (No.) I was under that impression, and I have taken every care to get full information on this subject. I was under the impression that so far as the Supreme Court judgments were concerned that this bill would be of great value.
Mr. Dodds: It would secure uniformity of practice.page 50
The President: That would be a very great point. Mr. Griffith has illustrated his argument by a case in his own colony which tells against present law as much as against the new federal law. If he shows that such would result I would desire to point out that in the 8th clause of this bill it is proposed to give the court authority and full power to stay execution in the event of good cause being shown. In reference to giving notice to the debtor before proceeding to register the judgment. I do not know whether that is provided for, but it would be a simple thing to do so in committee, and care must be taken that the interests of all persons, debtors included, must be carefully protected. It would never do to leave anyone open to have an execution or judgment proceeded with in his absence. I think care has been taken in that other bill—the service of Civil Process Bill—to provide a good deal of security in regard to this matter. I think that the suggestion made by Mr. Douglas is a most excellent one, and if the hon. member who moved the second reading of the bill can see his way to adopt that course I think it will be exceedingly satisfactory. The bill need not be shelved. There is time during the intervals of sitting here to do that which was done most effectively at the convention in regard to the Enabling Bill. That bill was the result of the labours of a Select Committee of the convention, and a more excellent bill I do not think ever was prepared so hastily or speedily. I do not use these words in their obnoxious meaning—no such thing; it was done quickly and well, and nothing astonished me so much in going through that bill from time to time, and as various circumstances arose to direct special attention to special features in it, to find that there was not a hitch in it, and that the bill substantially carried out almost everything that was proposed and expected, and that although it was not altered in any material sense by the Imperial Government and Parliament, it has come here to us perfect, so far as its application to our needs is required. Therefore, I suggest on the second reading being passed that the course suggested by Mr. Douglas be adopted.
Mr. Berry: I quite concur in the suggestion of the hon. member for Tasmania, Mr. Douglas, that it will be as well in the circumstances that the bill now read a second time should be referred to a Select Committee, and I propose to ask the Council to pass a resolution of that character. I may mention, sir, that I quite agree with you that there should be no shelving of the bill Fortunately I have in type a well considered alternative proposal in which the inferior courts are left out, and the bill drafted to meet the case of the Supreme Court alone. It will facilitate the work of the Select Committee very materially, and I would suggest that it might meet this afternoon, in order that we may have no delay, and be enabled to proceed with the bill to-morrow. I move—"That the bill be remitted to a Select Committee, consisting of Mr. Griffith, Mr. Dodds, and myself to consider the matter, and bring up a bill in the form in which it can pass from this Council."
Mr. Douglas seconded.
The motion was passed, and the committee appointed accordingly.