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The Pamphlet Collection of Sir Robert Stout: Volume 50

Civil Process Extension

Civil Process Extension.

Mr. Griffith said: In rising, Mr. President, to move the second reading of a bill to authorise the service of a civil process outside of the jurisdiction of the colony in which it is issued, I would point out that this is one of the subjects expressly referred by the Imperial Act to this Council in the words—"The service of civil process of the Courts of any colony within Her Majesty's possessions in Australasia out of the jurisdiction of the colony in which it was issued." I took the opportunity two or three days ago to say a few words in explanation of the nature of the difficulty that arises with respect to civil process. Each Legislature of the Australasian colonies has jurisdiction within its own territory only, and it can only give authority to its Courts to exercise a jurisdiction within that territory. Any person beyond the territory of a colony owes no allegiance to that colony, or to its Courts, or any process of those Courts. Consequently, a writ issued by any of our Courts is, beyond the limits of the colony in which the Court sits, so much waste paper. It may have a pretty seal, or be exceedingly formal in its language, but it is actually waste paper so far as its having any legal effect beyond the colony in which it is issued is concerned. I think none of the colonial legislatures can alter that, although perhaps it may be within the province of a colony to say that the writs of some other colony may be recognised within its limits. But no legislature is likely to do that. It is, of course, absurd for a man who has incurred debts or other liabilities, either by himself or in respect to property in which he is interested, to be exempt from justice in so far as his own obligation is concerned, simply because he has crossed the border. The subject is one which requires grave consideration, because if wise provisions are not made, a great deal of serious mischief might be done. There are a great many reasons why the process of the Courts of one country should not have effect outside its borders; and it is quite manifest that any such power, if given, must be limited to cases in which the subject matter of the action really arose within the colony which issued the process—where, in fact, in common sense, the Court of that colony is the proper Court to exercise the jurisdiction. Take, for instance, a case of divorce, where the man is living in Victoria and the wife goes away to Queensland with an adulterer; it is clear that in such a case the Supreme Court of Victoria is the proper Court to exercise the jurisdiction. Whether the decree of the Victorian Court would be recognised in New South Wales or Queensland, in which the defendant or her paramour might be found, involves an interesting question of international law. Personally the wife and corespondent would owe no allegiance to the Court of Victoria, but nevertheless that is the Court which ought to exercise the jurisdiction. So, too, with regard to land in Victoria. The Supreme Court of Victoria would be the proper Court to exercise jurisdiction in regard to it, although the person affected might be living outside its boundaries and owe it no allegiance, and a judgment obtained against him might be held outside of Victoria to be invalid. It has been held by the Supreme Court of New South Wales—and as I conceive rightly—that a judgment obtained in another colony against a person resident in New South Wales who does not appear or submit to the jurisdiction of the Court is of no effect. That is the difficulty which has been felt for some time, and this bill endeavours to deal with the subject; and in this way—by allowing a writ issued from the Court of one colony to be served in another—giving this right absolutely, but then limiting the effect of the service to cases in which the cause of the issue of the writ originated in the colony which seeks to exercise jurisdiction. Of course the Courts have in the past issued writs for service out of the jurisdiction, and there are two ways in which it has been done. In Great Britain the practice is that the Court gives in each case special leave to do so upon facts being shown to it to the effect that the cause of action arose within the country. In some of the colonies the page 40 same course has been followed, but in others general power is given to issue the writ, but the suitor has to satisfy the Court of the propriety of doing so before he proceeds further in the matter. On the whole I think the latter is the more convenient way, and that is the way, therefore, which it is proposed to follow in this bill. Special notice is to be given on the writ of the nature of the claim made or the relief sought by the plaintiff in the action, and, if necessary, of the capacity in which the plaintiff sues. The provisions as to the time of appearance are mere matters of detail having regard to the conditions of each colony, and they are framed with regard to the fact that some of the colonies are not represented here to-day, for whom it is necessary to frame definitions of time that will apply to them when they come in by and by, and I think that has been done. The 8th section is the most important one, defining the cases in which the power may be exercised. It is proposed that, when the defendant has been served out of the jurisdiction in any of the cases enumerated in that section, and it has been shown to the Court that the circumstances exist, and that the defendant has been personally served, or that the writ came to his knowledge, and that he wilfully neglects to appear to the writ, or is living away from the colony in order to defeat or delay his creditors, or deprive the plaintiff to the relief to which he is entitled, the plaintiff shall, by permission of the Court, be at liberty to proceed as if the defendant had been served within the jurisdiction. The conditions are defined by the 8th section, and they are these. It must be made to appear to the Supreme Court of the colony in which the writ was issued, or to one of its Judges, first of all:—1. That the subject matter of the action so far as it concerns such defendant is—(a) Land or other property situate or lying within the colony in which the writ of summons was issued; or (b) Shares or stock of a corporation or joint stock company having its principal place of business within that colony; or (c) Any deed, will, document, or thing effecting any such land, shares, stock, or property. That is the first condition. Something that is physically situated in the colony over which the Court would very properly have jurisdiction apart from any technical rules of international or municipal law. The second caseis—(2.) That any contract in respect of which relief is sought in the action against such defendant by way of enforcing, rescinding, dissolving, annulling, or otherwise affecting such contract, or by way of recovering damages or other remedy against such defendant for a breach thereof, was made or entered into within that colony. That is to say that if a man enters into a contract within a colony he must be prepared to acknowledge that the Courts of the colony have jurisdiction over him in connection with that contract, and that is, also, I think, in accordance with the fitness of things. (3.) That the relief sought against the defendant is in respect of a breach which took place within that colony of a contract wherever made. That is, if a man does an act, in the colony which is a breach of contract he is liable to the courts of the colony wherever the contract was made, and whether the breach be by himself or his agent; and that, too, is I think a correct case where the jurisdiction should be exercised. (4.) That any act or thing sought to be restrained or removed, or for which damages are sought to be recovered was done, or is to be done, or is situate within that colony. That would cover cases of what we call actions for wrong; where a wrongful act is done or proposed to be done, the court of the colony ought to have jurisdiction, even if the man has gone away, or having always been away, the action is done by his agent. (5.) That at the time when the liability sought to be enforced against the defendant arose, he was within that colony. That, of course, is right, or else a defendant could evade his responsibility by simply going across the border. (6.) That the domicile of the person against whom any relief is sought in a matrimonial cause is within that colony. That also is, I believe, in accordance with international law, but there may be some difficulty in saying exactly how far international law is applicable to the Colonies in connection with matrimonial causes. I believe these definitions are in accordance with the principles established by the Courts of Great Britain and most of the colonies, though they are rather wider than those recognised in some of them. I shall be glad if any improvement can be made in them, although I believe they will bear criticism. It is very important that they should be accurate; neither too wide nor too narrow. I believe them to define, as far as possible, the conditions under which the Court should have control over an absent defendant. The 11th section provides for the enforcing of any judgment recovered under the Act. Section 10 is a saving clause, which is necessary, because the proceedings will invariably be ex parte in the first instance. Information may be given to the Court in support of the order, which may have no foundation in fact, and in reality, the defendant may not be properly amenable to the jurisdiction of the Court. By section 10, if that is made to appear in any part of the proceedings, no further steps are to be taken in the action against the defendant. That is, I think, sufficient safeguard, with which this Act may be passed with safety. I have hesitated about bringing forward a bill on such an important matter as this. It will establish a principle which has never yet been formally recognised anywhere, and which therefore deserves every consideration. I have hesitated because our numbers are but limited, and because there is not that element of permanency about the constitution of the Council that I think most desirable. Unless, therefore, this bill is likely to commend itself to all the legislatures represented here, it would not be wise to proceed with it at present. After great consideration I have come to the conclusion that we may proceed with it safely, and unless reasons are urged against it, I propose to proceed with it and pass it into law.

Mr. Dodds said: I have great pleasure in seconding the motion for the second reading of the bill, inasmuch as its provisions commend themselves to my judgment in regard to matters that require legislation. It was with me for some time a matter of considerable doubt whether we should proceed with any legislation during the present session, for similar reasons to those referred to by Mr. Griffith, and I confess I was in- page 41 clined to the opinion that the proceedings should be confined as far as possible to regulating our forms of procedure, and discussing but not legislating upon subjects of general importance. On further consideration I think we may safely proceed to logislate on subjects as to which there is a general concensus of opinion, and I think this is one of the matters on which the representatives of the various colonies will agree. It is essentially desirable that process issued in one colony should run in another, in order that the delays, the expense, and other obstructions that now exist may be removed as far as possible, and greater facilities be given to the trading communities of the different colonies. With regard to the provisions of the bill, I cannot but feel that what the mover has said commends itself to our judgment, inasmuch as the safeguards throughout are so great, and the provisions so carefully framed, that we can do no harm in passing it. One or two suggestions may be made in committee, but the principle of the bill may be safely affirmed in the present motion, and I see no reason why the Council should not read the bill a second time. I have, therefore, much pleasure in supporting the motion.

Mr. Dickson said: Mr. President, this is a measure which laymen must, to a great extent, take upon trust—the trust that it has been duly framed and digested by the legal members of the Council. I do not rise to offer any opposition to the bill, but simply to say that in dealing with it we are binding our respective colonies; it should, therefore, not be disposed of without a great deal of deliberation. Even as a layman I can see clearly that the bill is one of very great importance indeed, and one which should be well considered before we pass it. I should have preferred that the bill had been circulated throughout the different colonies represented in this union, so that the question might have been fully ventilated, and any weak parts of it detected. I have, however, great confidence in the legal gentlemen who have spoken on the subject, and if, upon full reflection, they are convinced that it would be beneficial to the colonies of the union I shall not offer any objections to the measure. At the same time I express my opinion that it would have been preferable had the various colonies had an opportunity of considering it, and especially the legal gentlemen of the various colonies, whose opinions as to its necessity would have been of great importance. I recognise the necessity for such a measure. The only difficulty that occurs to my mind is, whether the form in which it is to be presented to us is likely to be most effectual in its purpose, while being least injurious in its effects. My own belief is that the measure will be a very useful one, but it is one on which the lay members of the Council will have to trust greatly to the ability of the legal members.

Mr. Douglas: A bill of this kind, sir, is very greatly needed. Anyone who knows the facts must be aware of the inconvenience that results from not having such a law as this. The people of these colonies speak the same language, and, in reality, if a person leave one colony for another, it is just the same as if he went from one part of a colony to another part of the same colony.

Ease of communication between the colonies renders it absolutely necessary that an Act of this kind should be passed, the chief thing being to see that we have the proper power, and that we do not abuse the power vested in us. That we have the power is perfectly certain. The question with which the bill is concerned is one that was strongly advocated at the convention, and is one that will commend itself to the common sense of all persons. It would be extremely useful in cases of contracts entered into between persons in this colony and in Victoria, and there is no doubt that the other colonies will be brought to believe that the passing of such an Act is a desirable thing. As to the power of this Council to bind the colonies represented upon it we may safely leave the legal part of it to them, only satisfying ourselves that we are going in the right direction by carrying out a measure of this kind. A knowledge of the ordinary concerns of life shows us that something of this sort is necessary, and I believe that if we pass the bill it will give satisfaction to the entire Federation.

Question put and passed, and committal of the bill made an order of the day for Monday.