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The Pamphlet Collection of Sir Robert Stout: Volume 50

Service of Civil Process Bill

page 52

Service of Civil Process Bill.

On the motion of Mr. Griffiths, the President left the chair, and the Council resolved into committee to consider the Service of Civil Process Bill.

On clause 1,—

Mr. Griffith said that unless some argument was adduced to the contrary, he was disposed to go on with this bill. He had carefully explained its provisions the other day, and although it involved matters of considerable importance, he thought that they might safely proceed with it, unless any hon. member could show reasons why it should be postponed for further consideration.

Mr. Dodds said that in reference to the remarks which had fallen from Mr. Griffith, as to the desirability or otherwise of proceeding with this bill, it would be remembered that he had expressed some doubts as to whether they should proceed to legislate upon this and other subjects, and especially on this subject, inasmuch as they were by this bill purporting to deal with the practice of the Supreme Courts of other colonies before such Courts had had an opportunity of expressing an opinion on the proposals made. He confessed, however, that he was very much struck with the argument of the hon. the President when he cited section 15 of the Federal Council Act, and said that by it they were in a position almost to assume that the Legislatures and the people of the different colonies affected by the Federal Council had agreed to relegate to the Council the consideration of such matters as were there mentioned. It would be remembered that in subsection 9 the service of civil process of the Courts of any colony within Her Majesty's possessions in Australia was one of the subjects specially referred to the Council by the Federal Act, which had received the assent of the colonies, as was evidenced by the adopting Acts of the different Legislatures. In that view of the case he thought that they might very fairly proceed to legislate upon this subject. It was one of great importance to the commercial interests of all the colonies affected; but the proposals in the bill, as he had had occasion to remark, seemed to be framed in such a way as to provide all the necessary safeguards that could possibly be asked for in legislation of that kind. Being impressed with that view, he thought that they might fairly proceed to pass the bill into law.

Clause 1 was then read, and passed as printed.

On clause 2—"Interpretation,"

Mr. Lee Steere suggested that they might strike out the words referring to the Supreme Court which already found a place in the Interpretation Act.

Mr. Griffith: That is not passed yet.

Mr. Berry asked if it was necessary to keep in the definition of Supreme Court. They had the same words in another bill which they had gone through, and he could see no reason for having it in two Acts. He moved that the sub-section be struck out.

Mr. Griffith said the other was a bill by itself, and was not passed yet. Suppose it were disallowed as being beyond the functions of the Council, this Act would not be clear by itself. The ordinary wording, Supreme Court would not be sufficient by itself. The words used in the other bill were "the Court." Here it was "any Court," and might include the Admiralty Court. He was not prepared to say exhaustively what was the exact constitution of the Supreme Court of New Zealand.

Mr. Berry said there would not be two Supreme Courts in the same colony.

Mr. Griffith: There might be two Courts having complete civil jurisdiction in the colony in question. Had not the Land Court or the Bankruptcy Court of Victoria a separate jurisdiction?

Mr. Service: No.

Mr. Berry suggested that if the argument of the on member for Queensland held good there would be two separate definitions of the same point in two Acts passed during the same session.

Mr. Griffith: What would that matter? If this bill were passed after the other one became law they would probably have the same phraseology, but the other Act was not yet passed.

Mr. Berry: Neither is this.

Mr. Griffith: No; but this is a bill which must be clear in itself, without the necessity for the other bill at all. It seems to me that in a preliminary session like this every bill should be complete in itself.

Mr. Service: The definitions were the same except for the word "any." It would be better to have this bill complete in itself, so long as there was no conflict between the definition in the two bills. At the very worst this was only a work of supererogation. It was to provide for an evil which was not likely to arise, but which was a possibility.

Mr. Dodds thought the argument seemed to indicate that an alteration was wanted in the interpretation clause of the other bill.

Mr. Griffith: No. That is complete in itself-After some further conversational discussion at the table,

The clause was put and passed.

Clause 3—"Writ of summons may be served in any colony"—was agreed to as printed.

On clause 4—"Indorsement on writ for service beyond colony"—as follows:—

4. Every writ of summons issued under the provisions of this Act for service out of the colony in which it is issued shall, in addition to any other indorsement or notice required by the law of the colony in which it is issued, have indorsed thereon or annexed thereto a memorandum or notice in the form or to the effect following; that is to say:—

"This summons [or petition, or as the case may be] is to be served out of the colony of, and in the colony of."

"Your appearance to this summons [or petition, or as the case may be] must give an address at some place within five miles of the office of the Supreme Court of at which address proceedings and notices for you can be left:"

and shall also have indorsed there on a short statement of the claim made or the relief sought by the plaintiff in the action, and, if the plaintiff sues in a representative character, shall also state the capacity in which he so sues.

Mr. Dodds said he desired to ask the hon. member in charge of the bill whether h page 53 thought the form of indorsement here would preclude the issue of concurrent writs, which were very useful at times. The language of the section seemed to indicate not doing so.

Mr. Griffith said he thought that a matter to leave to the Courts themselves. The Courts might think it desirable to issue concurrent writs in some instances, but not in others. They had the power, and it was a matter for local consideration.

Mr. Dodds said he saw that the same idea seemed to run through section 6 of the bill, which seemed to indicate the intention that concurrent writs were not to be issued. However, they could take the matter into further consideration before the bill finally passed.

Clause put and passed.

Clause 5, "Effect where writ of summons not properly indorsed," was agreed to.

On clause 6, "time limited for appearance,"

Mr. Griffith said: It had been hard to know what time to fix for appearance. It could not be left to the Courts altogether. The Act must deal with it itself. He had taken the rules of the Supreme Court of Queensland as his basis in fixing the times, which though only 30 days in regard to some colonies had to be considerably increased in others. He had avoided using the names of colonies not in the union, but at the same time the definitions were so framed as to cover them when they did come in, and the times could easily be altered if they were thought to be too short or too long in such cases. Sub-section 6 was drawn so as to include New Zealand. He thought the language of the clause and the table of times would bear inspection.

Mr. Dodds said there was one point which seemed to him to be doubtful. He could not see any provision for the case where a writ was issued in Tasmania for service in any other colony except Victoria.

Mr. Lee Steere thought that 60 days would be in some cases too short a time between Fiji and Western Australia.

The President thought that that raised another question, as to whether it was 60 days from the date of issue or the date of service.

Mr. Griffith: From the date of service.

The Mr. Service: I think it should be made from the date of issue.

Mr. Dodds: The days are counted from the date of service.

The following new sub-section was drafted by Mr. Griffith, and inserted as subsection 6 of the clause:—"If a writ is issued in Tasmania, and is to be served in a colony on the mainland of Australia, other than Victoria or Western Australia, 45 days."

The clause, as amended, was agreed to.

Clause 7 was agreed to. On clause 8,

In reply to the Chairman, Mr. Griffith stated that domicil was a technical term; for instance, a woman's domicil was that of her husband.

The remainder of the bill was agreed to without discussion.

The bill was reported to the Council with an amendment.

The report was received, and ordered to be taken into consideration next day.