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The Pamphlet Collection of Sir Robert Stout: Volume 50

Australasian Judgments Bill

Australasian Judgments Bill.

The President left the chair, and the House resolved itself into a committee upon the Australasian Judgments Bill.

On clause 1: "Short Title."

Mr. Griffith drew attention to the fact that the bill had been much changed since its second reading, and it would be right that attention were drawn to the changes that had been made in it. The bill, as read a second time, provided for the enforcement of judgments of various courts besides the Supreme Courts. Objections were pointed out to that course, and the matter was referred to a select committee. The scheme in the bill as now submitted might be described very briefly as this. The provisions were to be extended to all kinds of judicial orders made by the Courts, so that they could be enforced in any colony beyond that in which they were made, but this was only to apply to the Supreme Courts for reasons previously urged. No doubt means would be devised hereafter to extend the provisions of the bill to inferior Courts, with proper safeguards, the nature of which he was not prepared just then to suggest. As to the difficulty pointed out on the second reading, that it would be dangerous to allow judgments to be enforced without further notice to the defendant that difficulty was proposed to be got over in this way. The provisions of the Act were only to apply in cases where one of three conditions existed—either the writ of summons must have been served upon the defendant in the colony in which the judgment was made and served in such a way as required by the rules of the Supreme Court of that colony; or secondly the judgment must have been made after an order for liberty to proceed against the defendant, made under the provisions of the Act just passed. The Australian Civil Process Act, after the service of the writ of summons upon him out of the colony in which it was issued; or thirdly, the person against whom the judgment was made must have submitted himself to the jurisdiction of the court by which it was made. In any of these three cases, the defendant or the person against whom the judgment was made, would have already had notice, and under these circumstances he thought it would be safe to allow the judgment to be enforced against him without any further notice. If further notice was required, there would be this difficulty always, that a man to be served—say in Victoria, and owning property in Queensland, might go to Tasmania, and a judgment obtained against him in Victoria could not be executed in Queensland, until he was again served in Tasmania, and in the meantime his property might have been disposed of. With the limitations he had read he thought it was safe to dispense with further notice. Then it was provided that as soon as the judgment was registered it might be enforced as if it were a judgment of the Supreme Court of the colony in which the registration was effected. The form of certificate of judgment had been framed so that the certificate would serve also as a memorial of the judgment under the Acts at present in force in all the colonies, so that a person if he could not get the judgment enforced under one Act might do so under the other. In addition to that, it was provided by clause 10 that the provisions of the Act should be in addition to and not in derogation of the provisions of the Acts of the several Australasian colonies relating to the enforcement of the judgments of other colonies. He believed this bill would be found to contain a better, more certain, and more convenient way of enforcing judgments of the Supreme Courts of the various colonies than that now in existence.

Question put, and passed.

Clauses 2 to 7 passed as printed.

On clause 8,—"Court where certificate registered may direct stay of proceedings pending application to set judgment aside,"—

Mr. Dodds said the law at present in force in Tasmania would conflict with the provisions of the bill now under consideration. He could quite understand there being cases in which they would not conflict with the law of the local Legislature, but be an addition to it, but in this instance there was a direct conflict. He could not see the object of the Council in passing the bill in such a form. What was wanted was laws of universal application. Surely, what was intended by the meeting of the Council was that it should pass laws of general application, and not to have also the local Acts in force in conflict with it. That was not what was intended by the meeting of the Federal Council.

page 94

Mr. Service: Do we repeal the land laws?

Mr. Dodds: No, but the law which this Council made must prevail. He was at a loss to understand why they should provide in this Act a clause which was in direct conflict with the Intercolonial Judgments Act of Tasmania. This law must prevail under the terms of the Imperial Act. What was the object of federation if they were to continue the differences in their laws? What they wanted was laws which would serve for the whole of Australasia alike, and why did they not make a step in that direction?

Mr. Service: If we strike out clause 10 would that make it so?

Mr. Dodds: Yes. It would show also that we have sufficient confidence in what we are doing to say that hero is legislation that is fit for the whole of the colonies, and not merely to say here is something which you can have if you like it, but not unless you do. What they wanted was fuller legislation altogether.

Mr. Griffith failed to see that there was anything in the bill that should make it conflict or be inconsistent with any other Act. There were several other ways of enforcing a judgment now. The only important change proposed was that they were now going to enable a judgment to be enforced under certain circumstances without giving notice to the defendant; but he could see no inconsistency at all, because there would be now two ways of doing it, and a man could take whichever way he liked. The application of the bill—and hon. members should not forget this—was limited. It only applied to judgments obtained in a certain way. The present law prevailed in regard to judgments however obtained. But it was because someone might argue that there was an inconsistency that this clause 10 was inserted to obviate any such argument.

Mr. Dodds asked what was the object of the bill? Every colony of the group had a law by which it could enforce the judgments of the other colonies, but this Act was different, in its provisions, and would create a diversity of practice. It had been for many years decided that it would be better to have a law of general application, and to have one uniform practice for the whole of Australasia. This was the bill to do it, and yet they were instead going to create a diversity of practice by it. From that point of view it would be unwise to have two kinds of laws in operation in regard to the same matter. If we think it useful, comprehensive, and likely to carry out the objects which the Council had in view, it should be made to operate throughout the whole of the Australasian colonies. That was the sentiment which ran through the whole of their proceedings, and which was indeed the idea of federation. In Tasmania they had one mode prescribed of enforcing the judgments of the other colonies. In Queensland and Victoria they had the law which was originally in force in Tasmania in 1857, which required notice to be given to the judgment debtor. In Tasmania there was no such provision, and they were at liberty in that colony upon registration of the certificate within 12 months, of obtaining judgment to take such steps as if it were the judgment of the Supreme Court of the colony. That course was in direct opposition to this bill. If all they required was in this bill, why not make it universal in its application?

Mr. Service: What are the points of conflict?

Mr. Dodds: You will find they do not agree in many respects if you compare the Tasmanian Bill with this one.

Mr. Berry: It will have to give way so it

Mr. Dodds: Yes; but yet clause 10 stands as it is, leaving two sets of laws in existence. All, however, I can do is to hold my own views about it, and if hon. members think them erroneous, I can do no more.

Mr. Service said the hon. gentleman had not shown them the points of conflict. There might be a difference, but conflict and difference were not the same thing. In some parts of mountainous countries there might be a narrow bridge of a single plank across a gully, and if one man started from one end at the same moment as another man started from the other, and they met in the middle, there must be a conflict, and one must give way. But supposing there were two planks, there would then be two ways by which the chasm might be spanned. That was not a case of conflict, though it was of difference, and I think the federal idea is better borne out by having two different systems, and by allowing a colony having a different system to this bill to exercise its choice. If it thought the new way a better one, it would drop into it as a matter of course, and so the colonies would gradually attain the process which the hon. member for Tasmania (Mr. Dodds) said they ought to compel. Unless the hon. gentleman could show him a clear and distinct ease where they had overridden the law of any colony, they should very carefully consider the necessity for laying aside the bill.

Mr. Dodds said he could show some in a second. The provisions of the bill would not require notice to be given to the debtor, whereas the provisions of the Victorian Act did require it

Mr. Griffith: That is a diversity.

Mr. Dodds: No. A conflict-

Mr. Service: You can take either method.

Mr. Dodds said that supposing proceedings were taken on a judgment under the bill, in Victoria, without notice being given, a defendant might fairly say that it was against the existing law of the colony to enforce the judgment without giving him notice, and calling upon him to show cause why he should not pay the amount. If hon. members called that a difference, and not a conflict, he did not know what conflict meant.

The Chairman said that the words "in addition to and not in derogation of" meant that the provisions of that Act, and also of the local Act, would both be in force.

Mr. Dodds: The meaning of that is, that you would have to give notice, and that you would not have to give notice.

Mr. Berry said he thought the bill would be better without the 10th section. The bill proposed to enforce judgment without notice in colonies where a local Act was in force which provided that notice should be given, and it was to be "in addition to, and not in derogation of" the local Act. The 10th section, therefore, appeared to be dangerous, inasmuch as it raised a doubt whether it did not conflict with the Act already in force. page 95 Supposing proceedings were taken without notice in a colony which had an Act requiring that notice should be given to the defendant, would not the defendant have just cause of complaint? There seemed to him nothing to be gained by the retention of the section, and he thought it would be better to strike it out.

Mr. Griffith said that without the clause there would be no certainy on the subject. Out of the five colonies, the Supreme Courts of three might hold that the local Act was still in force, and the remaining two might hold that it was no longer in force. He would give an illustration. A nuisance was an offence at common law, and the man who committed the offence might be proceeded against in various ways. He could either be tried before a jury, or an injunction could be obtained in a Court of Equity restraining him from committing it, or, under the Health Act of some countries, he might be summoned before a magistrate and dealt with in a summary way. But the fact that the last-named process was available did not prevent the man being indicted for a nuisance, or restrained by injunction. It was the same with the two Acts. If there was a law in any of the colonies saying that no judgment of any colony should be enforced without notice to the defendant, then there would be an inconsistency. But there was no such law; therefore, there was no inconsistency. It was frequently seen that one part of an Act of Parliament contained elaborate provisions, while another part of it contained simple ones; but that did not make it inconsistent.

Mr. Berry said that if that was all that the clause meant, he would quite agree with the contention of the hon. member; but to him it seemed to mean something more. It seemed to him to mean that in a case brought under the provisions of that Act, the provisions of another law would be brought in that might be in operation in any colony in which it was attempted to enforce a judgment. By that section they brought in two opposing laws. Indeed, by that section they got rid of the safeguard provided in the Imperial Act. If it meant that while the provisions of the Act might be put in force it would prevent proceedings being taken under any local Act, then there could not be the slightest objection to it. But it seemed to him that it would mix up the provisions of that Act with the provisions of some other Act, and so the simplicity and ease by which the judgments could be enforced under the Act would be taken away and become altogether illusory.

Mr. Griffith said he thought the words of the section were the best words to express the very opposite idea.

Mr. Dodds said he would ask hon. members what would be the practical effect of the clause. It was provided in clause 5 that upon the production of a certificate of judgment to a certain officer of a Supreme Court, it should be entered in a book called the "Register of Australian Judgments," and that from the date of such registration the certificate should become a record of the Supreme Court, and have the some force and effect in all respects as a judgment of such Supreme Court. The creditor could then enforce the judgment without notice to the defendant. That was what the bill proposed to do. But the law of Tasmania provided that notice should be given to the defendant to show cause why certain things should not be done, and why an execution should not issue. Mr. Dodds proceeded to show that the fact of no notice being required under this bill would conflict with the law of the colony in which the debtor resided if he was by it entitled to notice. Supposing a judgment creditor desired to proceed under this law, it required no notice. The creditor might turn round and say, "I have no notice," to which the judgment creditor would reply, "I have proceeded under the Federal Council Bill." "That is not law to me," the debtor might reply, "the provisions of that bill are not in derogation of, but in addition to the law of the colony in which I reside; the law of the colony in which I reside requires notice, and I demand that." What was the object of passing this bill into law unless they were prepared to give the judgment creditor the right of enforcing his judgment without notice?

Mr Dickson thought that it was hard for laymen to decide when lawyers disagreed. While admitting the force of Mr. Dodds' argument, if the whole of the colonies were represented, a uniform law would be desirable, he thought it would be unwise to frame a strong measure, possibly objectionable to the colonies, especially in view of their great desire to induce the other colonies to join.

Mr. Service proposed the following amendment in the clause, as presenting the matter clearer to his mind,—"The provisions of this Act shall not be considered to repeal any Act of any colony in the federation relating to the enforcement of the judgments of the other colonies, or to prevent any person from proceeding under any such Act instead of proceeding under this Act.

Mr. Griffith thought it would be very much better to say what was meant; he could not see that leaving the matter uncertain was advisable. If hon. members did not understand the clause or the bill, it would be better not to pass it.

Mr. Dodds moved that the clause be struck out.

Mr. Griffith said he would rather move that the chairman leave the chair, and leave the matter over for future consideration. Mr. Dodds and himself both agreed that the clause was in proper and usual language; but if hon. members did not like the words, they could express the idea by any other form of words they liked.

Mr. Dodds said that his point was that they should not have laws of a different signification operating in different colonies, and certainly not laws inconsistent with each other.

Mr. Service said it appeared to him that Mr. Dodds wanted them to do what he would do himself, and he was anxious that it should prevail throughout the colonies.

Mr. Dodds: It affects you more than us, as our law more closely assimilates to it than do the laws of some of the other colonies.

Mr. Service said that if they got a law of general application, what more could they want? If they could carry these general laws without meeting together, there would be no necessity for the Council. No harm could arise from the passing of this bill with the clause in. (Hear, hear.) If they did not page 96 pass this bill with the clause in, or a similar one to it, the difficulty suggested by Mr. Griffith would arise, that there might be different interpretations put upon it by the Supreme Courts of the federation.

The clause was agreed to.

The bill was reported without amendments, and the third reading made an order of the day for next day.