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The Pamphlet Collection of Sir Robert Stout: Volume 50

Australasian Judgments Bill

Australasian Judgments Bill.

Mr. Griffith moved,—"That this bill be read a third time."

Mr. Dodds said: Mr. President, as the amendment I propose to make in this bill is not a verbal amendment, I shall under the provisions of rule 196 be compelled to move that the order of the day for the third reading be discharged, and the bill be recommitted for the purpose of considering clause 10. From the tenor of the discussion which took place yesterday I presume hon. members have made up their minds to pass this bill in the form in which it is now submitted; but, inasmuch as I am quite unable to agree that this is a desirable form, I desire to record publicly my opinion, and to take the decision of the Council by a vote as to whether this clause shall remain part of the bill. I desire to test the professions that have been made in regard to the desirability of the general application of the law in this respect throughout the whole of the Australian colonies. We have been professing a very great deal as to our desire that our laws should be uniform in their character, and that the questions submitted to us for consideration should be so dealt with that difficulties which now exist should be removed, and that the Jaw should be one of general application. I am unable, for the reasons I gave yesterday, to sec that the law we are now passing will be of any benefit whatever; in point of fact it will create difficulties, it will be a thorough sham. We have at the present moment in the different colonies laws relating to the registration of judgments, and the execution of process that may be issued under them. At the present moment such laws exist, but inasmuch as those laws are different in character it was considered some time back, at the Sydney conference, that it would be desirable to have a law of general application, and the delegates at that conference held. I think, in 1872, decided that it would be well if all the colonies were invited to pass a bill on the model of one submitted. Nothing, however, appears to have been done except in the colony of Tasmania where, I have already said, the Legislature was loyal to the engagements of its representatives, and passed into law a bill upon the model submitted to the conference. The other colonies failed to do that, and left their law precisely in the same state as it had formerly existed, in point of fact the law in Victoria and Queensland is similar to that which obtained in the year 1857 in the colony of Tasmania. But the law that we have at present in Tasmania is different from that which obtains in some of the other colonies, and the provisions of the bill that we are now pissing into law is very different from either of those provisions; that is, the bill under the discussion of the Federal Council at this moment contains provisions which are antagonistic, and which differ from the provisions of the Victorian, Queensland, and Tasmanian law. The effect of that is that in respect to one matter throughout the Australian dominions we shall have three different laws operating; first, we shall have the federal law as now passed, the law as it exists in Queensland and Victoria for the second, and the law in Tasmania for the third. Now, the whole object, I take it, of the establishment of this Federal Council was to so assimilate the law that the same proceedings might be taken in each colony, and the whole federal idea and sentiment is that we are desirous of combining, and having the same law, rules, and institutions as far as circumstances will permit. Therefore, I think that the argument used yesterday that this colony can repeal this law, and act under the federal law, is one page 102 that cannot prevail. If we could pass in each colony precisely the same law, there would be no necessity for the establishment of such a body as this; but inasmuch as that is not within the limits of practical legislation, it became necessary for those taking an interest in the subject to devise some means by which they could overcome those difficulties, and by which laws of general application could be passed. We are now met for that purpose, and to enact a law which simply says "you can take this law if you like; if you don't like it as well as the old law, allow the old state of things to remain." That seems to me to be not performing the functions for which this Council was formed. Moreover, where the federal law conflicts with the local law of a colony, the law of this Council must prevail, and, therefore, we are endeavouring by the insertion of this clause to get over the instructions given in our charter. The Imperial Act says:—" If in any case the provisions of any Act of the Council shall be repugnant to, or inconsistent with, the law of any colony affected thereby, the former shall prevail, and the latter shall, so far as such repugnancy or inconsistency extends, have no operation." Section 10 of the bill says:—"The provisions of this Act are 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." But although the Federal law must prevail by the provisions of the statute, we are endeavouring by this bill to say that it must not prevail. Well, I take it that that is an utterly absurd position for us to put ourselves in, and I am at a loss to know how this clause can be supported. There have been two bills submitted by the member for Victoria, such bills, I presume, having been drawn by the Attorney-General of Victoria, but they contained no such clause as that. Very properly, Mr. Kerferd declined to insert such a provision as that, because he must have seen that it was utterly unnecessary, and not only so, but productive of a deal of harm. The clause is an addition by the committee to which this bill was relegated. Then look at what the bill states at the outset. It is to "make provision for the enforcement within the federation of judgments of the Supreme Courts of the colonies of the federation." The whole tenor and spirit of that is that there shall be one uniform practice in regard to the enforcement of judgments. I am at a loss to know what the value of this bill is if we are still to act upon the laws as they exist in the different colonies. We should be pretending to the different colonies that we are passing laws of a general application, and such as would be of service to the whole, and at the same time we are creating confusion and making difficulties, and calling upon the Courts in the different colonies to say how far this bill is inconsistent with the local Acts. I say that this is not the function of this Council, and, therefore, I desire to still ask my hon. friend to consent to the withdrawal of this clause. It will not hurt the bill in the very least, but will, in my opinion, very much improve it. The proposal I am now making will not at all jeopardise the bill. I am desirous of seeing it pass into law without this objectionable clause. It will not prejudice the bill or imperil its existence, but will put us in the position of exercising the functions for which this Council was created. If my hon. friend will consent to take that course, I shall be very glad indeed, for I am quite convinced of the position I maintain, and, indeed, I am supported in that position by the opinions of gentlemen with whom I have consulted since yesterday on the subject. I am prepared to take the deliberate opinion of the Council by a division on this point, in order that, at all events, it may be seen what position we occupy. I hope, Mr. President, my hon. friend will be able to see his way clear to meet me on this point, for it appears to me that we are creating a precedent now, which may be acted upon in the future, and we may run the risk of making it desirable for the colonies at present in the federation to consider whether they gain anything by being members of it, and whether, if such difficulties in their laws are to be created, it would not be wiser for them to withdraw from the federation altogether. The object of the Federal Council, as I take it, is to draw the colonies closer together, and not to separate them by creating difficulties of the present description in their laws.

Mr. Griffith: So far as I can follow my hon. friend, the object he has in view, in striking out this clause, is that the provisions of this bill may be paramount over the laws of the several Australasian colonies.

Mr. Dodds: It will have that effect, no doubt; indeed, it will have that effect in any case, the laws being conflicting.

Mr. Griffith: I do not think the omission of the clause would have that effect, but the fact that my hon. and learned friend thinks so shows the necessity of the clause remaining, if the view, which I contend is the right one as a matter of principle, is adopted. The clause was inserted to settle the question of whether the provisions of this bill are to be paramount to, or concurrent with, the laws of the other colonies. I do not think the omission of the clause would make this bill paramount, and my honourable friend does think so, and so the necessity of settling the question arises. The hon. member says if the provisions of this bill are paramount, there will be a uniform practice in the colonies. That is quite a mistake. At the present time there is a uniform practice in the colonies, with the exception of Tasmania. In Western Australia, South Australia, Victoria, New South Wales, Queensland, and Fiji—I am not sure about New Zealand—there is an Act in identical language.

page 103

The only colony that differs, so far as I know, is Tasmania. If the views held by the hon. member are carried out, we shall repeal the laws of five of I he colonies, and leave the laws of three standing, and thus there will be five with one and three with the other. If we wish to repeal the laws of the colonies, it will be better to wait until the whole of the colonies are represented here. It is an extreme step for a Council constituted as we are to undertake to repeal the laws of any colony, unless the Legislature of that colony understands that we are going to do so. I should hesitate before I recommended the Council to repeal any law of the colony I represent, Queensland. I should feel no hesitation in making a law, which they could not make for themselves, and which would be for the general good of the colonies, but as to taking upon ourselves to repeal any law passed by both Houses of Parliament of a colony, that is a matter requiring much more deliberation. As to there being an inconsistency between this bill and the local laws, I do not think there is any. The real position will be that in addition to the law at present in force, there will be another one, more simple and effective in many respects, but not of such universal application as the laws now in existence. The laws which are now in existence require that notice should be given to the defendant, but they apply in the case of any judgment. The law proposed to be passed allows proceedings to be taken without notice to the defendant, but only in cases where he has already had notice of the proceedings. The two laws do not cover quite the same ground, if I may say so, one seems to be broader and the other longer. For these reasons I hope the bill will not be recommitted. As to our repealing the laws of Queensland or any other colony, I should ask the Council to pause before taking such an extreme step.

Dr. Macgregor: As reference has been made in this debate to the laws in force in the colony of Fiji, in reference to the giving execution to the judgments of the Supreme Courts of the other colonies, I think it is incumbent upon me to point out the state of matters there. In 1875 an ordinance was passed by the Legislative Council of Fiji, entitled an "Ordinance to prevent the evasion of judgments, decrees, rules, and orders of the Supreme Court of the Australian colonies, and to give further remedies to creditors against persons removing from any of the said colonies to the colony of Fiji." I should point out, Mr. President, that under one of the provisions of our general interpretation ordinance, "Australian" includes Tasmania and New Zealand, and, therefore, has the same application as the word "Australasian" in the bill before us. As already mentioned by the hon. member for Queensland (Mr. Griffith), the law in force in Fiji is precisely the same in principle as that in force in Queensland, and, I believe, in all the other federated colonies except Tasmania. As far as I can make out, the only difference between the laws of these colonies and of Tasmania consists in the fact that in Tasmania execution can be issued without a summons having been served on the defendant to show cause why the execution should not be issued. In the Fijian ordinance it is provided that—" It shall be lawful for any Judge of the Supreme Court of this colony, upon the application of the person in whose favour any judgment, decree, rule, or order was obtained, or his attorney, to issue a summons calling upon the person against whom such judgment, decree, rule, or order was obtained, to show cause within such time after personal or such other service of the summons as such Judge shall direct, why execution should not issue upon such judgment, decree, rule, or order." When I find that limitation construed with the second portion of clause 5, which reads—"From the date of such registration such certificate shall become and be a record of such Supreme Court, and shall have the same force and effect in all respects as a judgment of such Supreme Court, and the like proceedings may be had and taken under and upon such certificate as if the judgment mentioned in the certificate had been made by such Supreme Court" I come to the conclusion that the issue of the summons may be dispensed with in the procedure set out in the bill now before us, but again I take that to be corrected by the provisions set out in clause 10 of the bill, which says:—"The provisions of this Act are 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." The first section quoted, if construed literally, would appear to leave it to the option of the Judge as to whether the summons should be issued or not, but the context, I think, would seem to show that the summons is to be issued.

Mr. Griffith: No.

Dr. Macgregor: That is how I read the clause, but I do not pretend to be able to interpret and construe law with the readiness and authority of a professional lawyer, and I merely state how the matter presents itself to my mind, and that is that in the first section of the Fijian ordinance, the literal reading would seem to leave it optional to the Judge, but from the context and from what I have observed of the practice of courts I believe it would be held to be obligatory on the part of the Judge to issue the summons. If that is so, it appears to me it would still be left obligatory on the part of the Judge of the Supreme Court of any colony to issue the summons before he ordered execution to be made if the local law requires that course to be followed. The effect of this bill would, therefore, appear to me—though on this point I see there is difference of opinion—-to be nil, the mode of procedure proposed in the bill being not in contradiction to the pro- page 104 cedure in any of the various colonies, but in the matter of the detail in question going only as far as the Tasmanian law, and leaving untouched the point in the other cases as to the issue of summons, as to which the provisions of the Act are "not to be derogatory"; therefore if this bill becomes law the summons would still have to be issued, and there would be no change in the principle of procedure in the latter colonies.

Mr. Griffith: That is not so.

Dr. Macgregor: There is one other point I would draw attention to. The hon. member for Tasmania (Mr. Dodds) has frequently said he could not see any special use in having the bill passed into law, unless it was to introduce an uniformity of law and practice into the various colonies. There is one way in which it would be of considerable advantage, as I have already pointed out to this Council, in respect to the colony of Fiji, whose "memorial of judgment ordinance" gives effect to the judgments of the Supreme Courts of the other colonies, while we have no reciprocity in the matter. I suppose the Acts of the other colonies were passed before Fiji was made a British colony, and unless the bill now before us is passed into law, either with or without the 10th clause, which does not appear to me to contain any principle of sufficient importance to imperil the measure, the result would be that Fiji would still be left out of the advantages accruing from such a Act, and no effect would be given to the judgments of her Supreme Court in the other colonies. I trust that whatever may be done with the 10th clause, the bill will be passed into law. (Hear, hear).

Mr. Berry said: It is proverbially difficult, Mr. President, to decide when lawyers disagree. The hon. member for Tasmania (Mr. Dodds) has said that if there were half a dozen lawyers in the Council we should have half a dozen different opinions, but fortunately we have only two lawyers, and so we have also only two opinions. It is not so difficult to decide between them. When the original objection was raised to the 10th clause I put the same interpretation upon it as the hon member for Fiji does, that is to say, that after abolishing in the bill the necessity for notice to be given after judgment, that section revived it. However, both the legal gentlemen agree that this is not so, and that whether the section is in the bill or out of it, the provisions of the bill must prevail in all proceedings taken under it. That is to say that, in proceedings taken under the bill, in certain cases—for we do not provide for all cases—we do not say that all judgments are to be dealt with under the bill, but only judgments obtained in a certain way—notice to the defendant will not be necessary. We provide good security that the defendant will have good notice at the commencement of the action. No such provision has been observed in the other colonies, but provision has been made that at the termination of the trial, and before the enforcement of judgment, notice shall be given to the defendant. Under this bill, in certain cases, execution will follow judgment without notice, and the most that can be said against the 10th section is that it is surplusage, and that if it can do no good it can do no harm, and, as I wish to see this legislation complete this session, I feel bound to take a course which will not jeopardise the bill.

Mr. Dodds: Striking out the clause won't jeopardise the bill.

Mr. Berry: The bill, under our forms, will come under the 196th Standing Order if we discharge the order of the day—

"But the order of the day for the third reading may be discharged, and the bill, in respect to the whole or any part, recommitted, when any amendments, of which notice has been given, may be made."

And we then come under the 197th Standing Order—

"When amendments have been made in a bill on recommittal"—

For the bill, after the discharge of the order of the day, would have to be recommitted—

"The bill, as amended, shall be taken into consideration on a future day."

And by the 198th Standing Order—

"When all amendments have been agreed to or otherwise disposed of, the bill shall be ordered to be read a third time on a future day "—

So that we should require two further days, under the standing orders, to complete the progress of the measure, if any member insisted on our transacting business in strict accordance with them. As this is practically our last day of sitting for business, though we may conclude some formal matters to-morrow, we ought substantially to finish our legislation to-day. That consideration will, I think, operate very much in the minds of hon. members who desire to see the measure pass into law. We shall have by it an Act of general application, so far as its special provisions are concerned—what, in fact, the hon. member for Tasmania says we shall not have. No local law can interfere with its provisions. That appears to me so clear, and the political value of the measure so great, I must, though I am not at all assured of the value of the 10th section, vote against the re-committal of the bill, because such a course would jeopardise it altogether.

Mr. Dickson said: I have hitherto, Mr. President, spoken on this measure with too great apprehension of the legal opinions which have been given, but I intend now to take a common-sense view of the question. The history of this bill is unique. It was introduced first of all by the hon. member for Victoria (Mr. Berry), when it was received with severe criticism and censure by the legal members of the Council, and was consequently referred to a select committee, composed of such legal members of the Council and the member in charge of it. The bill before us is the outcome of the deliberations of that committee, and I think the lay members of the Council have accepted it as having been approved of by the committee. I am rather surprised, therefore, page 105 at the hon. member, Mr. Dodds, who was a member of the committee, being the foremost in attack on a bill of which he is the father, or at any rate, the reputed father. I should have thought that, if he disapproved of any portion of the bill, he would have challenged it in committee, and that rather than the bill should be introduced in this shape it would never have seen the light The hon. member is taking us at a disadvantage when he charges us with insincerity in regard to the bill, and I shall insist on supporting the bill as it now stands, and in doing so I deny evincing any insincerity or any reluctance either to promote federation or to disseminate federal laws. I think it would be very unwise to alter the laws of local legislation without due notice, although if the whole of the colonies of Australasia were represented in the Council it might assume a different aspect. At present it might intimidate the outstanding colonies from entering our coalition. I think it desirable that the clause should remain. I shall support the bill, and I shall throw the responsibility of it on the members of the committee, including the hon. member, Mr. Dodds, notwithstanding his disclaimer. I am of opinion decidedly that Federal law should be uniform, but also that it should be elastic at present.

The President: I desire to state briefly that the bill which was introduced by the hon. member (Mr. Berry) was not received either with disapproval or censure by the legal members of the Council. That is hardly the correct way to put it.

Mr. Dodds: Hear, hear.

The President: I am personally responsible with my colleague, Mr. Berry, for the introduction of this bill, but instead of the bill being submitted in the objectionable form which the honourable gentleman indicated, the Council will recollect that the members for Victoria had really prepared two bills—one dealing with the judgments of the inferior Courts as well as the Supreme Courts, and the other limiting the new law to the judgments of the Supreme Courts only. The members for Victoria were quite alive to the difference between the two measures, and to the desirability of the bill as originally introduced, but having some doubts as to whether it would be quite safe to pass it into law, we, when we found the general feeling of the Council to be pretty much of the same opinion, that it would be unwise at the present time to legislate in regard to the inferior Courts, thought it would be best to limit the new legislation to the judgments of the Supreme Courts of the colonies. The best course, we then thought, was to refer the original bill to a select committee, who could make such arrangements as would bring it into harmony with our No. 2 Bill. I desire to make these remarks to remove the misunderstanding that the members for Victoria did not introduce a bill which could be fitly and fairly designated as having been received with censure from the other members of the Council. (Hear, hear.)

Mr. Douglas: It is admitted on all sides, Mr, President, that this bill is one which should be passed into law, and the only contention is as to the 10th section, which contains words which are difficult to interpret. It is very difficult to understand what those words mean, and until some judicial decision has been given upon them, it will probably remain so. Inasmuch as the bill contains provisions which are desirable, it will be well to pass it, as it is leaving it to future circumstances to decide the meaning of those particular words. When those judicial decisions have been given, after arguments before the supreme legal tribunals of the various colonies, an alteration can be made, so now we can safely pass the bill. It will be better for us to decide upon this course, and let the bill be read a third time. Therefore, although I have grave doubts on the subject, I am prepared to vote for the third reading of the bill.

Mr. Dodds: I have just one or two words to say in reply—

Mr. Griffith: You cannot speak again.

Mr. Dodds: Having moved a substantive motion, I think I have the right of reply.

The President: Can you refer me to the standing order which confers such a right?

Mr. Dodds: I refer you to a higher authority. I refer to Parliamentary usage.

The President: But the motion of the hon. member was not a substantive motion. It was an amendment.

Mr. Griffith: No doubt, if the hon. member asks permission to speak again, it will be given to him.

Leave to speak again having been given,

Mr. Dodds said: I merely desire to examine the reasons given by hon. members for the course they propose to take; and I may say at the outset that the point to which I attach so much importance, and which I have been endeavouring to get discussed by the Council, has only been touched upon by the hon. member for Queensland—Mr. Griffith—and it is a point of vital importance. That point is, whether we are to make this law paramount, or not; whether the laws passed by this Council shall be paramount throughout the colonies in the federation. I assume that no member of this Council, and no person who has taken an active part in the establishment of this Council, will seriously contend that that is not the intention of the Council. I apprehend that it will be admitted that the object of establishing this Council was to enable laws to be passed that should have general application—that those laws should be paramount to local laws with the view of removing local differences. If the laws of the different colonies are still to prevail, different as they are in their character and in their mode of procedure, what is the object of our passing laws here at all? We desire uni- page 106 formity in regard to all those matters, and I will point out that the differences that now exist will be multiplied by this bill. That will be at once apparent by the consideration of this illustration. Supposing the colony of Victoria chooses to say, as it may under this bill—

The President: I would call the hon. member's attention to the fact that he is introducing new matter, which will lead to further discussion. In a reply, the member is supposed to confine himself to answering the remarks made to which he objects.

Mr. Dodds: That is precisely what I am doing. The argument of Mr. Griffith was on the question of uniformity. I am now answering that argument; and certainly it is not introducing new matter to use an illustration throwing light upon the particular point under discussion. At all events, my remarks will be very short in regard to that point. Supposing Victoria says, "We will act upon our own local laws," as it may do.

Mr. Berry: How can Victoria say that as a colony?

Mr. Dodds: Well, then, supposing the individuals of the colony—if that will suit the hon. member better—choose to say, "We will act upon the law of our own colony;" and supposing the individuals of Tasmania say, "We will act upon the law of our colony," which differs from that of Victoria, and supposing the individuals of Queensland say, "We will act upon the laws created by the Federal Council," then it follows that Tasmania, will be placed in a position of disadvantage, because she will recognise and give effect to the judgments of the Supreme Courts of the other colonies, whilst they will not reciprocate that summary mode of procedure, and will not give the same rights and privileges to Tasmanian judgments which we give to the other colonies. Is that a desirable state of things to accept? At the present moment we have only two laws on this subject in the colonies, and we are now creating a third mode of procedure which, as I have already pointed out, I feel convinced will lead to nothing but confusion. Is it not desirable that the laws we pass here should be paramount, so as to remove existing local differences. Dr. Macgregor, as my hon. colleague pointed out, has put forward a common-sense view of the question, but my hon. and learned friend is not able to agree with the conclusions at which he arrived. No other arguments have been used against my contention. Mr. Berry candidly admits that he does not see any use in the clause, that it may be mere surplusage, and he employs what appears to me to be a very weak argument, namely, that the 197th standing order of the Council would prevent the course I propose being taken. If it is the desire, or to the convenience of hon. members, to bring the proceedings of the Council to a close, in preference to a desire to pass a law that will be useful to the Australasian colonics, then the argument used would be a very good one. If, on the other hand, we desire to do that which is to the best interests of the colonies, it does not matter surely whether we sit a day longer or a day less. If we decide to re-commit the bill to-day, we can to morrow, if we desire to bring our proceedings to a close, move the suspension of the standing orders, and pass the bill through its remaining stages, which, as you are aware, sir, is very often done. The hon. member contends that notice is given at the commencement of the action. How many actions does he know are commenced in any other way? Will the hon. member point out how many actions are commenced in any other way than the one here indicated? He will find none, even in Victoria with its large commercial transactions. If so, his argument is valueless as applied to this particular question. Mr. Dickson has taken me to task for not having objected in the select committee to this part of the bill. Perhaps I may have done so, or perhaps I may not have had the opportunity to do so; but on neither of those points can he have any certain information. Therefore the hon. member has no right to press that as an argument. He adds that it would be unwise to repeal the laws of Australasia. If it would be unwise to do so with a view to securing uniformity and a common action, then it was unwise to establish this Council. We can all agree amongst ourselves what laws shall be passed within our own jurisdiction, without going through the form of passing into law a piece of paper which says, "You can take this, or you can act upon your own laws if you like." We know we can act upon our own laws. It does not require a decision of this Council to tell us that. Having regard to the arguments which have been used by hon. members, as opposed to the view I take, I would ask the Council to consider whether there is anything really substantial in them, anything that will controvert the position I have taken up. The bill ought to be passed into law, but I should certainly like to see the clause struck out. The object I had in view in raising this discussion was to get an expression of opinion on the question from hon. members, so that the people of the Australasian colonies might know the lines upon which we proceed. That object has been gained, and it is unnecessary that I should press the question to a division. It is now known to everyone here, and it will be known to the public generally, what opinions are held on the subject by individual members. No division can alter those opinions, and I shall therefore not call for one. I see the Council is determined to act upon the lines that are laid down, and, to my mind, without sufficient reason, but the time, I have no doubt, will come when the view I am contending for is fully recognised by this Council. He would, with the permission of the Council, withdraw his amendment.

Amendment withdrawn accordingly, and bill read a third time and passed.