Civil Court of Western Australia (1832) (WA)
ANNO SECUNDO
| GTJLIELMI | REGIS, |
NO. 1.
An act for establishing a Court of Civil Judicature.
(10th February, 1832.)
HEREAS by an Act of Parliament passed in the fenth Year of Recital of 10th. G..T..4t1
| tuled, " An Act to provide until the Thirty first day of December, ica0WICii ill Western Au | W | the Reign of His late Majesty King George the Fourth, inti- 22, enabling | )tle | in!' B | Legislative | ive | st |
One Thousand Eight Hundred and Thirty Four, for the Government of His Majesty's Settlements in Western Australia, on the Western Coast of New Holland," It is enacted, that it shall and may be law- ful for His Majesty, His Heirs, and Successors, by any order or or- ders, to be by him or them made, with the Advice of his or their Privy Council, to make, ordain, (and subject to conditions and res- trictions as to him or them should seem meet,) to authorize and em- power any three or more Persons resident and being within the. said Settlement, to make, ordain, and establish, all such Laws, Institu-
tions, and Ordinances, and to constitute such Courts and Officers, as
may be necessary for the Peace, Order and good Government of His
Majesty's Subjects, and others, resident within the said Settlement:
And whereas His Majesty by an Order in Council, bearingvdate'
| A. D. 1832. | 2nd G-ulielini | No. 1. |
| Recital of His Majesty's at Saint James's the first day of November, One Thousand Eight | Order in Council. Hundred and Thirty in Pursuance of the said Act of Parliament was |
pleased to order that the Governor for the time being of the said settlement of Western Australia, or the Officer administering the Government thereof, the Senior Officer of His Majesty's Land Forces next in Command, the Colonial Secretary of the said Territory for the time being, the Surveyor General thereof for the time being, and the Advocate General thereof for the time being, so long as they shall respectively be resident in the said Settlement, or any three of them
Power to make laws and to (of whom the Acting, Governor to be one), shall have authority and
constitute Courts &e.
power, to make, ordain, and establish, all such Laws and Ordinances and to constitute such Courts and Officers, as may be necessary for the Peace, Order, 'and good Government of His Majesty's Subjects and others within the said Settlements, which Power and Authority shall nevertheless be so exercised subject to the following conditions and restrictions, (that is to say) that all such Laws and Ordinances as aforesaid shall by the Governor or Officer administering the Go- vernment be with all convenient expedition transmitted to His Ma-
Subject to approval of His jesty for his approbation or disallowance, through one of his principal
Majest,
Secretaries of State, and that the same or any part thereof shall not be in force within the said Settlements after His Majesty's disallow- ance thereof, or of any of them, or of any such part thereof, or of any of them as aforesaid, shall be made known therein, and further, that no such Law or Ordinance shall be made unless the same shall have first been proposed by the said Governor, or Officer administering the said Government, and further, that in making all such Laws and Ordinances the said several persons shall and do conform , to all such instructions as His Majesty shall from time to time be pleased to is- sue for that purpose. And further, that no Court of Justice be con- stituted by the several persons aforesaid, within the said Settlements,, except by a Law or Ordinance to be by them for that purpose made under and subject to the conditions and restrictions aforesaid:
| Civil Court established. | Be it therefore enacted, by His Excellency the Governor of West-• ern Australia, with the advice of the Legislative Council, that there shall be within the said Colony of Western Australia, a Court of Civil Judicature, which shall be called the Civil Court of Western Australia. |
| To be a Comt of Record. | II. | AND be it further enacted, that the said Civil Court shall be a |
Court of Record.
AND be it further enacted, that the said Civil Court shall consist of and be holden by and before one Judge, who shall be styled " The Commissioner of the Civil Court of Western Australia," and shall be appointed by His Excellency the Governor, by Warrant under the the Public Seal of the said Colony.
| Appointment of Commis- | III. |
sioner.
| Power cif dismissal, | IV. | And be it further enacted, that the said Commissioner shall |
hold his Office during good behaviour, and that it shall be lawful for His Excellency the Governor with the advice and Consent of the Ex-
| No. 1. | 2nd Gulielmi IV. | A.D.1832 |
ecutive Council of the said Colony, upon proof of any misconduct of such Commissioner, to discharge him from his said Office, by an Order under the Public Seal of the: said Colony.
V. AND be it further enacted, that this said Court shall have and Seal of the Court.
use, as occasion may require, a Seal bearing a Device and Impression of the Royal Arms within an Exergue pr label surrounding the same with this Inscription, " The Seal of the Civil Court of Western Aus- tralia," and that the said Seal shall be kept in the custody of the said Commissioner.
VI. AND be it further enacted, that there shall be and belong Sub ordinate Officers.
to the said Court the following Officers; (that is to say) a Registrar Registrar Clerk.
Clerk, one Messenger or Bailiff to be constantly attendant on the
Court, and two other Messengers or Bailiffs .to be resident at conve-
nient distances from the place where the Court shall hold its sittings.
And that such Registrar Clerk shall be appointed by the written
order of His Excellency the Governor, and shall be removed on proof
of misconduct, by the same authority and in like manner. And that
all such Messengers and Bailiffs shall be appointed and discharged Bailiffs and Messengers.
by and at the discretion of the said Commissioner. And that no
new Officer shall be appointed to the said Court without the approval
and written order of His Excellency.
VII. AND be it further enacted, by the authority and with the jurisdiction of' the Court.
advice aforesaid, that the said Civil Court of Western Australia shall have cognizance of all Pleas and Jurisdictions in all cases as fully and amply in Western Australia, as His Majesty's Courts of Kings Bench, Common Pleas, and Exchequer lawfully have in England. And that the said Civil Court shall have authority to appoint Guardians and Committees over the Persons and Property of Infants, Idiots, and Lunatics within the said Colony ; And to grant Probates of Wills,
and commit Letters of Administration of the Chattels and Effects of
persons dying in the said Colony, in manner and form hereinafter more
particularly set forth.
| VIII. | AND be it further enacted; that all Suits or Actions of Suits commenced by | Su unmans o | n ly. |
Whatever Nature shall be commenced in the said Civil Court by Sum- mons, or other process in the nature of a Summons, and not by Arrest, and that all Process of execution issued out of the said Court shall be directed against Property only and not against the Person.
IX. PROVIDED always and be it enacted and declared, that if Arrest when allowed.
any Person shall have a Claim or Ground of Action of whatsoever
nature against any other Person who may be about to leave this Co-
lony, and the party having such claim or ground of Action as aforesaid shall produce to the Commissioner of the said Court, reasonable prima facie Evidence of such his right of Action and of the intention of such other party to leave the Colony ; in such case it shall be lawful for the said Commissioner to issue a Warrant under his hand for the appre- hension of the party so intending to leave the Colony, who shall there-
| A. D. 1832. | 2nd Gulielmi IV. | No 1. |
| Warrant of Arrest | upon give reasonable security at the discretion of the said Commis- sioner, to abide the result of proceedings in the said Court, to be faun, ded on such right of Action, or else shall be kept in Custody until such |
| Prosecute claim with | proceeding shall have terminated; provided always that the party |
| diligence. | claiming such Warrant shall prosecute his Claim with all reasonable diligence, otherwise it shall be lawful for the said Commissioners to dis- charge the party so kept in Custody as aforesaid on his Petition. |
| Pleadings to be oral. | X. |
AND be it further enacted, that all pleadings in the said Court,
shall be oral and made by the parties to the Suit of Action in Person,
or by their respective lawful Agents or Deputies.
XI. AND be it further enacted, that all Suits or Actions in the
said Civil Court in which the Debt or Damages claimed, or the value
| Cases under £20 to be tried | of the subject matter of such Suit or Action shall not exceed Twenty Pounds Sterling, shall be heard and determined without the interven- tion of a Jury. And that in all other cases if either party shall be desi- rous of having the cause tried before a Jury, he or she shall be entitled to have the same so hied, on application to the Registrar Clerk of the |
| If Jury, costs advanced by | said Court, and on paying into the hands of such Registrar Clerk the |
| whom. | costs of summoning and remunerating such Jury. |
without Jury.
XII. AND be it further enacted by the authority and with the
| ,Courts to grant Probates and | advice aforesaid, that the said Civil Court of Western Australia shall | |
| letters of Administration. | have full power to grant Probates under the Seal of the said Court, of the last Wills and Testaments of Persons dying in the said Colony or its Dependencies, and to commit Letters of Administration under the Seal of the said Court, of the goods, chattels, credits, and effects what- saver, of persons so dying as aforesaid who shall die Intestate, or who shall not have named an Executor, resident within the said Colony, or its dependencies, or where the Executor being duly cited shall not ap- pear and sue forth such Probate, annexing the said Will to the Letters of Administration, when such Person shall have left a Will without naming any Executor ; and to sequester the goods, chattels, credits, and effects whatsoever, of such Persons so dying in cases allowed by law, as the same is and may be now used in the diocese of London, and to demand, examine, and allow, or if occasion require disallow, the accounts of them in such manner and form as may be used in the said diocese, and to do all other things whatsoever necessary in that behalf: Provided always, that in all cases where Letters of Administration shall be committed with the Will annexed, for want of an Executor applying in due time to sue forth Probate, there shall be reserved in such Letters of Administration full power and authority to revoke the same. and tosame, | |
| ||
| duly appear and sue forth the same. |
| To whom Letters of Ad- | XIII. | AND be it further enacted, that such Letters of Adminis- |
| ministration be granted. | tration shall be granted and committed by the said Civil Court to any one or more of the lawful Next of Kin of such Person so dyin g as afore- said, and being then resident within the jurisdiction of the said Court, and being of the Age of Twenty-One Years. And in case |
| No 1. | 2nd. Guile | DT. | A. D. 1832. |
there shall be no such person, or in case such person shall not ap- pear when duly cited, then such Letters of Administration shall be com- mitted to the Registrar Clerk of the said Court, or to some Creditor or Creditors of the Deceased as the Court shall see fit.
XIV. AND be it further enacted, that every person to whom such Administrators to give
Letters of Administration shall be committed, shall before the grant- Bond.
| ing thereof give sufficient security by Bond to be entered into, to the Registrar Clerk of the said Court and his successors in Office, for payment of a competent sum of money with two able sureties, respect being had (as to the sum therein to be contained and as to the abilities of the Sureties) to the value of the estates, credits, and effects of the Deceased ; which bond shall be safely kept among the Records of the said Court, and shall be conditioned for the making and exhibi- ting a true and just account and Administration of the chattels, cre- dits, and effects of the Deceased to the satisfaction of the said Court, and according to the directions thereof. And in case it shall be found R ow | suck n d to be | Bo, |
| for the benefit of such Person or Persons as shall appear to the said | ||
| necessary to put the said Bond in suit for obtaining the effect thereof in suit time giving satistactory security for paying all such costs as may arise from the said suit,) such Person or Persons shall by order of the said Court be allowed to sue the same in the name of the Registrar Clerk of the said Court for the time being. |
| XV. | AND be it further enacted, that the said Court shall fix cer- Rules and Orders on | grant | - |
| tain periods when all persons to whom Probates of Wills and Letters lug | iiakicelrainistr | ati | on and |
| of Administration shall be granted by the said Court, shall from time to time, until the effects of the Deceased person shall be fully adminis- tered, pass their Accounts relating thereto before the said Court, and in case the effects of the Deceased shall not be fully administered with- in the period for that purpose to be fixed by the said Court, then or at any earlier period at the Discretion of the said Court, the person or persons so obtaining such probate, or administration s shall pay, deposit or dispose of the Balance of money belonging to the Estate of the De- ceased, then in his or their hands, and also all other chattels and and fects belonging to the Estate of the Deceased, in such manner and unto such Persons as the said Court shall direct for safe custody. And the said Court shall from time to time make such order as shall be just for the due Administration of such Assets, and for the pay- ment or remittance thereof, or of any part thereof, as occasion shall require, to or for the use of any Person or Persons, whether resident or not resident in the said colony who may be entitled thereto or to any part thereof, whether as Creditors, Legatees, or Next of Kin, or by any other right or title whatsoever. And it shall be lawful for Rem | Remuneration for | ouble. |
| the said Court to allow to any Executor or Administrator of the Ef- fects of any deceased Person, such commission or per-centage out of their Assets as shall be just and reasonable for their pains and trouble therein. |
XVI. PROVIDED always and be it enacted, that no allowance Executor or Administrator
whatever shall be made for the pains and trouble of any Executor .or misbehaving.
| A. D. 1832. | 2nd Gulielmi | No; 1. |
Administrator who shall neglect to pad his Accounts, at such time. or to dispose of any goods, chattels, or securities with which he shall' be chargeable, in such manner as in pursuance of any general or spe-' cial Rule or Order of the said Court shall be requisite. And more- over every such Executor or Administrator so guilty of any such neglect shall be charged with Interest at the rate then current in the said colony for such sum or sums of money as from time to time shall have been in his hands, whether he shall or shall not have made interest thereof.
| Appointment of Guardians | XVII. | And be it further enacted, by the authority and with the |
| over Infants, Idiots, and | advice aforesaid, that it shall be lawful for the said Court to appoint |
| Lunatics. | Guardians and Keepers of Infants and their Estates according to the order and course observed in England, and also Guardians and Keep: ers of the Persons and Estates of Natural Fools, and of such as are, or shall be deprived of their reason by the Act of God so as to be un- able to govern themselves and their estates, and to enquire, hear, and |
| Questions of Idiotcy or | |
| Lunacy. | determine all questions of Idiotcy or Lunacy, by a Jury, of Twenty-Four good and lawful men, the opinion of the majority of whom shall be taken and received as the verdict of the said Jury. |
| Right of appeal to the |
| Governor in Executive | XVIII. | AND be it further enacted, that in all cases in which any |
| Council in 28 days after |
| Judgments &c. of £100. | final Order, Judgment, or Sentence shall be made or pronounced by the said Court for or in respect of any sum or matter of Issue at the value or amount of One Hundred Pounds, or in case such Order Judgment, or Sentence shall directly or indirectly involve any claim, demand, or question respecting property or any civil right, amounting to or of the value of One Hundred Pounds, any person feeling ag- grieved thereby, may within Twenty-eight days after the same shall have been made or pronounced, appeal therefrom to His Excellency the Governor and the Executive Council of the said Governor, upon giving Fourteen Days Notice of such Appeal to the adverse party, and upon giving reasonable security to the satisfaction of the said Court for the due prosecution of the Appeal, the due performance of such Order or Judgment as the said Governor and Council shall think fit to |
| Evidence on Appeal. | make, and for payments of the Costs of the Appeal. And it is hereby declared that no evidence shall be received on such Appeals which was not received on the original hearing. |
| Court to execute Orders o | of | XIX. AND be it further enacted, that in all cases of Appeal as aforesaid the said Court shall conform to, and execute all such Judg- ments and orders as his said Excellency and the said Executive Coun- cil shall think fit to make in the Premises, in such manner as any original Order, Judgment, or Sentence of the said Court could or m'g-ht have been executed. |
| Governor and Council on | ||
| •tppeah. | ||
| Governor in Executive | ||
| Council to make Rules | XX. And be it further enacted, that it shall be lawful for His Excellency the Governor, by and with the advice and consent of the Executive Council of the said colony, to make and prescribe such Rules and Orders touching the Times and Places of Session, Form of Process, Pleadings, and other Business and Proceedings of the said | |
| and Orders &c. |
| No. 1 | and Gulielmi IV. | A. D. 1832. |
Court, and of the Fees payable therein, as to him and them shall seem fis -and such Rules and Orders from time to time to alter, amend, or revoke as occasion may require.
JAMES STIRLING,
GOVERNOR AND COMMANDER-IN-CHIEF.
Passed the Legislative Council
This IOth day of February, 1832,
M. J. CURRIE,
Clerk to the Council.
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PT.rnan AT nut C.E. WA. 20. 4. 1858.-50.
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