Justices Act Amendment Act 1919 (WA)

No. 19.] Justices Act—Amendment. [1919.

JUSTICES ACT AMENDMENT.

10° GEO. V., No. VII.

No. 19 of 1919.

AN ACT to amend the Justices Act, 1902.

[Assented to 28th October, 1919.]

BE it enacted by the King's Most Excellent Majesty. byCouncil and Legislative Assembly of Western Australia, inand with the advide and consent of the Legislative

this present Parliament assembled, and by the authority of

the same, as follows:—

Short title. 1. This Act may be cited as the Justices Act Amendment

Act, 1919.

Amendment of 2. Section four of the Justices Act, 1902 (hereinafter

Section 4. called the principal Act), is hereby amended, as follows:

(a) By the omission of the definition of "Breach of

Duty";

(b) By the insertion in its appropriate place of the fol-

lowing definition:

"Matter" means any act, omission, -fact, or event (except an indictable offence not punishable summarily) upon complaint whereof justices may give any de- cision against or in respect of any person.

steionndnent of.a Section six of the principal Act is hereby amended by inserting after the word "justices," in line one, the words "male and female."

Various conae. 4. The principal Act is hereby amended as indicated in

quential amend.

ments.

Schedule. the schedule hereto.

l919.] st ices Act—Amendment. [No. 19.

5. Section twenty-nine of the principal Act is hereby re- !S I:lb:titan of

pealed, and the following section is inserted in lieu thereof: for Section 21

29. Subject to this Act and notwithstanding the pro- visions of any other Act, every complaint for an indic- table offence or a simple offence or other matter shall be heard by and before two or more justices.

6. Section thirty-three of the principal Act is hereby Amendment of Section 33.

amended by the addition of the following paragraph:—

Every police or resident magistrate hereafter or heretofore appointed shall be deemed to have and to have had authority as such throughout the State.

7.    Section forty-three of the principal Act is hereby tern of

amended by the addition of the following Proviso:—

Provided, also, that when several simple offences are alleged to be constituted of the same acts or omissions or by a series of acts done or omitted to be done in the prose- cution of a single purpose, charges of such offences may be joined in the same complaint against the same person; but if in any such case it appears to the justices that the defendant is likely to be prejudiced by such joinder, they may require the complainant to elect upon which of the charges he will proceed or may direct that the defendant shall be tried separately on each or any of the charges.

8. The following words are hereby added to section ninety- tem egginoet of

three of the principal Act, that is to say:—`'and such justice shall on demand by or on behalf of any law officer (as de- fined by the Crown Suits Act, 1898) certify by writing under his hand, in the form contained in the Fourth Schedule to the said Act or to the like effect, that such forfeiture has taken place."

9.    Section one hundred and thirty of the principal Act grAtt or

is hereby amended by the addition of the following words:—

Every direction of justices to bring a defendant be-

fore their under this section shall be reduced into writing

and signed and have effect as a warrant, and shall be

obeyed and carried into effect by all constables, gaolers,

and other persons to whom it is directed, according to

its tenor.

No. 19.] Justices Act—Amendment. [1919.

Repeal of Sec-

ton 143.	10. Section one hundred and forty-three of the principal Act is hereby repealed.
section between

Insertion of 11. The following section is hereby inserted in the princi-

Sections 164 pal Act between sections one hundred and fifty-four and one

and 156.

hundred and fifty-five :--

Enforcement of Recoguisances.

Enforcement of

recognisances.

154a. (1) When a person bound by a recognisance

under this Act fails in a condition of the recognisance,

See W.A. 1918.

No. 32, s. 93.

complaint thereof may be made and proceedings issued and taken in manner provided in this Act in case com- plaint is made in respect of any matter, and on the hear- ing an order may be made forfeiting the recognisance and adjudging the payment by the person liable of the amount thereof.

(2.) The provisions of this section shall be without prejudice to any other method of enforcement.

Substitution of

new section for 12. Section one hundred and fifty-five of the principal Act

Section 155.	IS	hereby repealed, and the following section substituted:-
Enforcement of

convictions and

155. (1.) When a conviction or order adjudges or requires the payment of a pecuniary penalty or compen- sation or sum of money or costs, then the conviction or order shall direct that the same shall be recoverable in default of payment by execution against the goods and chattels of the person liable, and that in default of pay- ment and of sufficient goods and chattels he shall be im- prisoned for a period determined in accordance with the provisions of section one hundred and sixty-seven, and subject to the provisions' of that section: Provided that the justices may, in lieu of directing that such penalty, compensation, or sum of money or costs shall be recover- able by execution, may direct that in default of payment the person in default shall be imprisoned as aforesaid.

orders.

(2.)

This section applies to an order directing any person to make any periodical payments, and such order shall direct that whenever and as often as default is made in any such payment, the person in default shall be liable to such process of execution and imprisonment or to such imprisonment only as is hereinbefore provided.

(3.) Every such conviction or order as aforesaid

shall have effect according to its tenor, and any neces-

1919.] Justices Act—Amendment. [No. 19.

sary warrant of execution or commitment may be issued

for the purpose of enforcing the same.

(4.) The provisions of this section shall apply to all convictions or orders of justices, notwithstanding the pro- visions of any other Act: Provided that nothing herein shall render any person liable to imprisonment who is expressly exempted from such liability by any Act.

(54 Every conviction or order adjudging or requir- ing the payment (whether periodically or otherwise) of a pecuniary penalty or compensation, or sum of money or costs, which has been heretofore pronounced or made by justices or which has heretofore or shall hereafter be- come enforceable as if so pronounced or made, shall, for the purposes of enforcement, be deemed to direct re- covery in default of payment by execution and imprison- ment as aforesaid, and this section shall apply thereto accordingly.

13. Act is hereby amended by the deletion of the words "such Se° on Section one-hundred and fifty-seven of the principal Amendment of

period as shall have been adjudged by the conviction," and the insertion of the words "a period determined according to the scale in section one hundred and sixty-seven, subject to any reduction ordered under that section" in lieu thereof, and by the addition of the following paragraph, that is to say:—

When portion of the penalty, compensation, sum of money, or costs directed to be levied by the warrant of execution has been levied or paid, due credit shall be given and allowed for such portion in the warrant of commitment.

14. Act is hereby repealed, and the following section is inserted g:eti: iarr Section one hundred and fifty-eight of the principal S ubstittftion.of

t o

in lieu thereof:-

158. In any case in which a conviction or order for Commitmentfort

a penalty or compensation or for the payment of a sum a penalty or ° on c

of m ey or osts does not direct that the same shall be tenpac'td.elea to

recoverable by execution, but directs that in default of payment the person in default shall be imprisoned, then any justice may issue his warrant of commitment of the person in default to gaol, there to be imprisoned for a period determined according to the scale in section-one

No. 19.] Justices Act—Amendment. [1919.

hundred and sixty-seven, subject to any reduction or- dered under that section, unless the sum adjudged to be paid and all costs and charges of taking and conveying such person to gaol (the amount thereof being ascer- tained and stated in the warrant of commitment) are sooner paid. Due credit shall be given and allowed in the warrant of commitment for any portion of such penalty, compensation, sum of money, or costs paid before the issue thereof.

Insertion of

new section	15. The following section is hereby inserted in the prin-
after Section

166.            cipal Act after section one hundred and sixty-five, that is to say:-

Interpleader.

165a. (1.) If a claim is made to or in respect of goods seized under a warrant of execution or in respect of the proceeds or value of the goods by a person not being the person against whom the process has been issued, the clerk of the local court nearest to where the seizure was made, upon application of the officer charged with the execution of the warrant whether an action has been brought against the officer or not, may enter an inter- pleader plaint, and may issue a summons thereon calling before the court the person making the claim, and there- upon any action which has been brought in the Supreme or any other court in respect of the claim shall be stayed.

(2.) The clerk shall also, if the magistrate so directs, by the same summons call before the court any other person whom the magistrate may deem interested in the proceedings.

(3.)

Upon the return of the summons the magistrate of the local court shall have and may exercise such and the same powers as a judge of the Supreme Court has, and may exercise upon the application of the sheriff in the case of goods taken in execution under process issued from the Supreme Court, and may without any consent of parties dispose of the merits of the claim, and decide the same in a summary manner and on such terms as shall be just.

(4.)

The magistrate may allow any person to inter- vene and take part in the proceedings at any stage.

(5.)

The Governor may by rules made in manner provided in the Local Courts Act, 1904, prescribe, with regard to proceedings under this section, such and the like matters as he is empowered to prescribe under sec- tion one hundred and fifty-eight of that Act.

1919.] Justices Act—Amendment. [No. 19.

16. Section one hundred and sixty-seven of the principal =Air Act is hereby repealed, and the following section shall stand !iliot,=.0f in lieu thereof, that is to say:-

167. (1.) The period of imprisonment to be in- serted in a warrant of commitment issued under section one hundred and fifty-seven or one hundred and fifty- eight of this Act shall, where the total amount payable under the warrant is under two pounds, be three days, and in other cases shall be calculated at the rate of three days for. every pound payable (disregarding any frac- tional part of a pound) : provided that in no case shall the period of imprisonment exceed six months.

(2.) Any such imprisonment shall in general be without hard labour, but shall be with hard labour if the justices pronouncing or making the conviction or order shall have determined that such imprisonment shall be with hard labour, which determination such justices are hereby empowered to make notwithstanding that the imposition of hard labour be not expressly authorised by the Act on which the conviction or order is founded.

(3.) Notwithstanding anything in this section, when an order or conviction does not order the payment of any penalty or compensation or sum of money, but orders the payment of costs and when a complaint is dismissed with costs to be paid by the complainant, the period of im- prisonment to be inserted pursuant to this section in the warrant of commitment issued in such case shall not ex- ceed one month.

(4.) When the person imprisoned under any such warrant of commitment shall pay any portion of the amount payable under the warrant, then the period of imprisonment shall be thereby reduced by a period which shall bear the same ratio to the period of imprisonment as the portion paid bears to the total amount that was payable, and the prisoner shall be entitled to be released on the expiry of the reduced period. In calculating any reduction hereunder fractional parts of days shall be disregarded.

(5.) Notwithstanding anything herein, any justices giving any decision may thereby order that the period of imprisonment to be inserted in any warrant of commitment to be issued in respect of any penalty, com- pensation, sum of money, or costs payable under the de-

No. 19.] Justices Act—Amendment. [1919.

cision shall be reduced to such an extent as the justices

think just.

(6.) Any sentence of imprisonment imposed by jus- tices for any offence shall, if the justices so order, com- mence to run from the expiry of any term of imprison- ment for any cause whatsoever which the person sentenced may be undergoing under any such warrant of commit- ment as aforesaid, and any term which any person is liable to undergo hereunder for non-payment of any pecuniary penalty, compensation, sum of money, or costs shall, if the justice issuing the warrant in respect thereof so orders, commence to run from the expiry of any other term of imprisonment for any cause whatsoever which the person so liable may be undergoing.

Insertion of a

new paragraph	17.	The following section is hereby inserted at the end of
at the end of

Part VII. Part VII. of the principal Act :-

Procedure in	182a. Upon the making of any such complaint as
eases of sureties

to keep the	aforesaid, the matter may be proceeded with and heard
Peace or be of
good behaviour.	and adjudicated upon as in the case of other matters com- plaint whereof is made in manner provided in this Act, and the justices shall in dealing with the matter of any such complaint have such and the like powers as they have in dealing with other matters, and it shall be no ob- jection to any order made under this Part that any of the special rules of procedure prescribed in this Part have not been observed.

Amendment of 18.

Section one hundred and eighty-three of the principal Act is hereby amended by the excision of the words "or (b) a fine or penalty is imposed exceeding ten pounds, and in either ease," and by the substitution of the word "and," and by the excision of sub-paragraph (a) of paragraph (2).

Section 188.

Amendment of 19.

Section one hundred and eighty-seven of the principal Act is hereby amended by the addition of the following pro- viso:—

Section 187.

Provided further that, notwithstanding anything hereinbefore contained, in no case shall any surety be accepted unless he justifies to the satisfaction of the jus- tice, and that sureties shall not be dispensed with, except by a police or resident magistrate, unless a deposit of money is made as aforesaid.

Repeal of Sec-	20.	Sections one hundred and ninety-seven to two hun-
tions 197 to 206

dred and six (both inclusive) of the principal Act are hereby

repealed.

1919.] Justices Act—Amendment. [No. 19.

21. The following sections are hereby inserted after sec- sIenceyotn lo sainof new

tion one hundred and ninety-six in Part VIII. of the princi- Part VIII.

pal Act:—

Appeal by way of Order to Review.

197.    When any person who feels aggrieved as com- Te=t°.

plainant, defendant, or otherwise by the decision of any justices shows by affidavit to a judge of the Supreme

Court sitting in court or chambers a prima facie case of

error or mistake in law or fact on the part of such jus- tices, or that the justices had no jurisdiction to give such decision or exceeded their jurisdiction in giving such de- cision the judge may, whether any other remedy is pro- vided by law or not, within one month from the giving of the decision grant the applicant (hereinafter called "the appellant") an order (hereinafter called "an order to review") calling upon the party interested in main- taining the decision and also, if the judge for any special reason so directs, upon the justices to show cause (at a time to be therein mentioned or so soon thereafter as the matter can come on for hearing) why the decision should not be reviewed.

198.   An order to review may be made returnable wiltr,

before the Supreme Court sitting as the Full Court or returnable.

before a single judge sitting in court.

199.   The order to review shall state the grounds Grounds to be

upon which it is sought to review the decision appealed stated In "eL

against, but on the return of the order the court or judge

shall have power to amend or add to the grounds stated.

200. The appellant shall, within ten days after the gAipypeeslelacnurtitto y.

granting of an order to review, enter into a recognisance before a justice, with or without a surety or sureties ac- cording (subject as hereinafter provided) to the decision of the justice, in such sum (not less than twenty pounds) as the justice shall determine conditioned to prosecute his appeal without delay and to submit to the judgment on the order to review and to pay such costs as the court or judge may thereon award, and the appellant shall be- fore proceeding to set the order down for hearing pay the clerk of the petty sessions at which the decision com- plained of was delivered the prescribed fees:

Provided that in no case shall any surety be accepted

unless he justifies to the satisfaction of the justice, and

No. 19.] Justices Act—Amenclineut. [1919.

that sureties shall not be dispensed with, except by a police or resident magistrate, unless a sum of money, fixed by the justice, but not less than twenty pounds, be deposited by the appellant with a clerk of petty sessions, as security for the performance of the conditions of the recognisance.

Stay of	201.	On such recognisance being given, execution
Release of ap-

execution.

pellant on	shall be stayed until the order to review is disposed of
further recog-
nisance.	or the Supreme Court or a judge otherwise orders, and the appellant, if then in custody, shall be liberated upon the recognisance being further conditioned for his ap- pearance before justices within a reasonable time (not less than ten days after judgment has been given on the order to review) to abide by such judgment unless the decision appealed against is reversed.
Service of order

of review. 202. The appellant shall, within the time fixed by

the judge who granted the order, cause an official copy of the order to review to be served on each party, who is thereupon called upon to show cause, and such service shall be effected such number of days before the hearing as is indicated below, that is to say:—

Where the distance from the place The number of days which

where the order is returnable to	must elapse between the ser-
the place where the service is of-	vice and the hearing shall
footed is	be

Not more than 200 miles ... Ten days

More than 200 but not more than

400 miles Sixteen days

More than 400 but not more than

600 miles Twenty-one days

More than 600 miles ... Thirty days

Entry of order

Every order to review shall, within the time fixed by the judge who granted the order, be entered for hearing in the central office of the Supreme Court, and shall be inserted in the proper list, and come on for hear- ing as the Chief Justice may direct.

to review for 203.

hearing.

Appeal from 204. An appeal from the refusal of a judge, whether

refusal to grant

order to review sitting in court or chambers to grant an order to review or to grant it upon any ground or grounds, shall be to the Full Court as defined in the Supreme Court Act, 1880.

1919.] Justices Act—Amendment. [No. 19.

205.    On the return of the order to review, the court a;vrM,Yat

orjudge may, on a consideration of the evidence and grnderretrrev°iew.

materials adduced and brought before the justices, and

if the court or judge thinks fit of any further evidence

either oral or by affidavit, discharge such order to review

or may confirm, vary, amend, rescind, set aside, or quash

the decision appealed against, and any order, conviction,

warrant, or other proceeding founded thereon, and may

remit the case for hearing or re-hearing to the said jus-

tices or to any other justices, with or without any direc-

tion in law, and may prohibit the justices and all other

persons concerned from proceeding or further proceed-

ing in respect of the decision, and may make such other

order as to such court or judgd seems just, and may also,

for such purposes or any of them and without prejudice

to the generality of the powers hereinbefore conferred,

exercise all or any of the powers or jurisdiction which the

court possesses or might exercise upon certiorari, man-

damus, prohibition, or habeas corpus: Provided that not-

withstanding that the court or judge may be of opinion that any point raised by the order to review might be decided in favour of the appellant, discharge the order if he or it considers that no substantial miscarriage of justice has occurred.

206.    Subject to this Act the court or judge may Cost.

make such order as to costs as it or he deems just. "

206a. There shall be no appeal to the Full Court f o udr, from

from any determination of a single judge made on the return of any order to review, but the judge on such re- turn may, if he thinks it desirable, refer such order to review for hearing and determination by the Full Court at the request of any party thereto.

206b. The Supreme Court or a judge shall have Enlargement or

power to enlarge or abridge the time appointed by the arne.dgment of	abrl
preceding sections of this Part or fixed by any order for doing any act or taking any proceeding upon such terms (if any) as the justice of the case may require, and any such enlargement may be ordered although the appli- cation for the same is not made until after the expiration of the time appointed or allowed.

206c. The court or judge, on the hearing of an order cEveneaneeliof pro-

to review, shall have power to determine and ascertain 0Ourt LTV.

No. 19.] Justices Act—A mendin,eut. [1919.

what evidence was given or what proceedings taken be- fore the justices on such evidence or statement of what occurred before the justices including the notes of the justices (if any) as the court or judge may deem suffi- cient, and may rehear the testimony of any witness.

Dismissal for

want of prosecu- 206d. If any appellant makes default in prosecuting

tion.	his appeal without delay or in taking any necessary steps in the presentation thereof, any other party may apply to the judge in chambers by summons served on such appellant for an order discharging the order to review, and the judge shall make such order as shall be just with regard to the subject matter of the application and to costs.
Procedure

where decision 206e. Whenever a decision is given on an order to

reversed.	review, the prescribed officer shall send to the proper cleric of petty sessions a memorandum of the decision of the court or judge, and such memorandum shall be suffi- cient evidence of the decision for all purposes.
Enforcement

of decision of 206f. Any conviction, sentence or order affirmed,

Supreme Court. amended, varied, adjudged, imposed or made by the de- cision of the Supreme Court or a judge thereof in rela- tion to any order to review, may be enforced (subject to any variation made therein) by any justices (whether the justices in respect of whose decision the order to review was granted or not) in the same way as if it had been adjudged, imposed, or made by them, and any justices may issue, make, adjudge or impose all such summonses, warrants, orders, convictions, and sentences as may be necessary to carry into effect any directions contained in any decision of the Supreme Court or judge given in relation to any order to review, and no action or proceedings shall be taken against any justices for enforcing any such conviction, sentence, or order not- withstanding any defect therein.

206g. If any costs ordered to be paid by either party

If costs not

paid, certificate

to be granted. to an appeal hereunder are not paid, the prescribed officer shall, upon application of the party entitled to such costs, grant to him a certificate that such costs have not been paid, and shall therein specify the amount of such costs.

Enforcement of	206h.	Upon production of such certificate to any jus-
order for costs.

tice, the payment of such costs may be enforced in the

1919.] Justices Act—Amendment. [No. 19.

same manner as is hereinbefore provided for enforcing the payment of costs awarded by justices, but the pro- visions of this section are without prejudice to any other method of enforcement.

206i. Any person who appeals by way of order to Appertbeyt

review against any decision of justices, from which he is Leietto; Cd emreg

by law entitled to appeal in a ny other manner, shall be 1.iorletc!otfheatr:

taken to have abandoned any such other right of appeal. Al. o "-

22. Section two hundred and fifteen of the principal Act Repeal a Section 215.

is hereby repealed.

23. The following new section is hereby inserted in the Insertion of now section.

principal Act, and shall stand as Section two hundred and

fifteen:—

Service of Notices.

215. Where a party acts or is represented by a soli- service by

oi Wor

citor, any document, notice, or proceeding required under ag for party.

ctin

this Part of this Act to be served by or upon such party may be served by or upon such solicitor, and service of any such document, notice, or proceeding upon such solici- tor or delivery of the same at his office or sending the same to him properly addressed by post prepaid shall be deemed to be good service upon the party whom such solicitor represents, or for whom lie acts, as upon the day when the same is so served or delivered, or upon which in the ordinary course of post it would be delivered.

The judges of the Supreme Court or any two of them may by rule alter any of the forms in the Second Schedule of the principal Act in such way as they may deem to be necessitated by the amendments made by this Act.	Alteration of
forms.

24.

All copies of the principal Act hereafter printed by the Government Printer shall be printed under the super-	Principal Actto bo printed
as amended.
vision of the Clerk of the Parliaments as amended by this Act, and shall embody any alterations made in the forms in the Second Schedule, and all necessary references to this Act and any amending regulation shall be made in the margin:
Provided that the short title in such copies shall be altered to the Justices Act, 1902-1919, by which title the principal Act as so amended may be cited.

25.

No. 19.] Astice.s. Act—Al endment. [1919.

Section 4, SCHEDULE:

Portions Amended. Amendment.

Section 4 Substitute " other matter " for the words " breach of

duty," in the definition of "defendant."

Substitute the words " any matter (not being a simple offence) " for the words " a breach of duty, " in the definition of " order."

Section 30	Strike out the words " a majority of the justices present " at the end of the first paragraph and substitute the words " the justices present or a majority of them, or if they are equally divided, by the senior justice present."
Section 51	Substitute "other matter" for " breach of duty."
Section 52	Insert the words " or is liable to be dealt with in

respect of" after the word "committed."

Strike out the words "breach of duty" and substitute

the words " other matter."

Section 70 Substitute . " other matter" for "breach of duty."

Section 71	do.	do.	do.	do.
Section 72	do.	do.	do.	do

Section 79 Add the words " The powers given by this and the next succeeding section may be exercised by one justice if only one is present"

Section 86	...	Substitute " other matter " for "breach of duty."
Section 108	...	Strike out this section.

Title of Part VI.	Substitute " other matters " for " breaches of duty."
Section 134	Substitute " other matter " for "breach of duty."

Section 141 do. do. do. do.

Section 150 Strike out the words " or order " and also the words

" or breach of duty " throughout the section.

Insert after the word " aforesaid " the words " and to

subsection 6 of section 167."