Local Courts Act 1863 (SA)

ANNO VICESIMO SEXTO ET VICESIMO SEPTIMO

A.D. 1863.

No. 4.

An Act' to amend the Local Courts Act, 1861.

[Assented to, 12th ~ o i e m b e r, 1863.1

HEREAS great difficulties and delays are often experienced Preamble.

in actions depending in the Local Courts of the Provincc of South Australia, by reason of a want of authority in such Courts to ordcr and enforce the examination of witnesses when the same may be required before the trial of a cause, and to issue commissions for the examination of witnesses out of the said Provincc, or who may be resident at a distance from the Court wherein the cause is to be tried; and it is expedient that such authority should be conferred on the said Courts-Be i t therefore Enacted by the Governor-in- Chief of the Province of South Australia, with the advice and con- sent of the Legislative Council and House of Assembly of the said Province, in this present Parliament assembled, as follows:

E

1. This Act may be cited for all purposes as the " Local Courts shoatitle of act,

Amendment Act, 1863."

2. In the construction of this Act the words " Special Magistrate" shall, unless inconsistent with the context or subject matter, mean the Special or Stipendiary Magistrate or other proper officer ap- Interpretation of

ointed to preside over any,of the Local Courts now established, or

{ereafter to be established in the said Province.

3. I n every action depending in any Local Court, where the debt spacial Magistrate may issue order for

or damage claimed shall exceed Twenty Pounds, the Special RIagis- of

trate, upon the application of any of the parties to such action, and nesaee about to leave the Colony or unable

upon being satisfied that any material witness is about to quit the to attend illness,

' said

Local Courts ~mendment A c t. 1 8 6 3.

said Province, or is unable to attend on the trial of such action from illness or other sufficient cause, may, by writing under his hand and the seal of the said Court, order the examination of such witness on oath, upon interrogatories or otherwise, before such Special Magistrate himself, or before the Clerk of such Court or other person or persons to be named in such order; and may by the same, or any subsequent order or orders, give all such directions touching the time, place, and manner of such examination, and all other matters and circumstances connected with such examinations

as may appear reasonable and just.

Spccial Xagistrate

may issue commission 4. If, in any action depending in any of such Courts, where the

for examination of	debt or damage claimed shall exceed Twenty Pounds, it shall be
witnesses out of the
Province, or who may	made to appear to the satisfaction of the Special Magistrate, upon
reside more than one	the application of any of the parties to such action, that any makerial
hundred miles from
Court whero cause to	witness is resident out of the said Province, or more than one
be tried.	hundred miles from the place whcre the Court for the trial of such cause is situated, such Spccial Magistrate may order a commission to issue under the seal of the said Court for the examination of such witness on oath, by interrogatories or otherwise, and may, by the same or any subsequent order or orders, give 'all such directions touching the time, place, a ~ d manner of such examination, and all other matters and circumstances connected with such examinations as msiy appear reasonable and just.
Order or commiesiou

may be issued at any 5, The order or commission mentioned in the two last preceding

befare or after sections may be made or issued at any time either before or after

appearance. appearance has been entered,

dnncc of witnossea, Compelling atten- 6, When any order shall be made for the examination of witnesses

or production of ~ C U - within the said Province, the 8pccial Magistrate may, in and by thc

mcnts. first order to be made in the matter, or any subsequent order, com-

mand the attendance of any person to be named in such order for the purpose of being examined, or of producing any writings or other

documents to be mentioned in such order, and may direct the atten-

dance of such person to be at his own place of abode, oi elsewhere, if necessary or conveniicnt so to do; which order shall be served pcr- sonally upon the person so required to attend, together with an appointment of the time and place of attendance, in obedience there- to, signed by the person or persons appointed to takc the examina- tion, or by one or more of such persons; and if t l~e person named in such order shall, after being so served as aforesaid, neglect or fail to attend at the time and place mentioned, or to produce the writings, or other documents therein mentioned, and shall not give a good and sufficient excuse for his non-attendance, or the non-production of such writings or other documents, to be allowed by the person or persons so appointed to takc the exambation as aforesaid, he shall forfeit and pay a sum not exceeding One Hundred Pounds, to be recovered by the party aggrieved by action in any Court of compe- tent jurisdiction: Prouided always, that every person whose atten- dance shaU be SQ required, shall be entitled to the like conduct

money

26O & 27" VICTORIB, fro. 4.

Local Courts Amendment A c t. 1 8 6 3.

money and payment for expenses and loss of time, as upon atten- dance at a trial: Providecl also, that no person shall be compelled to produce, under any such ordcr, any writing or other ciocument that he could not be cornpellable to producc at a trial of the cause.

7. The powers and authorities contained in the 201st section of speo'al W i s t r a b may issue order to-

the " Local Courts Act, 1861" shall apply to any prisoner required b ring up prisoner for

to be examined undcr anyao~der or commission issued under the emmhationg

authority of this Act, and any Special Magistrate is hereby authorized

to issue an ordcr as in such section mentioned in the same manner as

if such prisoner were required as a witness on the trial of any cause

before the Court; and any Sheriff, Gaoler, or other officer, having

the custody of any prisoner, is hereby required to obey such order in

the same manner as if the same mere issued under the auth0rit.y

contained in the said 20 1 st section.

8. Every person authorized to take the examination of witnesses Examination of wit-

by any ordcr or commission madc and issued in pursuance of this u,,n,at~,	nesses to bo taken
Act, may and hc and they are hereby authorized and required to take all such examinations upon the oath or affirmation of the witnesses, to be adrninistcred by the person so authorized; and if upon such oath or affirmation any person making the same shall wilfully and corruptly give any false evidence, every person so oRending shall be deemed and taken to be guilty of perjury.

9. The Special Magistrate, if he shall take the examination him- P W ~ S app0int.d for

toking e~arnir~atione

self, or the Clerk of the Court, or any other person to be named in m,y ,port t3 the

any such ordcr or commission as aforesaid for taking any examina- ~; ;; ~: ~ e " e ~

tion in pursuance thereof, may, and he and they are hereby required ~itnessl-8.

to make, if necd be, a special report to the Court touching such

examination, and thc conduct or absence of any witness or othcr

pe18son tlereon or relating thereto; and the CO& inay thereupon

institute such proceedings and make such ordcr and orders upon

case of conteqpt of Court. such report as justice may require, and as may be instituted in any 10. In all cases in which such order or commission shall be issued Examinations to be received in evidenco

as hereby authorized, the examinations or depositions certified under without roof of siz-

the hand of the Special Magistrate, Clerk bf thc Court, or other ?$'~~f~mmi6"

person taking the same, shall and may, without prod of the signa-

ture of such certificate, bc rcceived and read in evidence, saving all

just exceptions.

11. The costs of every ordcr to be made for the examination of Coste,

witnesses under any commission or otherwise by virtue of this Act, and of the proceedings thereupon, shall, for all business transacted within the said Provmce, be allowed as between party and party, according to the lower scale of costs in the Superior Courts of Com- mon Law at Westminster; ancl as to business transacted out of the said Yrovince fair and reasonable costs shall be allowed, according to the amounts actually and bond we paid and expended in md

about

& 26" & 27"VICTORIX, No. 4.

Local Courts Amendment Act.-1 863.

about transacting such business; and all such costs shall be costs

in the cause, unless otherwise directed by the Special Magistrate making the order for the examination, or by the Court on the trial

of the cause.

to hsame

in Gupreme Court.	12. In all cases not otherwise herein provided for, the practice as to applying for an order for the examination of witnesses or for a commission, and the proceedings to be thereupon had, shall, as far
as possible, be the same as the practice in the Supreme Court in like
cases.
judgment into the

Costa of removing 13. When any j~idgment shall be removed into the Supreme

Bupreme Court.

Court by certiorari under the 54th section of the Local Courts Act of

186 1, the costs of removing such judgment shall be recoverable by the

party removing the said judgment from the opposite party in the same manner as the costs of a writ of execution from thc Supreme Court are now recoverable.

Cldme to good3 taken

in sxeoution may bo

14. Arl claims mentioned or referred to in the l4.l th section of

the said Local Courts Act of 1861, to or in respect of any goods or

m d e by &,L . , ,

chattels taken in execution may bc made by telegram, and the de- livery of the telegram tq thc bailiff shall be held equivalent to the delivery of the signed copy thereof lodged in the telegraph office.

Dcpsit9 tobailiffs

country Local Courtg 15* All deposits referred to in the 145th section of the said Local

maybe made to the Coults Act of 1861 to the bailiff of any Local Court out of Adelaide,

'leA the Ad@1aide may be made to the Clork of the Adelaide Local Court, and the

Wsl Court.

Clerk of the Adelaide 1,ocal Court shall, if required, forthwith

sign a telegram or ccrtificate to the said bailitf, that such deposit has

been made.

'In the name and on behalf of the Queen I hereby assent to

this Act.

I). DALY, Governor.

Adelaide: Printed by authority by W, C, Cox, Government Printer, Victoria-square,