Masters and Servants Act 1847 No 9a (NSW)

doubts have ar isen as to t h e ex ten t of s u m m a r y jur isdic t ion created by t h e said reci ted A c t a n d i t is advisable to remove the same Be i t therefore enacted by H i s Excel lency t h e Governor of New South W a l e s b y

No. IX.

An Act to amend an Act inti tuled " An Act to

" amend and consolidate the Laws between

" Masters and Servants	in New South	Wales."
[16th August, 1847.]

WH E R E A S an A c t was passed in " between Masters and Servants in New South Wales " A n d whereas

t h e n i n t h year of H e r present

Majesty in t i tu led " An Act to amend and consolidate the Laws

by and with t he advice and consent of the Legislat ive Counci l thereof That it shall a n d m a y be lawful for any two or more Jus t i ces of t he Peace to hear and de termine in a s u m m a r y m a n n e r all informat ions for penal t ies and all compla in ts differences or disputes of whatsoever n a t u r e or descript ion which shall happen, or arise unde r t he said recited Ac t or unde r th i s Ac t whe ther t he same be between any servant and his mas t e r or employer or t he overseer or agen t of such mas t e r or employer or between any person or persons whomsoever and t h e order or award of such Jus t ices shall be final and conclusive in all such cases unless where ei ther pa r ty appeal to t h e Cour t of Quar t e r Sessions in

t h e m a n n e r provided by t h e said recited Act .

2. A n d be i t enacted Tha t no suit informat ion ind ic tment
prosecut ion or o ther proceeding whatsoever shall be commenced or

prosecuted in any m a n n e r howsoever against any Jus t i ce or Jus t i ces

of t he Peace or any o ther person for any m a t t e r or t h i n g al ready done

by h i m or t h e m for w a n t of any power or au thor i ty in such Jus t ices to hear and de termine t he same in a s u m m a r y way unde r t he said reci ted Ac t and if any action suit informat ion ind ic tmen t prosecut ion or proceeding whatsoever shal l have been commenced aga ins t any such Jus t i ce or Jus t ices or other person or persons ac t ing under and in obe­ dience to any w a r r a n t order or conviction of any such Jus t ice or Jus t i ces

in respect of a n y t h i n g already done for wan t of s u m m a r y jur i sd ic t ion

the re in u n d e r t he said recited Ac t it shal l be lawful for t h e defendant

or defendants to apply to the Supreme Cour t or any J u d g e thereof to s tay such proceedings and such Cour t or J u d g e respectively is hereby requ i red to s tay such proceedings accordingly and to m a k e such order as to t h e costs of t he applicat ion as to t he said Cour t or J u d g e shall seem lit.

8. A n d whereas it was recited by t h e said A c t a m o n g other

t h ings t h a t " servants in the Uni t ed K i n g d o m in Br i t i sh Colonies in t he

" Br i t i sh Eas t Ind i a Possessions and in Fore ign Countr ies occasionally

" c o n t r a c t by inden tu re or o ther wr i t t en agreement w i th persons

" abou t to proceed to or actual ly resident in New South Wales " A n d whereas doubts have arisen whe the r such contracts by inden tu re or o ther wr i t t en agreement arc subject to t h e s u m m a r y jur i sd ic t ion of Jus t i ces of t h e Peace a n d it is expedient to remove t h e said doubts Be it therefore declared and enacted T h a t all such con t rac t s by in­ den tu re or o ther wr i t t en ag reemen t shall be of t he l ike force and effect wi th in the said Colony of New South Wales as if they had ac tua l ly been m a d e a n d executed by t h e respective par t ies there to

wi th in t he same and shall subject every such p a r t y for any breach
thereof upon s u m m a r y conviction by or before any two or more

Jus t i ces to t h e l ike fines penal t ies and pun i shmen t s as in and by the said reci ted A c t are provided for any wilful violat ion of t h e provisions of any inden tu re or o ther wr i t t en agreement actual ly m a d e or executed wi th in the said Colony or for any misdemeanor miscarr iage mis­ conduct or i l l -behaviour of any mas te r or servant wi th in t he same Provided t h a t no such cont rac t shall be b ind ing on any person to serve for a longer period t h a n five years .

4. A n d whereas by the said recited Ac t it was enacted a m o n g

o ther th ings t h a t u p o n the discharge of any servant or upon the te rmi­ na t i on of his service he should receive from his mas te r and his mas te r should give to h im a certificate of his service and discharge and no pena l ty was provided for the forging of any such certificate of discharge as aforesaid Be i t therefore enacted Tha t any servant or o ther person who shall forge or knowingly use any forged certificate pu rpo r t i ng to be a discharge of any person or persons from any service as aforesaid shall be deemed gui l ty of a misdemeanor and on being summar i ly convicted thereof by or before any two or more Jus t ices of t he Peace who shall

hereby

hereby have power and au tho r i t y to de te rmine t he same shall be l iable to impr i sonment wi th or wi thou t hard labor for any period no t exceed­

ing t h r ee ca lendar m o n t h s .

5. A n d whereas doubts a r e en te r ta ined as to whe ther it is no t

impera t ive on Jus t i ces u n d e r t h e said reci ted A c t to examine both compla inant and defendant upon oath a n d i t is advisable to remove t h e same Be it therefore enacted Tha t it shal l a n d may be lawful fo r

any Jus t i ce or Jus t i ces of t he Peace ac t ing unde r t he said reci ted A c t o r

unde r th i s A c t to exercise his or the i r discret ion as to t he examinat ion of a n y compla inan t or compla inants or defendant or defendants unde r

t he same.

6. A n d whereas doubts are en te r t a ined a s to whether it i s lawful to examine a wife as witness for her husband under t h e said recited A c t a n d whereas it is advisable to remove the same Be it therefore enacted Tha t it shall a n d may be lawful fo r any Jus t i ce ac t ing unde r the said reci ted Act or unde r th i s Act to receive t h e evidence of a wife as a witness f o r h e r husband e i ther as compla inan t

or defendant unde r t he same	Provided always nevertheless t h a t i t
shal l and m a y	be lawful for such J u s t i c e to exercise his discretion as

to the examina t ion of any such wi tness .

7. A n d whereas t h e said reci ted A c t conta ins no provision for

s u m m a r y	adjudication	in	cases where servants h i red by inden tu re or
other wr i t t en	ag reement	in t he U n i t e d	K ingdom in Br i t i sh Colonics in

the Br i t i sh E a s t I n d i a Possessions or in Fore ign Countr ies for service in th i s Colony are re ta ined or employed and i t is advisable to provide for the same Be it therefore enacted T h a t if a n y person shall wilfully or knowingly hi re or employ a n y such servant whatsoever a l ready employed or re ta ined by any o ther person every person so offending shall for every such offence being summar i ly convicted thereof by or before any two or more Jus t i ces of t h e Peace forfeit a n d pay a s u m n o t exceeding twen ty pounds one half thereof to be paid to t h e informer in such case.

8. A n d be it enacted Tha t in cases where t h e neares t gaol may be at a dis tance grea te r t h a n t h i r t y miles t h e neares t publ ic lock-up or watch-house may be used as a gaol u n d e r th i s and the said recited Act Provided a lways t h a t n o t h i n g here in conta ined shall author ize t he impr i sonment in such publ ic lock-up or wa tch -houses of a n y person under th i s or t h e said recited Ac t for a longer period t h a n o n e week.

9. A n d be it declared and enacted Tha t in every case in which a s u m m a r y jur isd ic t ion is vested in a n y Jus t i ces u n d e r th i s or the said reci ted Act t he same shall be exercised only by such Jus t ices in some Cour t of P e t t y Sessions duly appoin ted and publicly notified in t h e
New South Wales Government	Gazette.

10. A n d whereas doubts are en te r ta ined as to t h e mode of enforcing the p a y m e n t of fines a n d penal t ies in cer tain cases under

t h e said reci ted Ac t and it is advisable to remove the same Be it therefore enacted T h a t if any fine or pena l ty awarded under t h e said A c t or u n d e r th i s A c t shal l not be paid wi th in t w e n t y - o n e days after t he conviction or award order ing i t was made the same may be enforced by the convict ing Jus t ices by w a r r a n t of distress a n d sale of t h e goods a n d chat te l s of t h e person or persons convicted or agains t w h o m such award shall be given.

1 1 . A n d whereas t h e said recited Act specifies no period of

l imi ta t ion fo r compla in ts f o r non-payment of wages a n d it is advisable to define t h e same Be i t therefore enacted Tha t no conviction order or award shall be m a d e or had unde r t he said reci ted A c t or th is Act unless compla in t be made wi th in six m o n t h s from the t ime when the offence breach of agreement or cause of complaint arose.

12. A n d whereas no period has been specified unde r t he said

reci ted A c t for l imi ta t ions of actions agains t persons act ing unde r t h e

same Be i t therefore enacted Tha t no act ion a t law shall lie agains t

any Jus t i ce or Ju s t i ce s of t h e Peace for any ma t t e r or t h i n g which m a y

be done or commanded to be done by h i m or t h e m in pu r suance of t he provisions of t h e said reci ted Act or th i s Ac t unless there be direct proof of cor rup t ion or malice and unless such act ion be commenced wi th in three calendar m o n t h s after t he cause of act ion or complaint shal l h a v e ar isen and if any Jus t i ce or Jus t i ces shall be sued for any m a t t e r or t h i n g done in pur suance of th is or t h e said reci ted A c t he or t h e y may plead t h e general issue and give th i s Act and t h e special

m a t t e r in evidence.

13. A n d be i t enacted That in all cases under t he said recited Act or under th i s Act all proceedings by s u m m o n s or w a r r a n t wi thout a formal information in wr i t ing shall be good valid and effectual to all in ten t s and purposes as if formal informat ion in wr i t ing had been exhibi ted Provided always t h a t in every such s u m m o n s or warrant, the general na tu re of t h e charge shall be succinctly s tated and t h e or iginal compla in t shall be made on oath .

1 1 . Provided always and be it enacted Tha t no th ing in th is or

under t h e said reci ted A c t shall be deemed to author ize t he imprison­

m e n t of any female unde r t he same.
15. Provided always and be it enacted Tha t no th ing in th i s or the said reci ted Act contained shall be deemed or const rued to apply to any na t ive of any savage or uncivil ized t r ibe inhab i t ing any I s l and or Coun t ry in t he Pacific Ocean or elsewhere a n y t h i n g there in or herein

to t h e con t ra ry no twi ths tand ing .

16. A n d be i t enacted Tha t if any person shall feel himself aggrieved by any conviction order or award made by any Jus t ices of t he Peace under and by v i r tue of th is Ac t or t he said reci ted A c t it shal l be lawful for such person to appeal from such conviction order or award to t he neares t Cour t of Qua r t e r Sessions in t he same m a n n e r and upon the same t e rms t h a t any person may now appeal aga ins t any

convict ion unde r t he said reci ted Ac t .

17. And be it enacted Tha t th is Act shall commence and take effect from and after t he first day of A u g u s t nex t and t h a t t h e said recited A c t and this Ac t shall be and con t inue in force un t i l t he th i r ty - first day of December in t he year of our Lord one t housand eight hund red and fifty.