Moreton Bay Supreme Court Act 1857 No 21a (NSW)

No. XXV.

An Act to provide for the better Administrat ion of Jus t ice in the District of Moreton Bay. [11th March, 1857.]

WH E R E A S is expedient to establish wi th in t h a t Dis t r ic t a separate Cour t to be

hav ing regard to t he popula t ion a n d grea t ex ten t of

t he Dis t r ic t of More ton Bay and its distance from Sydney i t

presided over by a Res iden t J u d g e so t h a t jus t ice m a y be the re in adminis tered in all causes bo th civil and cr iminal wi thou t t h e delays and inconveniences a t t endan t on t he hold ing of Circui t Cour t s only and t h e necessity of resor t ing to Sydney for t h e in i t ia t ion of sui ts and proceedings as a t present Be i t therefore enacted by the Queen ' s Most Exce l len t Majesty by and wi th t he advice and consent of t h e Legislat ive Counci l and Legislat ive Assembly of New South Wales in Pa r l i amen t assembled and by the au thor i ty of t he same as fo l lows:—

1. On and from the first day of Apr i l nex t t he Ac t of Council passed in t h e n ine t een th	year of H e r Majesty 's	re ign	in t i tu led	"	An
" Act for	the appointment	of an additional	Judge	of the	Supreme

" Court and to provide for the more effectual Administration of Justice

" in the District of Moreton Bay until the establishment of a separate " Court therein " except only t h e first section thereof and except as to t h e m a t t e r hereinafter specially excepted shall be and s tand repealed.

2. On a n d after t he said first day of Apr i l now next t he r e shal l be holden a t Br i sbane in and for t h e said Dis t r ic t a Cour t of Civil and Cr imina l Ju r i sd ic t ion which Cour t is hereby erected and established as a Cour t of Reco rd to be called t he " Supreme Cour t a t More ton B a y " and to be ho lden by t h e J u d g e appointed or hereafter to be appoin ted unde r t h e au tho r i t y of t h e said first section of t h e A c t hereinbefore men t ioned who shall be called t he Res ident J u d g e of

More ton Bay.

3. For t he purposes of th i s A c t t he Dis t r ic t of More ton Bay

shall be t a k e n to comprise all such por t ions of t he Colony of N e w

South W a l e s as lie to t h e n o r t h w a r d of t he sou the rn boundar ies of t h e

Police Dis t r ic ts of Br i sbane Ipswich W a r w i c k D r a y t o n and Sura t a n d of a l ine west in extension of t he sou thern boundary of t h e said Pol ice Dis t r ic t of Sura t to t he eas tern boundary l ine of the Colony of Sou th Aus t ra l i a .

sary

4. W i t h i n t h e l imi ts of t h e said Dis t r ic t such Res iden t J u d g e

shall have exercise and enjoy all such and the l ike powers jur i sd ic t ion and au to r i ty as now are or can be legally exercised, by t h e Sup reme

Cour t of N e w South W a l e s or b y all or any of t he J u d g e s thereof

collectively or individual ly.

5. The said Res ident J u d g e a t More ton Bay wi th respect to all offences commit ted within the l imits of t h a t Dis t r ic t shall exclusively

have jur isdic t ion and wi th respect to offences commi t t ed wi th in any

o ther p a r t of t h e Colony the J u d g e s at Sydney shall	exclusively have
jur isdic t ion and in l ike m a n n e r wi th respect t o	act ions and other pro­
ceedings a t Law and sui ts and proceedings in E q u i t y and the	g r a n t i n g
of probates and le t ters of admin is t ra t ion or orders to collect	t h e
Res ident J u d g e shall exclusively have jur isd ic t ion	over persons resid­

ing and proper ty s i tuate wi th in t he Dis t r ic t of More ton Bay a n d t h e

J u d g e s of t h e Supreme Cour t	a t Sydney	shall	exclusively have j u r i s ­
diction over persons res iding	a n d proper ty	s i tuate wi th in all	o the r

par t s of the Colony b u t so never theless t h a t no venue shall be neces­

sary to be laid in any case civil or c r iminal after t h e pass ing of	t h i s
Ac t o ther t h a n is now necessary to be laid in any such case.

6. P rov ided always t ha t n o t h i n g in t h e preceding section shall

be cons t rued to l imi t t he jur isdic t ion of such	Res ident	J u d g e	in
respect of any pa r ty absent from the	said Dis t r ic t or	t he	jur isd ic t ion

of t h e J u d g e s a t Sydney in respect of any p a r t y resident in t he said District or elsewhere in any case where an action suit or other proceed­ ing m i g h t now by law be commenced or carr ied on in t h e Supreme Cour t a t Sydney in t h e absence of such pa r ty from N e w South Wales .

7. Provided always t ha t t h e decision of such Res ident J u d g e in any m a t t e r only which would in Sydney proper ly belong to t h e full

Cour t and every genera l ru l e m a d e by such J u d g e may be b rough t

u n d e r t h e review of t h e J u d g e s of t he Supreme Cour t s i t t ing in Sydney in Banco by way of appeal or otherwise in such m a n n e r and form and on such t e r m s to be imposed on the l i t iga t ing par t ies respectively a n d subject to such ru les and regula t ions in all o ther respects as t he said las t -ment ioned J u d g e s shall from t ime to t ime in t ha t behalf m a k e and

prescribe	Provided always t h a t no appeal shall be allowed from any
order for the g r a n t i n g of a re-hear ing only	or of a new t r ia l or of any

wri t of a t t a c h m e n t or of any in ter locutory order merely whereby t h e

mer i t s of t he case shall no t be concluded.
S. I t shal l be lawful for t he said Res ident J u d g e from t ime to t ime a t h is discretion and on such t e rms as he shall t h i n k fit to impose in any m a t t e r civil or c r iminal pending before h i m to s ta te or cause to be s ta ted a n d to t r ansmi t to t he J u d g e s a t Sydney unde r his h a n d for the i r opinion and decision thereon any po in t or po in ts of law and t h e said J u d g e s after a r g u m e n t before t h e m (or wi thou t a r g u m e n t if they t h i n k fit) shal l as soon as convenient ly m a y be certify and t r ansmi t to such J u d g e the i r opinions and decision the reon accord­

ingly which decision shall thereafter	on t he point or m a t t e r in ques t ion
be b ind ing and conclusive.

9. A long the borders of the l ine which shal l divide t h e said

Dis t r ic t from the other pa r t s of N e w South W a l e s and t h r o u g h o u t a

space or t r ac t of coun t ry ex t end ing twenty- l ive miles on each side of

such line the J u d g e s of t he Sup reme Cour t a t Sydney and the said Resident J u d g e shall respectively have a concurren t jur i sd ic t ion in all cases c r imina l as well as civil.

10.    E v e r y wr i t of execut ion a n d wr i t of subpoena issued out of

t h e Supreme Cour t a t Sydney or by t h e said Resident J u d g e and every ru le of Cour t or order made and every wr i t of a t t achmen t g ran ted	by t h e said Cour t or such Res iden t J u d g e shall be of equal force a n d
validity and shall or lawfully m a y be served and enforced or carr ied
in to effect respectively according to t he tenor thereof in every pa r t of N e w South Wales inc lud ing More ton Bay Provided t h a t no t h ing in th i s section conta ined shall be const rued to confer on t h e said Res ident J u d g e any or iginal jur i sd ic t ion over any person or m a t t e r o ther t h a n a n d except as first aforesaid.

1 1 . The said Res ident J u d g e shall or lawfully may on all

occasions where by law or cus tom t h e seal of a Cour t is used have and use a seal similar to t h a t of t he Supreme Cour t of N e w South Wales excep t t h a t on the seal used by such Res iden t J u d g e t h e words " Supreme Cour t a t More ton B a y " shall be engraven ins tead of the words " Supreme Cour t of New Sou th W a l e s . "

12. The plaintiff in any act ion a t law commenced a t More ton

Bay may proceed by foreign a t t achmen t in t he m a n n e r prescr ibed by the Ac t in t h a t case made in respect of any defendant not residing wi th in t ha t Dis t r ic t and in such case no publ icat ion of not ice as to such a t t a chmen t shall be necessary other t h a n in two of t he publ ic newspapers publ ished in the Dis t r ic t and the plaintiff in any act ion

commenced

commenced a t Sydney may proceed by foreign a t t a c h m e n t in respect of any defendant res iding at More ton Bay in t h e same m a n n e r respectively as if such defendant resided out of t h e Colony and no plea in aba temen t for t h e nonjoinder of any person as a defendant shall be susta ined where t he place of residence of such person (if t he act ion be pend ing at Sydney) shall be wi th in t h e Dis t r ic t of More ton Bay or where (if t he action be pend ing in t h a t Distr ic t) such place of residence shall be in any o ther p a r t of the Colony.

13 . The provisions of t he Ac t of Council passed in t h e nine­

t e e n t h year of H e r Majesty 's re ign in t i tu led " An Act to give further

" remedies to Creditors against persons removing from one Australasian " Colony to another" shall be appl ied in reference to t h e Dis t r ic t of More ton Bay in t he same m a n n e r as if t he said Dis t r ic t were a separa te

Aus t ra las ian Colony.

1 1 . I t shall be lawful for t h e Governor wi th t h e advice of the

Execu t ive Council t o appoint a Sheriff a t and for More ton Bay for t he discharge wi th in the l imits thereof of all t he duties by law apper­ t a in ing to t h e office of Sheriff or which are or lawfully m a y be assigned to t h a t officer to be discharged a n d t h e Sheriff of t he Colony

shall no t be in any m a n n e r responsible for t he acts or defaults	of t he
Sheriff so appointed.

15. Every fee now by law payable to t h e Sheriff of N e w South Wales or to his Bailiffs or payable to t he Mas te r in E q u i t y P ro thono- ta ry or Chief Commissioner of Insolvent Es ta t e s a t Sydney or to the officer for Regis t ra t ion of Deeds the re or to the Commissioners for t ak ing affidavits i n N e w South Wales or any of t h e m shall be equal ly payable in More ton Bay to t he appropr ia te officer or officer hav ing t he l ike duties appointed unde r th i s A c t and shall be demanded received and accounted for by every such officer accordingly.

16. The Governor wi th the advice of t he Execut ive Council shall appoint for the said Cour t at More ton Bay one pr incipal officer to be called t h e " R e g i s t r a r " of t he Court who shall possess t he powers and perform the duties of P r o t h o n o t a r y Mas te r in Equ i ty and Reg i s t r a r of Deeds and also such o ther duties as shall from t ime to t ime be requ i red of h im by any general ru le of t h e said Cour t and the re shall or m a y be appointed as aforesaid such o ther officers clerks and servants as may from t ime to t ime be deemed by the Governor a n d Execut ive Council to be necessary.

17. The said Res iden t J u d g e lawfully m a y whilst so resident

in v i r tue of such his office preside as Cha i rman of any such Cour ts of

Genera l or Q u a r t e r Sessions as t he said Governor shall from t ime to

t ime by Proc lamat ion for t h a t purpose appoin t and the said Regis t ra r

shall act as Clerk of the Peace in re la t ion to such Cour t Provided tha t in case any Cour t of Genera l or Qua r t e r Sessions shall be holden elsewhere t h a n a t Br i sbane t he said Reg i s t r a r may appoin t some other person to act as his deputy thereat .

18. The said Res ident J u d g e shall t r y without a j u r y all civil

act ions in which t he s u m or m a t t e r in dispute shall no t exceed twenty

pounds and he shall also t r y without a j u r y all civil act ions in which t h e sum or m a t t e r in dispute shall exceed twen ty pounds and shall no t exceed fifty pounds unless one of t he par t ies shall requi re a jury and i n every action for or in respect of a sum or m a t t e r no t exceeding fifty pounds t h e form of process and p leading shall be the same (or as near the re to as c i rcumstances will pe rmi t ) as are now in use in the Court of Reques t s in Sydney and in such act ion t he charges shall not exceed (if t he sum or m a t t e r in ques t ion be no more t h a n twenty

pounds) one-half	t he a m o u n t allowed on taxa t ion in ord inary cases in
in the Supreme Cour t or (where t he sum or m a t t e r	in quest ion is

above twen ty pounds) two- th i rds of t he a m o u n t so allowed.

19. I n every such action every defence which would be good in E q u i t y shal l be available a l though not ordinari ly cognizable a t L a w and every demand proper ly cognizable in E q u i t y only may be proceeded for in any such act ion and i t shall be lawful for any cestui que t rus t to sue in his own n a m e and for par t ies c la iming as legatees or unde r t he s t a tu t e of d is t r ibut ions to sue t h e executor or adminis t ra tor A n d the Cour t m a y in every case g r a n t a new t r ia l for sufficient cause

whe the r the t r ia l was by a j u r y or not .

20. The Res iden t J u d g e shall in respect of all estates seques­ t r a t ed by t h e Cour t as insolvent and all persons whose estates have been so sequestrated have all t he powers and shall or may discharge all t he dut ies inc ident to t he office of Chief Commissioner of Inso lvent Es ta t e s a t Sydney Provided t h a t whenever he shall in t h a t capacity g ran t refuse or suspend the certificate of any insolvent his decision shall (if appealed from) be reviewed by h im and confirmed reversed or var ied in open Cour t as upon a re -hear ing Provided also t h a t t he Resident J u d g e may direct all or any of t he meet ings of creditors in any case as occasion m a y requ i re and all proof of debts therea t to t ake place before t h e Reg i s t r a r or (in his absence) before t he Official Assignee.

2 1 . I t shall be lawful for t he Governor wi th t h e advice of t he

said Execu t ive Counci l to appoin t from t ime to t ime some fit and proper person for t h e said Dis t r ic t of More ton Bay (such person be ing a Bar r i s te r ) by w h o m and in whose n a m e all cr imes misdemeanors and offences cognizable in t he Supreme Cour t and in t h e several Cour ts of General and Q u a r t e r Sessions shall be prosecuted wi th in the aforesaid l imits of Moreton Bay Provided always t h a t no t h ing herein contained shall be const rued to l imit or control any au tho r i t y vested by law in

H e r Majes ty ' s At to rney General for t he Colony.

22. I t shall be lawful for t h e Governor to appoint some fit person a t Br i sbane to be t he Official Assignee of and for Inso lvent Es ta t e s a n d to be Cura to r of In t e s t a t e Es ta t e s as also of other p roper ty exposed or l iable to waste left by persons who shall die leaving proper ty within t h e Dis t r ic t and which would or m i g h t by law if this Act h a d no t been passed have been collected and adminis tered by the

Cura to r of I n t e s t a t e Es t a t e s a t Sydney.

23. The person so appointed shall as such Cura to r in respect of the estates and proper ty be longing to persons so dying which he shall be directed or empowered to collect have all t he powers of t he Cura tor of I n t e s t a t e Es ta t e s at Sydney and shall discharge t he duties incident

to t h a t office a n d be ent i t led to t h e commission by law payable to an

Official Assignee d ischarging those duties and t h e several Clerks of t he Bench in t h e Dis t r ic t of More ton Bay shall be his Agen t s for t h e collection of all such estates and proper ty in l ike m a n n e r as they now

are by law A g e n t s of t h e Cura to r at Sydney.

24. Such Official Assignee and Cura tor shall in each capacity in all ma t t e r s connected wi th t h e duties of e i ther office be deemed an officer of t h e Supreme Cour t at More ton Bay and be subject to t he ru les and orders of t h e Cour t accordingly and shall before en te r ing on such duties give such securi ty by bond to H e r Majesty for the due performance of those dut ies and t h a t he will duly account for and pay in to t h e Cour t or t o t h e par t ies ent i t led the re to all p roper ty a n d moneys coming to his hands in ei ther capacity as the Governor shall direct.

25. Eve ry provision contained in the several Ac ts passed and now in force r e l a t ing to J u r i e s shall be in force and be applicable with respect to and for t h e purposes of all prosecut ions act ions and pro­ ceedings in t h e said Cour t at More ton Bay and for t h e purposes of the said Acts t h e said Cour t and t h e Res iden t J u d g e and Sheriff of More ton

Bay

Bay respectively shal l have all t he powers and duties and be subject to the same liabilities as by t h e same Ac t s are conferred or imposed on the Supreme Cour t a n d i ts J u d g e s a n d on the Sheriff of New Sou th Wales respectively.

2G. Every Commissioner of t h e Supreme Cour t for t a k i n g

affidavits or examina t ions now or hereafter appoin ted a t any place wi th in t he Dis t r ic t of More ton Bay shall have the same power as if th is Act had not been passed and every such Commissioner appoin ted or to be appoin ted a t any place out of t ha t Dis t r ic t shall have all t he powers also of a Commissioner of t he Supreme Cour t of More ton Bay.

27. I t shall be lawful for the Governor by Proc lamat ion issued

for t h a t purpose to appoin t from t ime to t ime places o ther t h a n

Br isbane wi th in t h e said Dis t r ic t a t which s i t t ings of t he Cour t shal l

be holden and t h e Res iden t J u d g e shall hold s i t t ings of the Cour t accordingly a t such t imes as he shall by genera l ru le or rules appoint .

28.    For t he purpose of ca r ry ing th is Ac t and t h e objects thereof

in to effect	and also for t h e regula t ion of t h e pract ice and proceedings
of t h e Cour t and i ts officers	and touch ing t h e admission of pract i ­

t ioners and t h e fees to be paid to t h e m the said Res ident J u d g e shall have power from t ime to t ime to m a k e all such general ru les as he may t h i n k proper Provided t h a t a copy of every general ru le so m a d e shall be t r ansmi t t ed wi th in s ixty days nex t following to t he Governor to be by h im laid before t he Legislat ive Council and Legis­ lat ive Assembly respectively.

29. After t he commencemen t of th i s Act all Crown g ran t s wills a n d o ther i n s t rumen t s affecting land wi th in t he Dis t r ic t of More ton Bay n o t t h e n already enrolled or registered shall or may be enrolled or registered as t h e case may requ i re in t h e office of t he Regis­ t r a r of t he said Supreme Cour t at More ton Bay and not in t h e office for reg is t ra t ion of deeds a t Sydney and for all purposes of a n d con­ nected wi th such enro lment and regis t ra t ion the said Reg i s t r a r shal l have and be subject to all such and t h e same powers liabilities and duties in every respect as t h e officer for t h e regis t ra t ion of deeds a t Sydney has or would have and is or would be subject to in respect of the l ike g ran t s wills and in s t rumen t s enrol led or registered or which of r igh t ough t to be enrolled or regis tered in t h e said office for regis­ t ra t ion of deeds at Sydney.

30. The proper officer for t h e regis t ra t ion of deeds a t Sydney

shall as soon as convenient ly may be after t h e commencement of this Act m a k e out and t r ansmi t to t he said Reg i s t r a r at Br i sbane ex t rac t s

certified unde r bis h a n d from all memoria ls and copies of i n s t r u m e n t s

affecting land wi th in t h e said Dis t r ic t registered or deposited for regis­ t ra t ion in t he said office a t Sydney and all such ext rac ts shall be received by the said Reg i s t r a r at Br isbane and be by h im entered a n d preserved and shall be of t h e same force and effect to all in ten t s and purposes as t he or iginal memoria ls or copies a t Sydney.

3 1 . Every ex t rac t so made out and t ransmi t t ed shall contain

t he par t icu lars of one registered memor ia l or copy only and shall s ta te in co lumns for those purposes t he da te of the i n s t rumen t t h e names of t he part ies the re to t h e description of t he lands affected or pu rpo r t ing

so to be the estate or t e r m conveyed or s tated in t he h a b e n d u m so to

be t he considerat ion s tated in t he i n s t r u m e n t t h e names of the

witnesses and the appropr ia te n u m b e r	and book	on t h e regis t ry	and
the da te when regis tered	A n d	all such ex t rac t s shall be wr i t ten	(or

par t ly p r in ted and par t ly wr i t t en) on paper or p a r c h m e n t of one

uniform size.

32 . U p o n t h e regis t ra t ion of any i n s t rumen t in t he office of t he

Reg i s t r a r at Br isbane the receipt requi red by law to be indorsed upon

such i n s t r u m e n t shall be signed by t h e said Regis t ra r or h i s Clerk in

his

his absence a n d every such receipt so indorsed and s igned shal l on proof of such s igna tu re be t a k e n and allowed as evidence of t h e regis­ t r a t i on of such i n s t r u m e n t and of t he t ime w h e n such reg is t ra t ion was m a d e .

33 . The jur i sd ic t ion conferred by th i s A c t upon the Res iden t

J u d g e a n d Supreme Cour t of and a t M o r e t o n Bay respectively shall no t ex tend to or affect any case in which proba te or adminis t ra t ion shal l have been g ran t ed or any order to collect been m a d e or any suit or ac t ion have been commenced or prosecut ion ins t i tu ted or o ther p roceed ing civil or cr iminal have been t a k e n by or in t h e Supreme Cour t a t Sydney or t he Circui t Cour t at Br i sbane before t h e commence­ m e n t of th i s A c t b u t all such m a t t e r s shal l be deal t w i th a n d disposed of in all respects as if th i s Ac t had n o t been passed.

34. I t shall be lawful for t h e Governor w i t h t h e advice of t he Execu t ive Council t o appoin t t h e Sheriff of More ton Bay to be a J u s t i c e of t h e Peace and also a Police Mag i s t r a t e for t h e said Dis t r ic t or any p a r t thereof and t h e Sheriff if so appointed m a y lawfully act in

those capacit ies any enac tmen t to t h e con t ra ry no twi ths tand ing .

35. This A c t shal l t a k e effect on and from t h e first day of Apr i l

now nex t .