Small Debts Ordinance 1863 Amendment Act 1894 (WA)

58 VICTORIA No. 13

The Small Debts Ordinance, 1863, Amendment et 1894

WESTERN AUSTRALIA

ANNO QUINQUAGESIAIO OCTAVO

VICTORLE REGINA;

No. 13

An Act to amend and extend the Law relating to the

Recovery of Small Debts and Demands.

[Assented to 1st November, 1894.

HEREAS it is expedient to amend and extend the law, and to rreamwe

Wthe Recovery of Small Debts and Demands : Be it therefore enactedalter and regulate the manner of proceeding in the Courts for

by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Legislative Assembly of Western Australia, in this present Parliament assembled, and by the authority of the same, as follows :-

1. This Act may be cited as The Small Debts Ordinance, 1863, Short title Amendment Act, 1894,' and shall be read and construed as one Act 27 Vic., 21 with ' The Small Debts Ordinance, 1863,' as if the several provisions

in the said Ordinance contained, not inconsistent with the provisions

of this Act, were repealed and re-enacted in this Act.

2. The several enactments specified in the Schedule to this Act Enact/tie iu

are hereby repealed, to the extent mentioned in the third column of the said Schedule ; but this repeal shall not affect the course of any proceeding taken before such repeal.

3. For every Local Court there shall be made a seal of the Court, seal of Court

and all summonses and other process issuing out of the said Court Imo. Act 0 am/

shall be sealed or stamped with the seal of the Court, and any person si.(35jie“. its,

who shall forge the seal or any process of the Court, or who shall

serve or enforce any such forged process knowing the same to be

forged, or deliver or cause to be delivered to any person any paper

falsely purporting to be a copy of any summons or other process of the

said Court knowing the same to be false, or who shall act or profess

to act under any false colour or pretence of the process of the said

Court, shall be guilty of a felony.

4. A plaint may be entered in the Local Court within the district where SIIMMOI/F

of which the defendant or one of the defendants shall dwell or carry ma)' i""e part arose.

on his business at the time of the bringing of the action, or it may be 13niAe.r.e3?71

entered by leave of the Magistrate in the Local Court within the s.1

district of which the defendant or one of the defendants dwelt or

carried on business, at any time within six calendar months next

before the time of action brought, or with the like leave in the Local

5. With respect to all Common Law actions which may be brought Jurisdiction by

in the Supreme Court, if both parties shall agree by a memorandum consent

signed by them or their respective solicitors that any Local Court Ilatit•iord

VOL. III. a. 23

58 VICTORLE. No. 13

The Small Debts Ordinance, 1863, Amendment Act, 1894

named in such memorandum shall have power to try such action,

such Local Court shall have jurisdiction to try the same.

Magistrates may 6. A Magistrate of a Local Court shall have jurisdiction to make

diction like °"reisei"ris. any order or exercise on an ex parte application any authority or

SilpIC/110 CMSJudge of jurisdiction in any action or proceeding pending in any Court of ill Chambers which he is Magistrate which, if the same related to an action or

proceeding pending in the Supreme Court might be given, made, or

exercised by a Judge of the Supreme Court in Chambers.

Where no inris-	7. Whenever an action is brought in a Local Court, which the
diction costs

may be awarded	Court has no jurisdiction to try, the Magistrate shall order the cause
Imp. Act 30 and	to be struck out, and shall, unless the parties consent to the Court

e. 142, having jurisdiction to try the same, have power to award costs in the same manner, to the same extent, and recoverable in the same manner as if the Court had jurisdiction in the matter of such plaint, and the plaintiff had not appeared, or had appeared and failed to prove his demand.

s. 14

Either party 8. If either party in any cause, action, or proceeding in a Local may appeal Court shall be dissatisfied with the determination or direction of the

said Court in point of law or upon the admission or rejection of any evidence, such party may appeal to the Supreme Court ; and such appeal shall be regulated by the Rules of the Supreme Court for the time being in force regulating proceedings on appeals from Local Courts.

Magistrate to	At the trial or hearing of any action or matter in which there either party before judgment is delivered, shall make a note of any question of law raised at such trial or hearing and of the facts in evidence in relation thereto, and sill state in writing his decision on such questions and facts, and his decision of the action or matter.
make note of any
question of law	is a right of appeal, the Magistrate, at the request of Any person who has given notice of appeal shall, upon payment of a sum not exceeding threepence per folio of seventy- two words, be entitled to a copy of the notes of evidence taken by the Magistrate, and of the note of any such questions and facts, and of his decision thereon.
raised at any

trial

Liberty to pro. 9. Where personal service of any summons or other process of a

"ea where	Local Court cannot be effected, and the Magistrate is satisfied by
personal service
has not been

effected such service, and either that the summons has come to the knowledge	affidavit or otherwise that reasonable efforts have been made to effect
imp. Act 38 and

39 vie., c.5o, s. of the defendant or that he wilfully evades service of the same, it shall

be lawful for the Magistrate to order that the plaintiff be at liberty to proceed as if personal service had been effected, subject to such con- ditions as to the Magistrate may seem fit.

Service of

10. Any summons or other process of a Local Court, not being a writ of execution, may be served by any member of the Police Force, the plaintiff, his solicitor or cleric, or by any other person authorised by the Magistrate, and such service may be proved by affidavit showing the fact and mode of the service, and shall be as valid as if the same had been made by a bailiff or officer of the Court out of which such summons or other process shall have issued.

process

58 VICTORIA No. 13

The Small Debts Ordinance, 1863, Amendment Act, 1894

11. Section one hundred and seven of the said Ordinance is Amendment ntoff o

hereby amended by adding at the end of the said section the words	27 17	/c., 21
or before a Commissioner for taking affidavits in the Supreme
Court.'

12. Where any summons or other process is served by a bailiff of How service by a

any Local Court, the service may be proved by endorsement on a bra"ireCmaY be p

copy of the summons or process under the hand of such bailiff, Imp. Act 38 and showing the fact and mode of the service of such summons or 39 Vie, 0. 50, s. process ; and any such bailiff wilfully and corruptly endorsing any

false statement on the copy of a summons or other process shall be guilty of a misdemeanour, and on conviction thereof shall be removed from his office or employment, and shall incur the same penalties as are or may be incurred by persons convicted of wilful and corrupt perjury.

on the day named in the summons or at any continuation or no appearance13. If in any action for a debt or liquidated money demand Proceautig3 if

adjournment of the Court or cause in which the summons was IMA,,,tri

issued, the plaintiff shall appear either in person or by some person 5.80

duly authorised on his behalf, and the defendant shall not appear RV

° cetVni1

not sufficiently excuse his absence, or shall neglect to answer when

called in Court, the Court upon due proof of service of the summons

may proceed to enter up judgment for the plaintiff, and such

judgment shall be as valid as if both parties had attended the

in person or by some person duly authorised on his behalf, or shall s. shown in any such case, either at the same or any subsequent sitting set aside any judgment so given in the absence of the defendant and the execution thereupon, and may grant a new trial of the cause upon such terms (if any) as to the payment of costs, giving security for the debt or costs or such other terms as it may think fit.

14. (1) Wherever by the provisions of the said Ordinance any costs Taxation of

and charges are required to be taxed by the Magistrate, the same may costs

be taxed by the, Clerk of the Court.

(2) And with respect to proceedings in actions where the debt or damage claimed exceeds Twenty pounds, the following provisions shall apply,

(a) All costs and charges between party and party shall Costs as between

be taxed by the Clerk of the Court in which such party and party

costs and charges were incurred, but his taxation ITolii0A1.1 and

may be reviewed by the Magistrate of the Court on s. 31

the application of either party, and no costs or

charges shall be allowed on such taxation which

are not sanctioned by the scale then in force under

the provisions of section thirty-two of the said

Ordinance.

(b) All costs between attorney and client shall, on the Costs as beta, application of either the attorney or client but not ' tr and otherwise, be taxed by the Clerk of the Court in Imp. Act 19 and

which such costs and charges were incurred, but 20 Vic., 0. 108,

his taxation may be reviewed by the Magistrate of 8'35

58 VICTORI2E. No. 13

The Small Debts Ordinance, 1863, Amendment Act, 1894

the Court on the application of either party ; but no costs or charges shall be allowed on such taxation which are not sanctioned by the said scale then in force, unless the Clerk shall be satisfied that the client has agreed in writing to pay them, in which case they may be allowed ; and no attorney shall have a right to recover from his client any costs or charges in respect of such proceedings unless they shall have been allowed on such taxation or on the taxation of the Master of the Supreme Court.

(c) No costs shall be taxed by either party unless notice has first been given to the other side.

Judge of	15. (1) A Judge of the Supreme Court may, upon the application
Supreme Court

may order	of any party in any action or proceeding in a Local Court for good
attendance of	cause shown upon affidavit, order the attendance as a witness in the
witness	Local Court of any person in legal custody, subject to the payment into the Supreme Court by the party applying of a sum sufficient in the opinion of the Judge to defray the expenses of the attendance and return of such prisoner and of the gaoler in charge, and every such order shall be directed to and served upon the Sheriff and the gaoler in whose custody such prisoner may be.
(2) The sum so deposited, or so much thereof as shall suffice, shall be paid out of Court to the Sheriff on his application and lodging with the Registrar of the Supreme Court a memorandum of the expenses occasioned by the compliance with such order, and any surplus of such sum shall be paid out to the party depositing the same.

Action of tort 16. Any person against whom an action of tort within the jurisdic-

brought in	Supreme Courttion of a Local. Court is brought in the Supreme Court may make an
may be removed affidavit that the plaintiff has no visible means of paying the costs of to Local Court in the defendant should a verdict be not found for the plaintiff ; andcertain cases

thereupon a Judge of the Supreme Court may make an order that, unless the plaintiff shall, within a time to be therein mentioned, give full security for the defendant's costs to the satisfaction of the Registrar of the Supreme Court, or satisfy a Judge of the Supreme Court that he has a cause of action fit to be prosecuted in the Supreme Court, all proceedings in the action shall be stayed, and in the event of the plaintiff being unable or unwilling to give such security, or failing to satisfy a Judge as aforesaid, that the action be remitted for trial before a Local Court to be named in the order, and thereupon the plaintiff shall lodge the original writ and pleadings, if any, which have been delivered and the order with the Clerk of such Local Court, who shall appoint a day for the trial of the action, notice whereof shall be sent by post or otherwise by the clerk to both parties or their solicitors, and the action and all proceedings therein shall be tried and taken in such Court as if the action had originally been commenced therein ; and the costs of the parties in respect of the proceedings subsequent to the order of the Judge of the Supreme Court shall be allowed according to the scale of costs for the time being in use in the Local Courts, and the cost of the order and all proceedings previously thereto shall be

58 VICTORLE. No. 13

The Small Debts Ordinance, 1863, Amendment Act, 1894

ellowed according to the scale of costs for the time being in use in the Supreme Court. In the event of any action being so remitted before the pleadings have been closed, the Magistrate of the Local Court may, on application, order particulars, or further particulars, of the claim or defence to be delivered.

17. Any statement under section thirty-eight of the said Ordinance Confession may be signe d berm

may be signed before the Clerk of any Local Court. Clerk of any

18. An interpleader summons, issued under section sixty-five of the Local Court

said Ordinance, shall be returnable within five days of the service Isitlitnezlenast be

thereof, and if no Court be then sitting the same shall be adjudicated revittrblet n five ors

upon by the Magistrate sitting in Chambers. of service

19. A Magistrate proposing to sue any person dwelling or carrying Magistrate of

on business in any district of the Local Court of which he is the Judge Loo c aor l tustrY

may bring his action in the Court of any adjoining district of which he tattilijeotining

is not the Judge ; and any person proposing to sue a Judge may bring

his action in any Court of a district adjoining the district of the Local

Court of which the defendant is Judge.

Court

20. Section ninety-nine of the said Ordinance is hereby amended by striking out, in the second line, the words neither the value of the

Amendment of

Section 99 of

Ordinance

premises nor the rent payable in respect thereof shall have exceeded,' and inserting in lieu thereof the words 'the rent payable in respect thereof shall not exceed.'

21. Two or more persons claiming or being liable as partners may sue or be sued in the name of their respective firms, if any, and the

Partners may

sue or be sued in

firm's name

opposite party may in such case apply for the names of the persons who are partners in any such firm, and the Court may order an affi- davit to be filed stating the names and addresses of such partners. Provided that no execution shall be issued against any person not served with the plaint or summons.

Any person carrying on business in the name of a firm appa- rently consisting of more than one person may be sued in the name of such firm.

22. Every defendant may set off, by way of defence, any claim or demand whatsoever that he may have in the capacity in which he is

Defendant may

counter-claim

sued against the plaintiff in the capacity in which he sues, and which the Court would have jurisdiction to hear and determine if the same were a claim or demand by a plaintiff in such Court.

The defendant shall file a statement of such counter-claim, giving such particulars thereof as would be necessary in case of a claim by a plaintiff.

(1) Such statement shall be headed with the word Counter- claim,' but shall in all other respects conform to the provisions of the said Ordinance as to particulars of claims.

(2) A copy of such counter-claim shall be filed in the office of the Court, and served upon the plaintiff at least five clear days before the time appointed for the hearing, and all further proceedings thereon shall be taken in the same manner as if the defendant had commenced an indepen- dent action against the plaintiff, and the said counter-

58 VICTORLE. No. 13

The Small Debts Ordinance, 1863, Amendment Act, 1894

claim shall be tried at the same place as the claim in the original action, together with or immediately after the trial of the original action. The Court may adjourn the hearing of a counter-claim if it be made to appear that the plaintiff will be prejudiced by the hearing taking place as hereinbefore provided. A counter-claim cannot be set up against any one of two or more joint plaintiffs.

Removal of

judgment into	23. Whenever in any Local Court a judgment has been recovered or an order made for the payment of an amount of Ten pounds or upwards, the Clerk of such Court, upon the application of the person entitled to enforce such judgment or order, or his solicitor, shall deliver a certificate in the form contained in the Second Schedule to this Act, and shall make a record thereof in the books of the Court.
Supreme Court
No such certificate shall be granted before the expiration of the time allowed for giving notice of appeal, or before the time at which execution could be issued out of the Local Court, and if any execu- tion against the goods and chattels shall have been issued, no such certificate shall be granted until after the return of the warrant of execution.
The person obtaining the certificate may file the same, or cause it to be filed, in the Supreme Court, and thereupon, without any further process, sign final judgment (on which judgment no appeal shall lie in that Court) in the form contained in the Third Schedule to this Act, for the sum stated in such certificate to be unpaid, together with interest thereon at Six pounds per cent. per annum, from the date of the said certificate, and the sum of One pound eleven shil- lings and sixpence for costs, and together also with all fees paid in obtaining such certificate and signing such final judgment, and upon such final judgment execution may be forthwith issued, and all the proceedings taken as on any other judgment of the Supreme Court ; Provided that after any such certificate shall have been granted no further proceedings shall be had or taken in the Local Court other than by way of judgment summons.

Magistrate may 24. The Magistrate of any Local Court may, upon the ex parte

or der an attach-

ment of debts	application of any person who has obtained a judgment or order for
Imp. Act 17 and	payment of money in any Local Court, and upon affidavit by himself
18 Vic., e. 125,

el or his solicitor, stating the fact of such judgment or order, and that it is still unsatisfied, and to what amount, and that any other person is indebted to the debtor, and is within the jurisdiction, order that all debts owing or accruing from such third person (hereinafter called the garnishee) to the debtor be attached to answer the judgment or order,

And summon and may, by the same or any subsequent order, summon the garnishee

garnishee

to attend before him, on a day to be named, to show cause why he

Imp. ct, 33 and

a l Vic., c.30. 1 should not pay the creditor the debt due from him to the debtor, or so s

much thereof as may be sufficient to satisfy the judgment or order : Provided, however, that no order for the attachment of the wages of any servant, labourer, or workman shall be made by the Magistrate of any Local Court.

Order for attach- 25. Service of an order that debts due or accruing to the debtor

ment to bind

dents liable under a judgment or order shall be attached, or notice thereof

58 VICTORI2E. No. 13

The Small Debts Ordinance, 1863, Amendment Act, 1894

to the garnishee, in such manner as the Magistrate shall direct, shall Imp. Act 17 and

bind such debt in his hands.	1
F. G2 ie., C. 125, 8 V

26. If the garnishee does not forthwith pay into Court the amount Xroceedings to

due from him to the debtor, or an amount equal to the judgment or levy ""lit duo order, and does not dispute the debt due or claimed to be due from Thipl,giacrt111t,eteml him to the debtor, or if he does not appear upon the said summons, 1xvio.,c.125,

then the Magistrate may order execution to issue, and it may be sued 63

for accordingly, without any previous writ or process, to levy the

amount due from such garnishee towards satisfaction of the judgment

or order.

27. If the garnishee disputes his liability, the Magistrate shall, on on return of

the, return of the said summons, try and determine all questions Tf„11°,'.;,ste nifty

necessary for determining the liability of such garnishee to pay such determine debt in the same manner in which an action is tried and determined. liability

28. Whenever in proceedings to obtain an attachment of debts, it Pro irtceedings

is suggested by the garnishee -that the debt sought to be attached where thirdTh y has a lien belongs to some third person, who has a lien or charge upon it, the Imp. Act 21 and

Magistrate may order such third person to attend before him, and state 24 Vie, C. 126 Vi ,

s.29

the nature and particulars of his claim upon such debt.

29.   After hearing the allegations of such third person under such illtagrate may

order, and of any other person whom by the same or any subsequent

order the Magistrate may think fit to call before him, or in case of

orders

such third person not appearing before him upon such summons, the Inn; Magistrate may order execution to issue to levy the amount due from & 30 such garnishee, and he may bar the claim of such third person or

make such other order as he may think fit, upon such terms in all cases with respect to the lien or charge, if any, of such third person, and as to costs, as he shall think just and reasonable.

30. Payment made by or execution levied upon the garnishee, under Garnishee

any such proceedings as aforesaid, shall be a valid discharge to him as discharger

paid or levied, although such proceedings may be set aside or the "5	against the debtor liable under a judgment or order to the amount 1141kA,,t721a,"d
judgment or order reversed.

i1,etisttro rot iezray

31. The Magistrate may in his discretion refuse to interfere where from the smallness of the amount to be recovered or of the debt feu in certain

sought to be attached or otherwise the remedy sought would be "s"	Imp. Act 21 and
worthless or vexatious.	21 Vie., c. 12G,

32. The Clerk of the Court shall keep a debt attachment book, and j in such book entries shall be made of the attachment and proceedings book to ha kept s. t2t8acine

nt

thereon, with names, dates, and statements of the amounts recovered t &eu f:ri erk of

t

or otherwise, and copies of any entries made therein may be taken by Imp. Act 17 and

18 Vic. , 0. /25,

any person upon application to the clerk. 00

33. The costs of any application for an attachment of debt under Costs or.

this Act, and of any proceedings arising from or incidental thereto, application , Imp. Act 17

shall be, in the discretion of the Ma gistrate. istrate. 18 Vie. c. 125,

34. A vacation shall be observed in every Local Court from the "7

twentieth day of , December to 'the eighteenth day of January both Vacation

inclusive, during which period the Court shall not sit : Provided

always, that every Court shall always be open for the entry of plaints,

58 VICTORL4. No. 13

The Small Debts Ordinance, 1863, Amendment Act, 1894

the issue of process, and the receipt and payment out of money due under any order of the Court, pursuant to the rules and orders in force for the time being.

Sittings of Court 35. In the event of any sitting of a Local Court falling upon a

falling on any Bank holiday, the Court shall not sit upon such day, but upon the day

Bank holiday

next following.

ALEX. C. ONSLOWC _

GOVERNOR'S DEPUTY.

FIRST SCHEDULE

Session and Number Title Extent of Repeal

Section 2

27 Vic., No. 21 .	The Small Debts Ordinance, 1863 '	Sections 10, 33, 34, 41, 42, 44, 55, 56, 64, 76, and 77.
In Section 87 the words, ' exceeding twenty pounds.'

SECOND SCHEDULE

This is to certify to the Supreme Court that at the Local Court of

holden at on the

day of 18 (name and address of person entitled to

execution) obtained a (judgment or order against)

for the sum of £	; and the sum of	is still due upon
the said judgment or order.

Given under my hand and the seal of the said Local Court this

(lay of 189 .

Clerk of Court.

THIRD SCHEDULE

In the Supreme Court.

Between (person entitled to execution)

Plaintiff,

and

Defendant.

The day of

It appearing by the certificate of the Clerk of the Local Court of

holden at and dated the

day of , 189 , that the above-named defendant

is indebted to the above-named plaintiff in the sum of £	on a judg-
ment recovered or order made in the said Local Court, dated the

day of . It is this day adjudged that the plaintiff do

recover against the said defendant the said sum of £	and also £
for interest, costs, fees, and charges.