Supreme Court Act 1855 (SA)

No. 31.

2d+ -- //X'

An Act to coztmlidnte the several Ordimnces relding to the Establish- /33EdL? - -- --- __ __ --

ment of the Su~rerne Court qf	the Province ?f South Australia,
L s e t e d f_l to, June 19 1856.1 ,&. f I> <+--:f2

d /R ,Is---.-+

HEREAS, by an Act or Ordinance, No. 5 of the seventh year prearnbI,. 9-=-

of the reign of His late Majesty King Williain the Fourth,

a Court of Judicature was established, called the Supreme Court of Recital, :	Wm.	b
the Province of South Australia: And whereas two other Acts or

~rdinenccs have since been passed, the one being No. 6 of the year 1844, No. 6.

of our Lord one thousand eight hundred and forty-four, and the

other being No. 12 of the year of our Lord one thousand eight 1840, NO,	12.
hundred and forty-nine, to amend the aforesaid Act or Ordinance:
And whereas an Act or Ordinance, bcing No. 5 in the yeitr one ,s4a, No.
thousand eight hundred and forty-eight, was passed to make the validity of the Generd Rules and Orders of the Supreme Court of South Austrculia then already made, or thereafter to be made, de- pendant upon the ratification of thcm by sonic subsequent Ordi- nance of the Governor and Leaislative Council of South Australia, and a certain other Act or 0rdLanee boiug No. 10 in the year on6 ,,,,No,
thousand eight hundred and forty-nine, was passed to extend the time for the confirmation of the General Rules and Orders of the supreme Court, and a certain other Act or Ordinance, being No. 2 ~ O, N O	2.
of the year one thousand eight hundred and fifty, was passed for the

confirnmtion of the General Rules a d Orders of the Supreme Court	- *
.
of Sonth Australia, and to v e n d the laws relating to such General / -

Rules and Orders; and it is deemed expedient t o m e and

amend the provisions of the aforesaid Acts or Ordinances-Be it 9 * f/

t H r e ~ n n c g d as is hereinafter set for&, that is to say-That the .. 4 JL- : . .

said Supreme CoDt, so established as af&esaid, s h d continue, and Supreme court to be held before one or

shall be holden by or before one or more Judge or Judges appointed, ,,, ~~d~~ or

L 3 or Judges

t

by the Governor, with the advice and

noil, one of whom shall have

ent Judges being Charles Cooper,

, Esquire; and that the said

Cooper shall be the first Chief Justice; and that all the power, jurisdiction, and authority, which by= A d is 'ven to the said

only one, or by the several Judges acting together if there shall

Court, shall and may be exercised by the sole B udge if there be

be more than one, or by any one of such Judges, according to

such rules of proceeding as may have been made, or may here-

a h r be made, by the Judges in pursuance of the powers $ven to

them by this Act.

totbeappointment 2. That such Court shall have such minister.ia1 and other officers

md number of

as shall be necessary for the administration of Justice therein, and

for the due execution of the judgment^, decrees, orders, and processes thereof; and that a11 ersons who shall and may be appointed to

Records of the said Court, or to any offices therein whereof the

the several offices of S aster, Registrar, Prothonotary, or Keeper of

dutiea shall correspond to those uow performed by the Master, Registrar, Prothonotary, or Keeper of Records crf any or either of Her M a p y ' a Courta of Record at Westminster, shall be so appointed by the Governor, d€h' such advice and co~sent as aforesaid; and that all eaons who shall or may be appointed to any other office within %e mid Supreme Court, slmll be so appointed by the Chie

or First Judge of the said Court for the time being if more t an af

one, or r> th e J u d g ~ o f % ~ o ~ t if there shall be only one Judge: and thatythe several officers so to be appointed by the Governor, with such advice and consent as aforesaid, shall hold their respective offices during the leasure of the Governor, with such advice and

by the Chief o r a t Jud e, or by the Judge, as the case &ay be,	consent as aforesni cl'; and that the several officers so to be appointed
shall besubject to b-p-	e removed by the said Court from their

respective o&ccs upon reasonable mVuse.

created without the 3. That no new office shall be created iu the said Supreme Court,

No new o@ce to be

of the Co. unless the Governor of the Province, shall first signify his approbation

0 t i n thereof, in writing, u n z his hand, to the Judge, if only one, or

to the Chief or First Judge of the said Court- for the time being, if

there s h a I T b e a n one Judge:

4. That the salaries of the Judgea, and of the ministerial and

5. That,

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5. That, in case of the absence, of any such Judge, or of sach disesse or infirmity as shall renderr kny"such Jud e incapable for the time being, of discharging the duties of %{S office, it shall be l a d 1 for the Governor for the time ,being of the said

Province, by and with-'the advice of the -Executive C o u ~ - o

said Province, to appoint some fit and proper peraon to act in the

sx&d of such Judge so being absent, or beeomin

until such Judge shall return to the execution

a=, in the meantimG;3ie persh so appointed, as last

shall be deemed and taken to be, and shall be an	h
of the said Supreme Court.

6. That the said Supreme Court shall continue to have and use seal of Court-

a seal bearing a device or impression of the Royal Ams, within an exergto or label surrounding the same, and with the following in- scriptronlL' Supreme Court, South Australia;" and that the said seal shall be kept in the custody of the chief officer of the Supreme Court for the time being.

7. That the said Court shall be a Court of Record, and shall have Jurisdiction of court,

cognizauce of all pleas, civil, criminal, and mixed, and jurisdiction "''l	"d c*imind.
in-all cases what_sqe-m as fully and a q l in this Province anhits

dependen&s as Her XIaJGiit-~Z'tsts o ? ~ i i - i i e n c l i, D~BBETK

Plkaapd-Exchequer, at ~estminster, or'3ither of them, l a w m

have or ha%- in E n i h n n C andKe said Court shall also be at all

t b e s a Court of Oyer and-Fernliner aud Gaol Delivery in and for To be a Coon of

the said Province and its dependencies; and the said Judge so ap- and Terminer, &c.

pointed or hereafter to be appointed as aforesaid, shall: hat-e -- ...---__- and

exercise such and the like jurisdiction and authority m h P r o v m c e T

and its dep o -t?le- saia its-

Bench coe,","'&:s,%zr, or any of t h 6 m ~ w e

&d exorcise, and as shall be neeessax$ fbr carrying into effect

the several jurisdictions, powers, and authorities committed to the

said Supreme Court.

8. That the said Supreme Court shall be a Court of Equity in court of Equity.

this Province and its dependencies, and shall have power and authority t9 administer justice and to exercise and perform all such acts, matters, and things necessary for the due execution of such e uitable jurisdiction as the Lord High Chancellor of Great Britain

matters, and things as lawfully can or may be done by the said	can or e7 awfully may within the Realm of England, and all such acts,
Lord High Chancellor within the Realm of England in the exercise of
the jurisdiction to him belonging.

9. That the said Supreme Court shall be a Court of Ecclesias- EcclesiastioalJuria- diction. Power to

t i d Jurisdiction, with full power to gant probates, under the seal , , probBte%

of the *aid Court, of the last wills and testaments of all or any of letters of adminis-

the inhabitants of t h i ~ Province and its dependencies, and of all

-

other

shall die nnd leave personal effects within this

ependencies, and to commit letters of d m i n i s t r a G

c mid Court, of the goods, chattels, credits, and

S whatsoever of the persons aforesaid who shtll die

o shall not have named an executor resident within

ovince or its dependencies, or where the executor, being

ot appear and sue forth such probate, annexing

mid letters of administration when such person s h d

1 without naming any executor, or any person for

then be alive and resident within the -F said Pro-

vince and its dependencies, and who being duly cited thercunto will appear and sue forth n probate thereof and to sequester the goods and chattels, credits, and other effects whatsoever of such persons so dying in ;cases allbwed by law, as the same is and may be now

used in the Diocese of London, and to demand, require, take, hear,

examine, and allow, and, if occasion require, to disallow and reject the accounts of them in such manner and form as is now used or may be used in the said Diocese of London, and to do all other things whatsoever needful or necessary in that behalf: Provided always, and the said Court is hereby authorized in such cases as aforesaid, where letters of administration shall be committed with the will annexed for want of an executor applying in due time to sue forth the probate, to reserve in such letters of administration full power and authority to revoke the same and to grant probate of the said will to sclch executor whenever he shall duly appear and sue forth the same.

Lettern of d~ninistra-

tion to be granted to 10. That such letters of administration shall be granted to any

next of kin, or to	one or more of the lawful next of kin of such persons so dying as
officer of Court, or
creditor in certain	aforesaid, and being then resident within the jurisdiction of the said
wsea	Court, and being of the age of twenty-one years, and in case no such person slid1 then be rosidingwithin the jurisdiction of the said Court, or being duly cited shall not appear and pray the samc, then that the same shall be granted to the Registrar, or Clerk, or some other ministerial officer of the said Court, or to such other person
or persons, whether creditor or creditors or not of the deceased
person, as the Court shall see fit: Provided always, that probate of
wills and letters of administration to be granted by tlie said Court shall be lin~ited to such mone oods, chattels, and effects as the
deceased person shall be entit ed to within 4hfatprovince and its !Pg
dependencies.

Administrator to give 11. That every person to whom such letters of ad mini strati or^

eecnfity. shall be conimitted shall, by himself with one or more sufficieuk and able sureties, before the granting thereof, give a d enter into a sufficient security by bond to the Curator of Intestate Estates for the time being, for the payment of a competent sum of money, respect being had in the sum therein to be contained and in the ability of the sureties to %he value of the estate, and that sucb bond shall be deposited in the sitid Court among the records thereof, and there

safely

hafely kept; and that a copy thereof shall d s o be recorded among the proceedings of the said Court; and that the condition of the said bond shall be for the meking, and exhibiting by the administrator

to the Supreme Court of a just and true account of the goods,

chattels, credits, and effects of the deceased, within six calendar .months after the granting of such letters of administration, and for the making and exhibiting by the administrator to the Supreme Court of a just and true account of his administration of such goods, chattels, credits, and effects within twelve calendar months afker the granting of such letters of administration; and for the due adminis- tratiou of such goods, chattels, credits, and effccts, and in case it shall be necessary to put the said bond in suit for $he sake of obtaining the effect thereof for the benefit of any person who shall appear to the Court to be interested therein, such person from time to time giving security to the satisfaction of a Judge of the Supreme Court for paying all such moneys and costs as shall arise from the said suit or any part thereof? such person or persons shall by order of the said Court bc allowed to sue the same in the name of the Curator of Intestate Estates for the time being, and the said Court is hereby empowered to order that tlw said bold sl~all be put in suit in the nmne of the said Curator accordingly.

12. That every person to whom letters of adniinistration shall be Regulating accounts

grmted, shall make and exhibit such accounts, as aforesaid, to the Supreme Court, or to a Judge, or the Master thereof, within the respective times mentiorled in bond for that purpose, and shall verify rruch accounts by his declaration, in writing, made iu tlle presence of the Court, or a Judge, or Master thereof, that the account exhibited by him is, to the best of his knowledge and belief,

a true and just account of the chattels, credits, and effects of the

deceased, or of his the administrator's administration thereof, as the case may be, which declaration the said Court, or a Judge, or a Master thereof is hereby empowered to administer. And in case any such administrator shall ueglect to malze a d exhibit to the

space of one calendar month after the time appointed by his bond

Supreme Court either of such accounts, verified as aforesaid, for the

for that purpose, it shall be the duty of the Curator of Intestate Estates to cause such administrator to be summoned by s J~td e of

the Court to show cause before him why he should not be or d ered	to exhibit sucFhcount to the Court forthwith; and in case such
administrator, being duly served with such summons, shall not at-	+

tend before the Judge at the time and place mentioned thereill, or shall not show any rtasonable cause to the contrary, it shall be lawful for the Judge to order the administrator to exhibit such account, verified as aforesaid, either forthwith or within such further time as the Judge shall think fit to allow; and if such administrator shall not within the prescribed time or within such further time as shall be allowed him by a Judge, make and exhibit such account iu manner aforesaid, it shall be lawful for any Judge of the Court to impose such fine upon the ~~dmioistrator making such default, not exceeding One Hundred Pounds, ss the Judge s11all see fit, and so

M 3 from

*

from time to time as often es default shall be made; and every such fine shall be levied by writ, directed to the Sheriff, in the same man* ner and applied to the same purposes as fines imposed by the PIupreme Court for contempt are now levied atid applied: Piovided, that it shall not be the duty of the Court, or Judge, or of the Cura- tor of Intestate Eatetes, to investigate the truth or correctness of

any such accounts, &or further to interfere with the administration

of the estate than the compelling such account to be rendered in any erase where there shall be any lawfirl next of kin of the deceased of full age and capacity resident within the jurisdition of the Su- preme Court: Provided also, that nothing herein contained shall

prevent the Curator h m taking proceedings on such bond as acfore-

said, at the request of any person interested, and on security being

given in the manner provided by the said in part recited Act.

btOthe e~ecutom and &OcouQtB ad- Of 13. That all persons to whom probate of wills and letters of

miniazatore.	administration shall be granted by the said Court shall from time
to time, until the effects of the deceased person shall be fully
administered, make and exhibit and pass their accounts relating thereto before the said Court, within such times after granting probate of administration as are before mentioned for making and exhibiting and passing accounts after the proof of administration; and in case the effects of the deceased shall not be fully administered within the respective times aforesaid, then, or at any earlier time, if
the mid Court shall see fit so to direct, the person or persons to
whom such probate or administration ~hrtll be grmtcd shall pay deposit, aud dispose of the balance of money belonging to the estate
of the decentsed then in his, her, or their hands, and also all other
bonds, bills, securities, chattels, and effects belonging to the estate of the deceased, io such manner and unto such persons as the said
Court shall direct for safe custody; and the said Court sl~all from time to time make such order as shall be just for the due administra- tion of such assets, and for the pavment and remittance thereof, or any part thereof, s s occasion ahall ;equire, to or for the use of any
thereof, as creditors, legatees, or next of kin, or by any other right and its dependencies, who rnRy be entitled thereto, or any part person or persons, whether resident or not resident in this Province
or title whatsoever.
14. That it shall be lawful for the said several Judges of the said Supreme Court to allow to any executor or administrator of the effects of any decea~ed person (except as herein mentioned) such commission or per centage out of their assets as shall be just and reasonable for their pains and trouble therein: Provided always, that no allowance whatever shall be made for the pains and trouble of
any executor or administrator who shall neglect to pass his accounts
at such time, or to dispose of any money, goods, chattels, or
securities with which he $hall bc chargeable, in such manner as in pursuance of any general o r, s p i a l rule or order of the said Court &all be requisite; and, moreover, every such executor or ad-
ministrator so neglecting to pass his accounts, or to dispose of any

1 such

such money, goods, chattels, or securities with which he shall be chargeable, shall be charged with interest at the rate then current within this Province and ifs dependencies for such sum and sums of moneyasrom time to time shall have been iu his hands, whether he shall or shall not make interest thereof.

Y

15. That the said Supreme Court, or any Judge thereof, shall ~;&,o[!$o:'

have power to appoint guardians and keepers of infants and their lunatics.

estates, accordk&cthe order and course observed in that part of

the United Kingdom cii lX3 I&&and, and also guardians and keepers L

of the persons and estates of natural fools, and of such as are or /'a	shall be deprived of their understanding or reason by the act of
Go& so as to be unable to govern themselves and their estates, which the said Court is hereby authorized and empowered to inquire, hear, and determine by inspection of the person, or such other ways and means by which the truth may be best discovered and known. *,

*,

16. That it sha h1 for the Judqes of the said Supreme h a k e Oeoerd Rules,

ewer of Court to

Court to make a uch General ~ d e s and Orders touching k,.,

and concerning t practice of holding the said Courts, theq

forms and mGnner of pr~~e&lr!gs, and the *ce m d plendil~g

upoh-a,II iidictnlents, informations, actions, sults, a62 other matters Je;/z- +.

to be brought therein, the appointment of Cornnlissioners to examine +P

--- - - -----

witnesses, the taking the cxarnination of witnesses, de bene esse, aud

allowing the same as evidence, the granting of prabates of wills and

letters of administration, tlie proceedings of the Sheriff'? and other	-
ministerial oEccrs, the process of the foreign attachment, and all other the process of the said Court, and the mode of executing the same, the admissions of attorneys, solicitors, and barristers, the fees,, p~undage, or perquisites to be taken by any officer, attorney, or I

solicitor in the said Court, and all other matters and things f ~ r the 1

- ;t-f,'

- +-

conduct of business in the said Court, m the circumstances of 25 &=*-L/

Province may require: Provided that d l suclr General Rules and '" . - R ? i C + L -.>

7&

Orders as slmll hereafter-by the said Supreme Court shall Y',> / L, - * y V f L ~ - r, . f C

be reduced into writing, and shall have aExed thereto the seal of *:ig<4G$-,fldj

the said Court, and shall forthwith be transmitted under the hand ' 3

of the Judge or Judges same to the Governor, to be by

him laid before the Le islati-ncil as soon as practicable after

the next assemBne t ereof: and a l l such General Rules and v' -57

Orders shall be bp Gdcr of tho said Judge or Jud' es published in the South ~ u s t ~ a Z i n ~ v ~ f i m e n t Gazette tor b?ic informat?on; and, unless the same shall be disallowed in manner after mentioned, shall commence and take effect from and after a day to be therein

named, not being iess than forty from and after - such publication.

17. Provided nlwavs and be it Enacted. That it shall be lawful .Proviso for low- ance by Qovernor and

for the Governor, wiih the advice and co&ent of Legislative ~ounci l.

Council by any Ordinance to be passed at any ti

oZ%fE&iny such General Rule or Order shall have come into opera-

tion, to di&llow the same in whole or in part, and in case the i t m e ,I

shall

at which the same shall cease to be in force; and no such General shall be in force at the time of such disallowance to specify the tin~c effect whatsoever, or if it shall be in force at the time of such dis- allowance,"it shall cease to have any force or efect at the time so specified as aforesaid, save in so far as regards anything thereto- fore lawfully done in pursuance thereof.

Governor and Execu- 18, That the Governor for the time being, and the Executive

from the

in all cases w L i

the sum or

orders, or

7'

-

C;;urtlofAppeals s1laEi""f r m s e, aIt ; , or inquire intd the said

1 judgments, - except onlyfur error -7 of la&pparent on the record.

power of-	19. That anv aerson mav ameal to Her Maiestv. Her heirs and	.J	I	L I.	rt	. J I
Her Ma'ost In er

d, r	such time, and under and subject to such rules, regulations, and
successors, in Her or their Privy Council, in such manner, wiihin
limitations as are hereinafter mentioned, that is to say-in case any such judgment, decree, order, or sentence, shall be given or pronounced for, or in respe,ct of any sum or matter a t issue above the amount or value of ~ & e 11undrkd Pouuds sterling; or in case
such?; ;; iE ;1mee, o r ~ G n % n C e ~ a a l l involve, directly or
indirictlf, any 'claim, demand, or question, tp or respectiug property,
or any civil right amounting to or of the F value of v Five IIundred L -
Pounds sterling; p in case the said Court ofXppea1s sh%uld, by
vary any judgment, decree, order, cw sentence of the said Supreme any such j u d g m 6, decree, order, or 'sentence reverse, alter, or Court, the person or persons feeling aggrieved by any such judgment, decree, order, or sentence of the said Court of Appeal may, within fourteen days next after the same s h l l have been pronounced, made,
or given, apply to the said Court of Appeals, by petition, for leave
to appeal therefrom to Her Majesty, Her heirs and successors, in Her or their Privy Council; and in case such leave to appeal shdl
be prayed by the arty who is or are directed to pay any sum
of money, or to pe d orm any duty, the said Court of Appeals shall, and is hereby empowered, either to direct that the judgment, decree,
order, or sentence ap ealed from shall be carried into execution, or
that the execution t ereof shall be suspended pending the said R appeal, ss to the said Court may appear to be most consistent with
real and substantial justice; and in case the said Court of Appeals shall direct such judgment, decree, order, or sentence, to be carried e into

%

into execution, the person or pcrsolrs in whose favor the same shall be given shall, before the execution thcreof, enter into good and sufficient security, to be approved by the said Court of Appeals, for the due performance of such judgnicnt or order as Her Majesty, Her heirs and successors, shall think fit to make thereupon; or, in case the said Court of Appeals sllilll direct the execution of any such judgment, decree, order, or sentence, to be suspended pondirrg the appeil, the person against whom the satne shall have been given, shall, in like manner, and before aliy order for the mspension of any such execution is made, enter into good and sufficient security, to the satisfaction of the said Court of Appeals, for the due perf'ormance of such judgment or order as Her Majesty, ller heirs or successors, shall think fit to make thereupon; and in all cases security shall also be given by the party or parties appellant, to the satisfiiction of the said Court of Appeals, for the prosecution of the appeals, and for the payment of all such costs as may be awarded by Her Ma- jesty, IIer heirs and successors, to the party or parties respondent; and if such last-mentioned security shall be entered into within three months from the date of such petition for leave to appeal, then, ancl not otherwise, the said Court of Appeals shall allow the appeal, and the party or pzrties appellant shall be at liberty to prefer and pro- sccutc his appeal to Her Majesty, Her heirs and successors, in Her or their Privy Council, in such innnner and under such rules as are observcd in appeals 111ade to Her Majesty from Her Majesty's other Plantations or Colonies; and in particular, that in all case$ of appeal allowed by the said Court of Appeals, the said Court of Ap- peals shall certify and transmit to IIer Najjcsty, Her heirs or suc- cessors, in Hcr or their Privy Council, a true and exact copy of all evidence, proceedings, iudqxlicnts, decrees, and ortlers, llwd or mndc in such causes appealed f r k, so fhr us the same have relatiou to tlle nlatter of appcd, such copies to be certified under thc seal of the said Court.

9

Reperil ~f form-x cts, L

20. And be it Enacted, That from and after the of ;,,, t,li,,g

het - - into opeption -- the h e r e n b f r - c Acts or lawfi~lly dun? there-

b - : Provided t h G t X t w 9 m done by the said%o- nndvr.

prefile Court or the Judges tl~ereof, or either

A

the ministers or officers of the said S 1 :,g&!-

Act, s ld l be n r d continue to be of the * @ Z-if$!5TG '

U-%- Af.5

Act had not been passed; and that all actions and suits, and otlm ~ 2 - L $&+*

proceedings which have heerr Inwf~dly con~mcnced bef'urc tllc pss i rg .L A,&-

hereof may be hereafter contillued, :rnd carried on, and concluded, 4 L- H--

A-&' -; * $7-- f lL.

1?iTIGhz1anner as if' the same lrnd bccn coiwne~mxl after the passing --

-- p"/ ..' ..

hereof.

21.	And be it Enacted, That this S c t s l d l kegin &t?li_e	cfFe&on	- -	mme of corfimence-
ment of Aot.

the f i s t day of July next.

- + --p-.--- -~ .-v -. -~ - ..- - .. -~ --. --.--,-.,.,-L. ..

Adcit&ki l'rintoil by anthority: hy W. C. Cox, Go~crnmc.nt l'rintw. Yirt:vi::-tiqr~nrc.