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3-044 (Text)

Item metadata
Speaker:
author,male,Legislative Act,un addressee
ns1:discourse_type
Legal Document
Word Count :
4009
Plaint Text :
ns1:register
Government English
ns1:texttype
Legal English
ns1:localityName
http://dbpedia.org/resource/Victoria
Created:
1852
Identifier
3-044
Source
Bennett, 1979
pages
138-144
Document metadata
Extent:
22752
Identifier
3-044-plain.txt
Title
3-044#Text
Type
Text

3-044-plain.txt — 22 KB

File contents



Whereas by an Act of the Imperial Parliament of Great Britain and Ireland, passed in the thirteenth and fourteenth year of the reign of Her present Majesty, intituled, "An Act for the better Government of Her Majesty's Australian Colonies", it was enacted, that it should be lawful for Her Majesty, by letters patent under the Great Seal of the United Kingdom of Great Britain and Ireland, to erect and appoint a Court of Judicature in the Colony of Victoria, which should be styled "The Supreme Court of the Colony of Victoria;" and that such court should be holden by one or more judge or judges, and should have such ministerial and other officers as should be necessary for the administration of justice in the said court, and for the execution of judgments, decrees, orders, and process thereof: And that it should be lawful for the Governors and Councils of the Colonies of New South Wales, Van Diemen's Land, and Victoria respectively, from time to time, by any Act or Acts to make such provision as to them might seem meet for the better administration of justice, and for defining the constitution of the courts of law and equity, and of juries, within the said colonies respectively, or within any present or future dependencies thereof respectively, anything in an Act of the ninth year of King George the Fourth, intituled, "An Act to provide for the more effectual administration of justice in New South Wales and its dependencies," or in the said recited Act, or in any Charter of Justice, or Order in Council made or issued in pursuance thereof respectively, or in any law, statute, or usage to the contrary thereof notwithstanding:  And whereas no such letters patent have been received in the said Colony of Victoria; and the exigencies of the said colony have rendered it necessary to make provision for the better administration of justice therein; and it is expedient to repeal the several Acts and portions of Acts of the Governor and Legislative Council of the Colony of New South Wales hereinafter mentioned: Be it therefore enacted by His Excellency the Lieutenant Governor of the Colony of Victoria, by and with the advice and consent of the Legislative Council thereof, That from and after the commencement of this Act, an Act of the Governor and Legislative Council of the said Colony of New South Wales, passed in the fourth year of the reign of Her present Majesty Queen Victoria, intituled, "An Act to provide for the more effectual administration of justice in New South Wales and its dependencies;" and an Act passed in the fifth year of the reign of Her present Majesty Queen Victoria, intituled, "An Act to make further provision for the trial of cases in the Circuit Courts of New South Wales, and to amend in certain respects the Act providing for trial by jury in such courts;" and the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, and thirty-first sections of an Act passed in the said fifth year of the reign of Her present Majesty Queen Victoria, intituled, "An Act for the further amendment of the law and for the better advancement of justice;" and also an Act passed in the seventh year of the reign of Her present Majesty Queen Victoria, intituled, "An Act for regulating the appointment and duties of Sheriff in New South Wales," shall be and the same are hereby repealed, so far as they relate to the said Colony of Victoria.
2. That from and after the commencement of this Act a court shall be holden in and for the Colony of Victoria and its dependencies which shall be styled "The Supreme Court of the Colony of Victoria:" Provided however, and be it enacted, that no action, suit, or other proceeding at law or in equity, or any matter or thing, whether civil or criminal, or relating to affairs ecclesiastical, or of any other description whatsoever, which shall then be depending in the several departments of the Supreme Court of New South Wales for the district of Port Phillip, shall abate, surcease, or become discontinued; but the same and every of them shall be proceeded with, heard and determined in the Supreme Court of the Colony of Victoria, under the several provisions of this Act, without any alteration in their intituling, address, or any part thereof respectively: Provided also that no appeal then pending from the judgment, decision, decree, or order of the Supreme Court of New South Wales for the district of Port Phillip, or the Resident Judge thereof, heretofore pronounced or made, nor the appeal from any judgment, decision, decree, or order of such court or judge to be hereafter pronounced, or made in any cause or matter then depending or undecided, and upon which judgment has been reserved, to the Supreme Court of New South Wales or the judges thereof, shall be affected by the provisions of this Act, but the same may be respectively instituted, proceeded with, heard and determined, and the judgment thereof enforced as if this Act had not been passed.
3. That such Supreme Court of the Colony of Victoria shall consist of and be holden by and before a judge or judges, not exceeding three in number; each of whom shall be a practising barrister of England or Ireland, or advocate of Scotland, of not less than five years standing, or a practising barrister of the said court not previously admitted in any of the Superior Courts of Westminister, Dublin, or Edinburgh, of not less than eight years standing.  That such judges shall be appointed by Her Majesty's letters patent: And the salaries of such judges shall be paid to each of them, so long as their commissions shall remain in force respectively: And it shall be lawful for the Lieutenant Governor of the said colony to appoint such judge or judges until the pleasure of Her Majesty be known: Provided that until such appointment the Resident Judge of the Supreme Court of New South Wales for the district of Port Phillip shall exercise all the jurisdiction, power, and authorities of a Judge of the Supreme Court of the Colony of Victoria.
4. That one of the said judges shall be styled "The Chief Justice of the Supreme Court of the Colony of Victoria," and until Her Majesty's pleasure he known he shall have rank and precedence above and before all persons whomsoever in the said Colony of Victoria, excepting the Governor and Lieutenant Governor thereof, and except all such persons as by law or usage take place in England before the Lord Chief Justice of the Court of Queen's Bench.
5. That it shall be lawful for the Lieutenant Governor of the said colony, with the advice of the Executive Council thereof, to suspend from his office until the pleasure of Her Majesty be known, any judge of the said court who shall be wilfully absent from the said colony without a reasonable cause to be allowed by the said Lieutenant Governor and Executive Council: And also any judge who shall become incapable, or who shall neglect to perform the duties of his office, or who shall otherwise misbehave therein: And if any judge of the said court shall die or resign his office, or by reason of suspension, or in consequence of sickness, leave of absence, or any other temporary cause, be unable to perform the duties of his office, it shall be lawful for the said Lieutenant Governor, with the advice of the said Executive Council, to appoint some other fit and proper person qualified as hereinbefore required to perform the duties of such judge until the pleasure of Her Majesty be known: And such person so to be appointed shall possess all the powers and privileges, and perform all the duties of the judge in whose place he may be so appointed.
6. That no judge of the said court shall be capable of accepting, taking, or performing the duties of any other office or place of profit or emolument within the said Colony of Victoria, excepting such office as may be granted to such judge by Her Majesty's Sign Manual, or under the Great Seal of the High Court of Admiralty of England; and any such acceptance, taking or performance of the duties of any such other office, shall be deemed in law an avoidance of his office of judge, and his office and commission shall be thereby in fact superseded, and his salary thereupon cease.
7. That the said court shall have a Master in Equity, who shall be a practising barrister of England or Ireland, or advocate of Scotland, of not less than five years standing, or a practising barrister of the said court not previously admitted in any of the Superior Courts of Westminster, Dublin, or Edinburgh, of not less than six years standing; a Prothonotary, a Registrar, and Keeper of the Records, and such and so many other officers as to the judge or judges for the time being of the said court shall appear to be necessary for the administration of justice, and the due execution of all the powers and authorities of the said court: And such Master, Registrar, Prothonotary, Keeper, and other officers, shall respectively draw up, prepare, and settle all such and the like orders, rules, decrees, reports, and proceedings as are usually drawn up, prepared, and settled by persons holding similar offices in the Superior Courts of Law and Equity in Westminster, without any charge whatsoever for so doing:  And the appointment of every such person to any such office as is hereinbefore expressly named, shall be by letters patent, and shall be made during pleasure and in the first instance, and until such letters patent shall issue, such appointment shall be made by the Lieutenant Governor of the said colony, until the pleasure of Her Majesty be known: And all persons who may be appointed to any other office in the said court than those hereinbefore particularly enumerated, shall be so appointed by the Lieutenant Governor of the said colony: And no new office shall be created in the said court, unless the judge or judges thereof shall certify by writing under his or their hand or hands to the said Lieutenant Governor that such new office is necessary: Provided that until such appointments be made respectively, the Master in Equity, Registrar, and other officers of the Supreme Court of New South Wales for the district of Port Phillip, shall exercise the like powers and authorities, and discharge the like duties in the Supreme Court in the Colony of Victoria, as were by them severally and respectively exercised and discharged in the Supreme Court of New South Wales for the district of Port Phillip up to the time of the commencement of this Act.
8. That every barrister, and every attorney, solicitor and proctor, of the Supreme Court of New South Wales for the district of Port Phillip, may lawfully practise in the Supreme or other Courts of the Colony of Victoria, in the character in which he has been admitted, without its being necessary for him to make application to be admitted to practise in such Supreme or other Courts.
9. That the said Supreme Court of the Colony of Victoria shall be a Court of Record, and shall have and use as occasion may require a seal bearing an impression of the Royal Arms of England, having inscribed on a label thereon the words, "The Seal of the Supreme Court of the Colony of Victoria;" and such seal shall be delivered by the Lieutenant Governor of the said colony to and be kept in the custody of the Chief Justice of the said court: And any person who shall forge the seal, or any process, document, or writing of, or issuing from the said court, or any copy thereof, or who shall serve or enforce any such forged process, document, writing, or copy, knowing the same to be forged, shall be guilty of felony; and being convicted thereof, shall be liable to be sentenced, at the discretion of the judge presiding at the trial, to be worked on the roads of the said colony for any period not less than five years, and not exceeding ten years; or to be imprisoned for any period not exceeding three years.
10. That the said court shall have cognizance of all civil pleas, and shall have jurisdiction within the said Colony of Victoria and its dependencies, to hear and determine all actions whatsoever, real, personal, and mixed, as fully and amply, to all intents and purposes, as Her Majesty's Courts of Queen's Bench, Common Pleas, and Exchequer of Pleas at Westminster, or either of them lawfully have or hath in England.
11. That the said Court shall have jurisdiction to inquire of, hear and determine within the said Colony of Victoria and its dependencies, all treasons, felonies, misdemeanors, and offences of what nature or kind soever, and wheresoever committed, which can or may be inquired of, heard and determined in Her Majesty's Court of Queen's Bench at Westminster, or in the Central Criminal Court in London. 
12. That all treasons, felonies, misdemeanors, and offences cognizable in the said court, or in any circuit court in the said colony, shall be prosecuted by information in the name of Her Majesty's Attorney or Solicitor General for the said colony, or of such other person as the Lieutenant Governor of the said colony may appoint: And all issues at law, joined on every information, shall be determined by any one or more judge or judges of the said court, and all issues of fact joined on every such information, shall be tried by and before any one or more such judge or judges, and a jury of twelve men to be summoned, empanelled, and sworn as by law provided or to be provided.
13. That it shall be lawful for any person by leave of the said court to exhibit a criminal information against any other person for any crime or misdemeanor not punishable by death, alleged to have been by such person committed, and it shall not be necessary for any person applying to the court for leave to exhibit such criminal information to file any exculpatory affidavits unless required by order of the court so to do: And every criminal information exhibited by leave of the court shall be in the name of Her Majesty the Queen, and upon the information of the person to whom such leave has been granted; and the prosecutor shall file such information in the said court; and the same shall be heard, tried, and determined, in the same manner as any other information hereinbefore required to be heard, tried, and determined in the said court.
14. That the said court shall have equitable jurisdiction within the said Colony of Victoria and its dependencies, and such power, and authority to do, exercise, and perform all acts, matters, and things necessary for the due execution of such equitable jurisdiction as is possessed by the Lord High Chancellor of England in the exercise of similar jurisdiction within the realm of England; and also to do all such other acts, matters, and things as can and may be done by the said Lord High Chancellor within the realm of England in the exercise of the common law jurisdiction to him belonging, and to appoint guardians and committees of the persons and estates of infants, and of natural born fools, lunatics, and persons deprived of understanding and reason by the act of God and unable to govern themselves or their estates, and for that purpose to inquire into, hear, and determine by inspection of the person the subject of such inquiry, or by examination on oath, or otherwise of the party in whose custody or charge such person may be, or of any other person or persons or by such other ways and means by which the truth may be best discovered; and to act in all cases whatsoever as fully and amply to all intents and purposes as the said Lord High Chancellor or the grantee from the Crown of the persons and estates of infants, and lunatics, natural born fools, and persons deprived of understanding as aforesaid may now lawfully do.
15. That the said court shall have ecclesiastical jurisdiction within the said Colony of Victoria and its dependencies, and shall have power and authority to grant probate under its seal of the last will of any person who shall die, leaving personal effects within the said colony, and to commit letters of administration under its seal of all the personal effects whatsoever within the said colony of any person who shall die intestate, and to commit letters of administration under its seal with the will annexed, of all the personal effects whatsoever within the said colony of any person who shall have made a will without having named an executor thereof, or without having named an executor thereof resident within the said colony, or where the executor being duly cited shall not appear and sue forth probate thereof with reservation nevertheless in any of the two last mentioned cases to revoke such letters of administration, and to grant probate of the said will to the executor therein named when he shall duly appear and sue forth such probate:  And such letters of administration shall be committed by the said court to any person, whether of kin to, or a creditor of, the person so dying as aforesaid or not, as to the said court shall seem meet: And in every case in which letters of administration are granted by the said court it shall have power and authority to sequestrate all the personal effects whatsoever within the said colony of the person so dying as aforesaid, in cases allowed by law, as the same is and may be now used in the Province of Canterbury: And the said court shall have power and authority to require, hear, examine, and allow, and if necessary, to disallow and reject the accounts of the persons to whom probates may be granted, and letters of administration committed, in such manner and form, and as fully and amply to all intents and purposes whatsoever, as may now be done in the province aforesaid, subject nevertheless to such orders and directions as may be made by the said court, either generally as applicable to all cases, or specially with reference to any case in particular, or to such rules of court as may be made as hereinafter provided.
16. That it shall be lawful for the said court to make all such orders as may be necessary for the due administration of the assets of any such estate to all persons entitled thereunto, and also for the payment out of such assets to the persons administering the same of any costs, charges, and expenses which may have been lawfully incurred by them, and also such commission or percentage as shall be just and reasonable for their pains and trouble therein: And if any such executor or administrator shall neglect to pass his accounts, or to pay deposit, or dispose of the goods, chattels, and credits belonging to the estate of any deceased person at the time and in the manner directed, it shall be lawful for the said court, on the application of any person aggrieved by such neglect, to order and direct that such executor or administrator shall pay interest at a rate not exceeding eight pounds per centum per annum for such sums of money as from time to time shall have been in his hands, and the costs occasioned by the application.
17. That it shall be lawful for the Lieutenant Governor of the said colony, by any orders to be by him, with the advice of the Executive Council thereof, from time to time made and proclaimed, to define the limits of districts within, and the times at which circuit courts shall be holden in the said colony, and the said limits and times to alter and vary as he shall with the advice aforesaid deem necessary; and to direct that circuit courts shall be holden at such towns or places within those limits as he shall with the advice aforesaid think fit to appoint; and every such circuit court shall be holden in and for such district by one or more judge or judges of the said court, and shall be a Court of Record, and shall have power to punish for contempt, and shall have the same power, authority, and jurisdiction to hear and determine all civil issues to be tried within the limits of the circuit district in which the same is held, and all treasons, felonies, misdemeanors, and offences wheresoever committed as courts of nisi prius, assize, oyer and terminer, and general gaol delivery in England possess; and also to inquire into and assess damages in any action at law commenced in the said Supreme Court; and all persons convicted in such circuit court of any treason, felony, misdemeanor, or other offence cognizable therein, shall be subject and liable to the same penalties and punishments as by law could be inflicted on them if convicted thereof in the said Supreme Court: And every such circuit court shall stand in the same relation to the said Supreme Court with respect to civil issues as the court of nisi prius in England stands with respect to the Superior Court from which the nisi prius record is sent:  Provided however, that it shall not he necessary to issue any special commission to any judge or judges of the said Supreme Court to empower him or them to hold any such circuit court.
18. That every such circuit court shall be opened by the judge or judges of assize at the place and time proclaimed, provided however that should such judge or judges not arrive at the place where such court is to be holden in time to open the same on the day appointed by proclamation, it shall be lawful for the said judge or judges or for some other judge of the said Supreme Court, to open and hold the said circuit court on any day or days following the day upon which the same should have been opened and held, and the proceedings of such circuit court shall be as valid as if the same had been duly opened and held at the appointed time.
19. That every Judge of the said Supreme Court of the Colony of Victoria shall have power in vacation, if under the special circumstances of the case he shall see fit, to make all such orders, and grant all such writs as can only under ordinary circumstances he made or granted by the court, and every such order and writ shall have the same force and effect as a rule of the said court without the necessity for any further motion or order of the said court: Provided that every such order or writ so made shall be liable to be set aside on application to be made to the said court by motion on notice at any time within the first four days of the next ensuing term.
20. That if at any time there shall be only two judges of the said court, and a difference of opinion shall arise between them respecting the judgment or decision to be given, or decree or order to be made by them or the said court upon any subject matter or proceeding civil criminal relating to affairs ecclesiastical or otherwise brought before them or the said court, the judgment decision decree or order of the Chief Justice or of the senior judge as the case may be shall be the judgment decision decree or order of the said court.

http://ns.ausnc.org.au/corpora/cooee/source/3-044#Text