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3-210 (Original)

Item metadata
Speaker:
author,male,Legislative Act,un addressee
ns1:discourse_type
Legal Document
Word Count :
4529
Plaint Text :
ns1:register
Government English
ns1:texttype
Legal English
ns1:localityName
http://dbpedia.org/resource/Queensland
Created:
1861
Identifier
3-210
Source
Bennett, 1979
pages
198-205
Document metadata
Extent:
25514
Identifier
3-210.txt
Title
3-210#Original
Type
Original

3-210.txt — 24 KB

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<source><g=m><o=u><age=un><status=1><abode=un><p=qld><r=gen><tt=lg><3-210>
An Act to amend the constitution of the Supreme Court of Queensland and to provide for the better Administration of Justice. (7th August, 1861.)
2. From and after the passing of this Act there shall be holden at Brisbane a court of civil and criminal jurisdiction which court shall be a court of record and shall be called the Supreme Court of Queensland.
3. Such Supreme Court 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 courts of Victoria New South Wales or of the said court not previously admitted in any of the superior courts of Westminster Dublin or Edinburgh of not less than live years standing and such judges shall be appointed by the Governor with the advice of the Executive Council by commission in Her Majesty's name Provided always that on the commencement of this Act the resident judge of the Supreme Court of Moreton Bay shall be a judge of the said court and shall receive a commission as aforesaid and upon the receipt of such commission any commissions that he then holds as resident judge of the Supreme Court of Moreton Bay shall be and be deemed to be forthwith cancelled so far as such commission shall or may be of any force in the Colony of Queensland Provided also that only one judge shall receive a commission as aforesaid until the number of judges shall be increased by an Act of the Legislature of the said colony.
4. Whenever there shall be more than one judge of the Supreme Court one of them may be styled "the Chief Justice of Queensland" and may be designated as such in the commission to be given to him as in this Act provided.
5. The commission or commissions of the judge or judges of the said Supreme Court shall be continue and remain in full force during his or their good behaviour notwithstanding the demise of Her Majesty or of Her Heirs and Successors any law usage or practice hereof in anywise notwithstanding Provided always that it shall be lawful for Her Majesty Her Heirs and Successors to remove any such judge or judges upon the address of both Houses of the Legislature.
12. 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 three years standing or a practising barrister of New South Wales or Victoria or of the said court not previously admitted in any of the Superior Courts of Westminster Dublin or Edinburgh. of not less than three years standing or an attorney-at-law of not less than seven years standing and such Master in Equity when appointed shall if required perform the duties and discharge the office of Chief Commissioner of Insolvency and the said court shall also have a Prothonotary and Registrar 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 Prothonotary and Registrar 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 or in such other manner as may have been provided for by any legislative enactment in force in the said colony without any charge whatsoever and the appointment of every such person to any such office as is hereinbefore expressly named shall be made by the Governor with the advice of the Executive Council and shall be by commission in Her Majesty's name and under the great seal of the colony and every such officer shall hold his appointment during ability and good behaviour but it shall be lawful for the Governor with the advice aforesaid to remove any such officer for inability or misbehaviour 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 Governor of the said colony with the advice aforesaid 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 Governor that such new office is necessary Provided that until such appointments be made respectively the Registrar and other officers of the Supreme Court as constituted before the passing of this Act shall exercise the like powers and authorities as were by them severally and respectively exercised and discharged in the said court up to the time of the passing of this Act. [199]
13. Every barrister and every solicitor attorney and proctor who practised in the Supreme Court of New South Wales at Moreton Bay before the separation of the Colony of Queensland from the Colony of New South Wales and before and at the time of the commencement of this Act may lawfully practise in the character in which he has been admitted without its being necessary for him to make application to be admitted to practise in the Supreme Court of the Colony of Queensland.
14. Any attorney solicitor or proctor of good repute in his profession having been three years in actual practice in Great Britain or the colony who shall pass the examination in classics or mathematics prescribed for persons seeking admission to the bar or who shall have a certificate of honor or other academical distinction in classics mathematics or law from any university or college within the British dominions may upon motion in open court be called and admitted a barrister-at-law Provided that when so called and admitted he shall cease to practise as an attorney solicitor or proctor and shall be struck off the roll of the Supreme Court but nothing herein contained shall extend to relieve persons so called and admitted from any action suit penalty or liability for misconduct neglect or other matter in the practice of his profession of an attorney solicitor or proctor nor to disable him from recovering the costs and charges due to him when so called and admitted or from asserting his right of lien or from being again admitted to practise as an attorney solicitor or proctor if disbarred by motion in open court at his own request without having been guilty of misconduct in the exercise of his profession of a barrister-at-law.
15. The Supreme Court of the Colony of Queensland shall be a court of record and shall have and use as occasion may require a seal having inscribed on a label thereon the words "the seal of the Supreme Court of Queensland" and such seal shall be delivered by the Governor of the said colony to and be kept in the custody of the Chief Justice of the said court or until such Chief Justice shall be appointed by the judge. [200]
16. The said court shall have cognizance of all civil pleas and shall have jurisdiction within the said Colony of Queensland 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.
17. Any Judge of the Supreme Court of Queensland shall try without a jury all civil actions in which the sum or matter in dispute shall not exceed one hundred pounds unless one of the parties shall require a jury and the costs to be allowed on taxation in such cases shall be in the discretion of the court Provided that in all cases under twenty pounds and in all undefended cases within the first beforenamed jurisdiction attorneys shall have equal right of audience with barristers.
18. Wherever in any Act in force in this colony provision is made for an appeal to a court of quarter sessions such appeal shall until the establishment of courts of quarter sessions in this colony lie to the said Supreme Court of Queensland or any judge thereof.
19. The said court shall have jurisdiction to inquire of hear and determine within the said Colony of Queensland 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 or by judges of assize or oyer and terminer and general gaol delivery in England.
20. All treasons felonies misdemeanors and offences cognizable in the said court or at any sittings thereof to be holden pursuant to the provisions of this Act in the said colony shall be prosecuted by information in the name of Her Majesty's attorney-general or solicitor-general for the said colony or of such other person as the Governor of the said colony may appoint who shall respectively perform the duties of a grand jury until other provisions shall be made in that behalf by Act of the Legislature 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 impannelled and sworn as by law provided or to be provided.
21. 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. [201]
22. Subject as next hereinafter provided the said court shall have equitable jurisdiction within the said Colony of Queensland 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 or other equity judges of England in the exercise of similar jurisdiction within the realm of England and also to do all other acts matters and things as can and may be done by the said Lord High Chancellor or other equity judges 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 other equity judges 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.
23. Whenever there shall be more than one judge it shall be lawful for the Governor of Queensland for the time being to nominate and appoint from time to time either the Chief Justice or one of the puisne judges to sit and hear and determine without the assistance of the other judges or either of them all causes and matters at any time depending in the said Supreme Court in equity and coming on to be heard and decided at Brisbane and every decree or order of such Chief Justice or of the judge so appointed shall in any such cause or matter (unless appealed from in the manner hereinafter provided) be as valid effectual and binding to all intents and purposes as if such decree or order had been pronounced and made by the Full Court.
24. The said court shall have ecclesiastical jurisdiction within the said Colony of Queensland 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 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. [202]
25. 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.
26. Any Judge of the said Supreme Court until a commission of insolvency shall have been appointed shall in respect of all estates sequestrated by the court as insolvent and all persons whose estates have been so sequestrated have all the powers and shall or may act as chief commissioner Provided that until such appointment as aforesaid whenever the said judge shall in that capacity grant refuse or suspend the certificate of any insolvent his decision shall (if appealed from) be reviewed by the court and confirmed reversed or varied in open court as upon a re-hearing Provided also that until as aforesaid any such judge may direct all or any of the meetings of creditors in any case as occasion may require and all proofs of debts thereat to take place before the Registrar or (in his absence) before the official assignee.
30. It shall be lawful for the Governor of the said colony by any orders to be made 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 number of 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 Supreme Court who shall fix the dates for the holding of the same and every such circuit court 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 always that so long as there shall be only one judge of the said Supreme Court he shall during the sittings of every such circuit court have power to exercise and perform all the duties which by virtue of his office as a judge of the said Supreme Court he is empowered to perform Provided however that it shall not be 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. [203]
31. Every such circuit court shall be opened by the judge or judges of assize at the time and place 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 Supreme 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.
32. From the passing of this Act all Acts of the Legislature Crown grants wills and other instruments affecting land cattle mortgages and liens on wool and letters of naturalization within the Colony of Queensland may be enrolled or registered in the office of the Registrar of the said Supreme Court of Queensland and for all purposes of and connected with such enrolment and registration the said Registrar shall have the same powers liabilities and duties in every respect as the Registrar-General would have had under any Act of Parliament for the registration of deeds except for the provisions of this Act.
33. It shall be lawful for the Governor with the advice of the Executive Council of the said colony from time to time to appoint a sheriff for the Colony of Queensland and its dependencies who shall hold office during pleasure that such sheriff by himself or his officers to be by him appointed and duly authorised under his hand and seal and for whose acts he shall be accountable during his continuance in such office and their employment by him shall execute all writs summonses rules orders warrants precepts commands and process of the said court which may be from time to time directed to him and shall make return of the same to the said court together with the manner of the execution thereof as he may be thereby required and shall receive and detain all such persons as shall be committed into his custody and shall discharge such persons as he may be by law enjoined.
34. It shall be lawful for the Governor with the advice of the Executive Council of the said colony to appoint deputies for the said sheriff in the districts in which circuits of the said court are to be held which deputies shall when required by the said court or any judge thereof by any writ process or other proceeding to them respectively directed or in any other manner perform within such districts all such acts as the sheriff would be hound to perform were he personally present and acting in such district. [204]
62. After the passing of this Act all decrees and orders of the Supreme Court in equity and all rules and orders of the said court at common law or in its ecclesiastical jurisdiction whereby any sum of money or any costs charges or expenses shall be payable to any person shall have the effect of judgment at law and such person shall or lawfully may have execution thereon for the moneys so payable and the judges of the said court may from time to time cause writs of execution to be framed accordingly and to issue as they shall think fit and all such writs shall be enforced in the same manner as writs of execution are in ordinary cases.
63. It shall be lawful for any prisoner to apply to the police magistrate of Brisbane for the time being for a conditional rule or order to admit any such prisoner to bail on an application made to him for a writ of habeas corpus and such police magistrate shall have power to issue the same if he shall think fit and the said rule or order shall have the same force and effect as if it had been granted by a Judge of the Supreme Court Provided always that no such rule or order shall be made absolute except by a judge of the Supreme Court.
67. It shall be lawful for the said court from time to time to make such rules for regulating the forms of process and mode of pleading in the said court and for the practice of the same in all its various departments and also for the government and conduct of the officers and ministers of the said court and for regulating the admission of barristers and of attorneys solicitors and proctors to practice therein and such rules from time to time to repeal vary and alter as occasion may require Provided that every such rule when so made by such a court shall be by it sent to the Colonial Secretary of the said colony and by him laid before the Legislative Assembly without delay and it shall be lawful for the said Legislative Assembly at any time within one calendar month after the same may have been laid before such Assembly to present an address to the Governor of the said colony to disallow any such rule who if he thinks fit shall disallow the same accordingly and if after having been so laid before the said Legislative Assembly for such time no address be presented such rule shall be published in the Government Gazette of the said colony and every such rule save as hereinafter provided shall take effect from the promulgation thereof by the said court and shall have the same force and efficacy as if inserted in this Act unless disallowed as herein mentioned Provided also that all the rules and orders for regulating the process pleading and practice and other matters hereinbefore enumerated now in force in the said Colony of Queensland at the time of the passing, of this Act shall continue and be in force in the said Supreme Court of the Colony of Queensland until repealed by rules made by virtue of the provisions herein contained except so far as any of them may be inconsistent with or repealed by the provisions of this Act.
68. The judge or judges or a majority of them for the time being of the said Supreme Court shall have power and are hereby required to make such general rules as he or they shall think fit for regulating and diminishing the fees to be allowed attorneys practising in the said court either in its common law equitable ecclesiastical or insolvency jurisdiction and also to make rules and regulations for the taxation of attorney's bills of cost in any of its jurisdictions and as between party and party or as between attorney and client specifying the several items to be allowed and the amount that is to be allowed on taxation for such item and also from time to time to alter vary or repeal any such rules or regulations Provided always that the rules and regulations so made altered or varied shall not take effect until one month after the publication thereof in the Government Gazette. [205]
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http://ns.ausnc.org.au/corpora/cooee/source/3-210#Original