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3-310 (Text)

Item metadata
Speaker:
author,male,Pelham Reports,un addressee,male
ns1:discourse_type
Letter
Word Count :
1627
Plaint Text :
ns1:register
Government English
ns1:texttype
Imperial Correspondence
ns1:localityName
http://dbpedia.org/resource/South_Australia
Created:
1865
Identifier
3-310
Source
Bennett, 1979
pages
183-185
Document metadata
Extent:
9414
Identifier
3-310-plain.txt
Title
3-310#Text
Type
Text

3-310-plain.txt — 9 KB

File contents

This was an action commenced in the Local Court of Adelaide, under the provisions of the Local Courts Act, No. 15, 1861, against the defendants, to recover damages for slanderous words spoken by the wife of the defendant of the wife of the plaintiff: Plea  -  not guilty, and justification. The action was tried before the Special Magistrate and a jury. Verdict for plaintiffs  -  damages, £20 and costs. On the 25th day of April plaintiffs removed the judgment upon that verdict into this court, and sued out a writ of capias ad satisfaciendum, upon which the defendants were arrested. On the 24th June a rule nisi was obtained, calling upon the plaintiffs to show cause why the writ of certiorari to bring up a judgment between the same parties from so-styled Local Court of Adelaide, issued in this cause, should not be quashed, and why the writ of capias ad satisfaciendum, issued out of this court by the abovenamed plaintiffs against the abovenamed defendants, should not be set aside, on the grounds that there was no such court legally constituted as the Local Court of Adelaide, and that there was no judgment of this court to warrant the issuing of the said writ of capias ad satisfaciendum.
Gwynne, J.  -  Of these Local Courts there are in South Australia some thirty. They were first established by the Local Act, No. 5, of 1850, but the principal Act now relating to them is No. 15 of 1861, and this confers upon them very extensive jurisdiction, both criminal and civil. They have cognizance of all personal actions (including libel, slander, breach of promise of marriage, and malicious prosecution), when the debt or damage claimed is not more than £100; but, by consent, they have jurisdiction in any action without any limitation as to amount of claim. (See secs. 23, 24 and 25.) By the 27th sec. it is enacted that "a Local Court of Full Jurisdiction shall have cognizance of any action in which the title to any corporeal or incorporeal hereditament or easement shall be in question, or in which the validity or effect of any devise, bequest, or limitation under any will or settlement, or document in the nature of a settlement, may be disputed." These courts have also jurisdiction to try actions of ejectment. (See, amongst others, secs. 159 and 169). The only qualification of the judge (called a Special Magistrate) who presides in these courts, and exercises this extensive jurisdiction, is that he shall be a Justice of the Peace. (See sec. 8). And although in jury cases he is required to direct the jury upon all matters of law, and decide upon the admission or rejection of evidence (sec. 18), it is not necessary that he should be bred to the law, or have had any legal training whatever. The jury which the Special Magistrate is to direct "upon all matters of law" is not a jury of "twelve good men and true", but a jury of four jurymen (sec. 43), and even this sort of jury can only be obtained, in civil matters, upon the payment of £2 (sec. 37), and in criminal matters is refused altogether.  Then comes this extraordinary enactment  -  "All causes and matters cognizable under this Act by a Court of Full Jurisdiction shall be heard and determined in open court, in a summary way, according to equity and good conscience, and the substantial merits of the case, by and before, &c., a Special Magistrate and two Justices of the Peace for the said Province, or a jury." (See sec. 13.) I need only allude to two more provisions of the Act  -  the one relating to appeals to this court (see sees. 56 et seq.); the other (sec. 54), which enables a successful party to remove the judgment of the Local Courts into this (the Supreme) Court, when it is to have the same force as if originally a judgment of this court. It is unnecessary to allude to the criminal jurisdiction of Local Courts, except as illustrative of the genius of our local legislation. Certain felonies are matters cognizable under the Act by a Court of Full Jurisdiction (sec. 115), and therefore, pursuant to sec. 13, were to be heard and determined, not upon the broad principles and liberal spirit of the English Criminal Law, but "in a summary way, according to equity and good conscience, and the substantial merits of the case, before the Special Magistrate and two Justices, without a jury". This novel mode of administering criminal justice, however, no longer exists, as, in the case of The Queen v. Neville, I held that thus to try an Englishman encroached upon the great principle of English law, "that no man is to be punished until found guilty by a jury of his peers;" and, being supported in that view by my learned colleague Mr. Justice Boothby, the criminal jurisdiction of Local Courts has ceased to be exercised. But in reference to civil suits, what do those words mean, "according to equity and good conscience, and the substantial merits of the case?" Is the principle of deciding implied by these words applicable alike to jury cases and to cases heard before three magistrates, or only to the latter? The requirement that the Special Magistrate is in jury cases to direct the jury upon all matters of law, and decide upon the admission and rejection of evidence would seem to imply that the "equity and conscience" principle should only apply to cases where there is no jury; but even this conclusion seems doubtful, for although by sec. 56 an appeal is given to either party in a cause dissatisfied with the determination or direction of the Local Court upon a point of law or upon the admission or rejection of evidence, yet the Supreme Court shall, if of opinion that substantial justice (I suppose upon the equity and conscience principle) has been done between the parties, discharge the rule or order. Is it not meant that this new principle shall pervade the whole procedure of Local Courts? Is it not an attempt to administer what is called attributive justice? To me it appears that it is, and I cannot convey my sentiments on this attempt better than by quoting the words of Mr. Best: -  "To administer perfect attributive justice in all questions to which the innumerable combinations of human action give rise is the high prerogative of omniscience and impeccability; for to this end are required, not only an unclouded view of the facts as they have occurred, and a decision alike unerring and uncorrupted on the claims of the contending parties, but a complete foresight of all the consequences, both direct and collateral and down to their remotest ramifications, which will follow from that decision. The hopelessness of ever accomplishing this became early visible to the reflecting portion of mankind; and the observation of nature having taught them that great ends are best attained by the steady operation of fixed general laws, they conceived the notion of framing general laws for the government of society  -  rules based on the principle of securing the largest amount of truth and happiness in the largest number of cases, however their undeviating action may violate attributive justice or work injury in particular instances."  -  Best on Evidence, edition of 1860. The law of England (including in that expression the law of evidence) is built up of such general rules, and in that fact consists its excellence. In that fact consists all it possesses of certainty and impartiality of administration. "Optima est lex quae minimum relinquit arbitrio judicis," says Lord Bacon; but in the Local Courts, as it appears to me, the whole matter is left to the will and discretion of the presiding magistrate. His power is absolute. He may declare facts proved or disproved altogether at his will and pleasure. All he is required to do is to determine according to his own idea of equity and good conscience, and the substantial merits of the case as they appear to him, and this in a question of title to real estate, the validity of a will, or title in an action of ejectment. It is true that in jury cases the Special Magistrate is required to direct the jury upon all matters of law, and to decide upon the admission or rejection of evidence. But is not this a mockery? With every respect for the gentlemen who have been appointed to preside in Local Courts, and whom I am bound to admit have, as a whole, exhibited great integrity, and carried themselves wonderfully well, considering the difficulty and novelty of their position; yet I cannot refrain from observing that no men who were not bred to the law, and had very considerable practical experience in its administration, can possibly perform the duties imposed on Special Magistrates by the Local Courts Act . . . Seeing therefore, that these courts decide upon the inheritance, reputation, goods, and liberty of the Queen's subjects by a course of procedure unknown to the law of England, that they so decide without a jury of twelve men, and that in the appointment and tenure of office of the Special Magistrates the English system of judicature is altogether ignorant, I am of opinion that the Local Courts Act of 1861 is repugnant to the law of England. It appears to me, moreover, that the Local Courts Act of 1861 was not within the competency of the Local Legislature of South Australia, inasmuch as it abolishes pro tanto the Supreme Court, this court being founded, not immediately, though mediately, on Imperial legislation. I am also of opinion that it is opposed to the Constitution Act.

http://ns.ausnc.org.au/corpora/cooee/source/3-310#Text