Common Law Process Act 1867

Queensland COMMON LAW PROCESS ACT 1867 Reprinted as in force on 19 August 1994 (includes amendments up to Act No. 31 of 1972) Reprint No. 1 This reprint is prepared by the Office of the Queensland Parliamentary Counsel Warning—This reprint is not an authorised copy

Information about this reprint This Act is reprinted as at 19 August 1994. The reprint— • shows the law as amended by all amendments that commenced on or before that day • incorporates all necessary consequential amendments, whether of punctuation, numbering or another kind. The reprint includes a reference to the law by which each amendment was made—see List of legislation and List of annotations in Endnotes. Minor editorial changes allowed under the provisions of the Reprints Act 1992 mentioned in the following list have also been made to— • update citations and references (Pt 4, Div 2) • update references (Pt 4, Div 3) • express gender specific provisions in a way consistent with current legislative drafting practice (s 24) • use different spelling consistent with current legislative drafting practice (s 26(2)) • use standard punctuation consistent with current legislative drafting practice (s 27) • use expressions consistent with current legislative drafting practice (s 29) • relocate marginal or cite notes (s 34) • use aspects of format and printing style consistent with current legislative drafting practice (s 35) • omit provisions that are no longer required (s 39) • omit unnecessary referential words (s 41) • omit historical notes (s 42) • omit the enacting words (s 42A) • number and renumber certain provisions and references (s 43). Also see Endnotes for— • details about when provisions commenced • any provisions that have not commenced and are not incorporated in the reprint • further information about editorial changes made in the reprint, including— • Table of changed names and titles • Table of obsolete and redundant provisions • Table of renumbered provisions • Table of comparative legislation.

Queensland COMMON LAW PROCESS ACT 1867 TABLE OF PROVISIONS Section Page Sunday 23 Writs when executed on Sunday . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Affidavits sworn before a consul 24 Affidavits in certain cases may be sworn before a consul . . . . . . . . . . . . . . 5 Who to be deemed absent defendants 27 If defendant shall be absent at the commencement of foreign attachment proceedings to be sufficient . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 28 The term “absence” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Proceedings against absent defendants 29 Absent defendant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 30 Form of attachment and how served . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 31 Plaintiff to enter into a bond to account etc. . . . . . . . . . . . . . . . . . . . . . . . . . 8 32 After judgment plaintiff may issue fieri-facias . . . . . . . . . . . . . . . . . . . . . . . 8 Proceeding in the action 33 After attachment returned plaintiff may proceed in the action . . . . . . . . . . 9 Advertisement 34 Public notice to be given . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 The garnishees 35 Property and debts bound from the time attachment served . . . . . . . . . . . . 10 36 Inquiry as to property in garnishee’s hand—Attendance of parties . . . . . . . 11 37 Disposal of goods etc. by leave of court . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 38 Court to determine what property is to continue subject to attachment . . . 12 39 Property in possession of any codefendant or husband or wife . . . . . . . . . . 13 40 Attachment and execution may be pleaded in bar . . . . . . . . . . . . . . . . . . . . 13

2 Common Law Process Act 1867 Defendant’s rights 41 Provision for dissolving foreign attachment . . . . . . . . . . . . . . . . . . . . . . . . . . 14 42 Provision enabling absent defendant to come in and defend notwithstanding judgment against absent defendant . . . . . . . . . . . . . . . . . . . 14 Copartners 43 Provision in case of absent defendants sued as copartners . . . . . . . . . . . . . 15 44 Similar provision where defendants not sued as copartners . . . . . . . . . . . . . 16 45 Act to extend only to cases of contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Attachment of goods 46 Attachment upon goods of absconding debtor . . . . . . . . . . . . . . . . . . . . . . . . 17 Capias ad respondendum 47 Arrest on mesne process abolished except in certain cases . . . . . . . . . . . . . 18 48 No person to be arrested or held to bail unless on proof to the satisfaction of a Judge that the person is about to remove out of the jurisdiction of the Supreme Court or to abscond to remote parts within the State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 49 Sheriff may proceed to arrest defendant—Defendant to remain in custody until defendant finds bail or makes deposit . . . . . . . . . . . . . . . . . . . 19 50 Order may be made at any stage of the proceedings before final judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Discharge of prisoner 51 Defendant may apply for defendant’s discharge forthwith—Judge may discharge defendant or not . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Capias ad satisfaciendum 52 As to arrests on Supreme Court writs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 53 Writs of ca. sa. to fix bail . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 54 Proceedings for charging in execution a person already in prison . . . . . . . . 21 Discharge of prisoner 55 Sheriff or gaoler may discharge prisoner by authority of the attorney in the cause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Fieri-facias 56 Sheriff empowered to seize moneys bank notes etc.—And to pay money or bank notes to execution creditor . . . . . . . . . . . . . . . . . . . . . . . . . . 21 57 Property of debtors liable to be sold in execution . . . . . . . . . . . . . . . . . . . . . 23 58 Sheriff to execute deed of bargain and sale to purchaser . . . . . . . . . . . . . . . 23

3 Common Law Process Act 1867 59 Sales of land by sheriff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 60 Deeds of sale by sheriff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 61 Sheriff may sell equities of redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Special commissioners 64 Chief Justice to appoint commissioners in certain towns . . . . . . . . . . . . . . . 24 65 No writ of capias to issue unless upon proof that defendant is about to leave the State—Security to be given by the plaintiff . . . . . . . . . 25 66 Memorandum by commissioner on writ of capias . . . . . . . . . . . . . . . . . . . . . 26 67 Writs of capias under the Act to be directed to special bailiff . . . . . . . . . . 26 68 Copies of writs to be transmitted to Supreme Court in Brisbane . . . . . . . . . 26 69 Fees to commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 70 Bail to be taken by bailiff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 71 Deposit in lieu of bail . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 72 Fees to bailiff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 73 Commissioners may issue writs of summons and subpoena to give evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 74 Judges to make rules and regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 New forms 75 New forms of writs and other proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Powers of the Court 76 General rules may be made by the Judges . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Commencement and short title 77 Commencement of Act—Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 SCHEDULE 6 . . . . . . . . . . . . . . . . . . . . . . . . 31 SCHEDULE 7 . . . . . . . . . . . . . . . . . . . . . . . . 32 ENDNOTES 1 Index to Endnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 2 Date to which amendments incorporated . . . . . . . . . . . . . . . . . . . . . 33 3 List of legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 4 List of annotations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 5 Table of changed names and titles . . . . . . . . . . . . . . . . . . . . . . . . . . 37 6 Table of obsolete and redundant provisions . . . . . . . . . . . . . . . . . . . 37

4 Common Law Process Act 1867 7 Table of renumbered provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 8 Table of comparative legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

s 23 5 Common Law Process Act 1867 s 24 COMMON LAW PROCESS ACT 1867 [as amended by all amendments that commenced on or before 19 August 1994 2 ] An Act to consolidate and amend the laws relating to mesne process and process of execution and to the remedies of plaintiffs in actions at common law † Sunday ˙ Writs when executed on Sunday 23. Any writ of capias ad respondendum or of capias ad satisfaciendum issued or to be issued out of the Supreme Court shall and may respectively be lawfully executed upon a Sunday in like manner in all respects as the same respectively may now be executed upon any other day any law statute or usage to the contrary in anywise notwithstanding. † Affidavits sworn before a consul ˙ Affidavits in certain cases may be sworn before a consul 24. Any affidavit for the purpose of enabling the court or a Judge to direct proceedings to be taken against a defendant residing out of the jurisdiction of the said court may, in any country or place outside the Commonwealth, be sworn before any consul-general consul vice-consul or consular agent for the time being appointed by Her Majesty or before any Australian Consular Officer within the meaning of the Australian Consular Officers’ Notarial Powers and Evidence Act 1946 , or before any other person who is a consular officer within the meaning of section 37A of the Evidence and Discovery Act 1867 , exercising his or her functions in that country or place and every affidavit so sworn by virtue of this Act may be

s 27 6 Common Law Process Act 1867 s 28 used and shall be admitted in evidence saving all just exceptions provided it be signed by such consul-general consul vice-consul or consular agent, or by such Australian Consular Officer or, as the case may be, by such other person who is a consular officer within the meaning of section 37A of the Evidence and Discovery Act 1867 , and it shall be taken to be so signed if it purport to be so signed without proof of the official character and signature of the person appearing to have signed the same † Who to be deemed absent defendants ˙ If defendant shall be absent at the commencement of foreign attachment proceedings to be sufficient 27.(1) The provisions of sections 28 to 45 shall apply to any defendant who shall be absent from the State at the time of proceeding thereunder notwithstanding that the defendant may have been within the State at the time of issuing the writ of summons against the defendant. (2) However, it shall appear by affidavit that reasonable efforts were made and with due diligence to serve such summons on the defendant but without effect. (3) In addition, at any time during such proceedings a Judge may require proof to the Judge’s satisfaction that the plaintiff has no sufficient remedy under the remaining sections of this Act and in default thereof may stay proceedings or make such order as to the Judge may seem just. ˙ The term “absence” 28. Absence from the said State shall for the purposes of sections 29 to 45 be taken to mean absence for the time being whether the party shall ever have been within the said State or not.

s 29 7 Common Law Process Act 1867 s 30 † Proceedings against absent defendants ˙ Absent defendant 29.(1) In every action at law which shall hereafter be commenced in the Supreme Court wherein it shall appear by an endorsement upon the writ of summons made by the officer or person and by an affidavit of such officer or person who shall be charged or entrusted with the service thereof upon any defendant in such action to the effect that the officer or person has made diligent search for such defendant and has been unable to find the defendant if an affidavit shall be filed on behalf of the plaintiff (in addition to a full affidavit of the cause of action) that such cause of action arose within the said State and that to the best of the deponent’s belief such defendant does not reside within the said State and is to the best of the deponent’s belief possessed of or entitled to or otherwise beneficially interested in any lands moneys securities for money chattels or other property in the custody or under the control of any person or persons in the said State (to be named in such affidavit) or that any such person or persons is or are indebted to such defendant the plaintiff may proceed against such defendant by process of foreign attachment in the manner hereinafter directed. (2) However, by leave of a Judge (where it shall appear that plaintiff may sustain injury by the delay) such affidavit may be filed before the return of such writ of summons. ˙ Form of attachment and how served 30.(1) At any time after the filing of such endorsement and affidavits as aforesaid a writ of foreign attachment may be issued at the plaintiff’s instance as of course and every such writ shall be in such form as the Supreme Court shall prescribe and be returnable into the said court either in term or in vacation on some day not less than 14 days nor more than 60 days next after the date thereof and shall be served upon the several garnishees or persons therein named in whose hands it is intended thereby to attach any such lands moneys chattels property or debts by delivering a copy thereof to each such garnishee personally or by leaving the same at his or her then or last usual place of abode.

s 33 8 Common Law Process Act 1867 s 33 Proviso as to proof where cause of action accrued (2) However, final judgment shall in no case be signed in any such action until an entry shall have been made on the record of the issue of such writ of attachment with a suggestion of the fact that the cause or causes of action so arose as aforesaid and in case it shall at any time appear that the cause of action did not arise within the said State the attachment shall be forthwith dissolved with costs to be paid by the plaintiff to such parties and in such manner as the court or any Judge thereof shall direct. ˙ Plaintiff to enter into a bond to account etc. 31. Within 14 days next after any such writ of attachment shall have issued as aforesaid the plaintiff at whose suit the same shall have been issued or if absent some person on the plaintiff’s behalf shall before the prothonotary registrar or some commissioner of the Supreme Court enter into a bond with 2 sufficient sureties to be approved of by such prothonotary registrar or commissioner acknowledging himself or herself and themselves to be indebted to the defendant against whom such attachment shall have so issued in such sum as one of the Judges shall think fit to order conditioned amongst other things to repay all such sums as the said plaintiff shall recover in the action in case the judgment therein shall be thereafter vacated reversed or altered together with all costs sustained by the defendant which said bond and condition shall be in such form as the said court shall prescribe and in case of any breach or alleged breach of such condition the defendant shall be at liberty to sue the parties to such bond thereon at any time and if such bond be not so entered into as aforesaid the attachment shall be ipso facto dissolved. ˙ After judgment plaintiff may issue fieri-facias 32.(1) At any time after such bond shall have been so entered into and after final judgment in favour of the plaintiff shall have been obtained it shall be lawful for the plaintiff to cause a writ or writs of fieri-facias upon such judgment to be from time to time issued as in any ordinary case for the amount of the debt or damages and costs thereby recovered and to cause to be taken in execution under any such writ (as against any defendant whose property shall have been so attached as aforesaid) not only all or any part of the lands goods moneys and other property so attached and which shall then

s 33 9 Common Law Process Act 1867 s 33 continue subject to such attachment as aforesaid in whose hands soever the same property shall then be (and whatever may be the nature of such property whether ordinarily liable to be taken in execution or not and although the same or part thereof may be of the nature of a chose in action) but also by leave of a Judge any other real or personal property of the defendant which the said plaintiff shall then be able to find and to receive any such goods moneys or property in satisfaction or part satisfaction of such debt or damages and costs at an amount to be fixed by the sheriff or to cause all such property (except as next mentioned) to be sold under such writ or writs as in ordinary cases. Compelling payment of debts due to defendant under attachment (2) However, with respect to any such debt or other chose in action as aforesaid no sale or other disposition thereof shall take place except by order of the court or one of the Judges thereof and upon the application of the plaintiff it shall be lawful for the said court or any Judge thereof at any time in a summary manner to authorise an action for the amount of any such debt to be brought in the name of the creditor being such defendant as aforesaid or to cause the debtor to be summoned to attend such court or Judge to show cause why the debtor should not forthwith pay the amount of such debt to such plaintiff and if no sufficient cause be shown to order such payment accordingly and to enforce such order together with all costs attending the same by an attachment for a contempt as in other cases. (3) In addition, where such leave of a Judge shall not have been obtained the writ of fieri-facias shall be special and limited to the property so attached or to part thereof. † Proceeding in the action ˙ After attachment returned plaintiff may proceed in the action 33.(1) At any time after the return day of any such writ of attachment it shall be lawful for the plaintiff to proceed in the action as if the defendant against whom the same shall have so issued resided in Brisbane in the State aforesaid and had appeared to such action in person. (2) However, such bond as is hereinafter in that behalf prescribed shall have been first duly entered into.

s 34 10 Common Law Process Act 1867 s 35 † Advertisement ˙ Public notice to be given 34. In addition to service of the writ of foreign attachment the plaintiff shall also cause a notice of the issue of such writ signed by the plaintiff or the plaintiff’s attorney to be published in the Gazette and not less than twice in one other Brisbane newspaper and if the defendant or any garnishee shall reside within any other electoral district than Brisbane then not less than twice also in some newspaper published within such district or nearest thereto if none be published within it and every such notice shall be in such form as the court shall direct and the last of such publications thereof shall be 1 week at the least before the day on which the writ of attachment shall be made returnable. † The garnishees ˙ Property and debts bound from the time attachment served 35. From the time of the service of such writ upon any such garnishee or person as aforesaid all and singular the lands and other hereditaments moneys and chattels bills bonds and other property of whatsoever nature in the custody or under the control of such garnishee then belonging to the defendant against whom such writ issued or to or in which such defendant shall then be legally or equitably entitled or otherwise beneficially interested (and whether solely or jointly with any person or persons) and all debts of every kind then due by any such garnishee to such defendant although the same or part thereof may be payable only at a future day shall to the extent of such defendant’s right title and interest therein respectively be attached in the hands of such garnishee and (subject to any bona fide prior claims or liens thereon) be liable to the satisfaction of the particular demand or cause of action of which he or she shall by the said writ have had notice and if any such garnishee or person without the leave of the court or one of the Judges shall at any time after such service and before the said attachment shall be dissolved sell or otherwise knowingly dispose of or part with any such property or pay over any such debt or any part thereof excepting only to or to the use of the plaintiff in such writ he or she shall upon the application in

s 36 11 Common Law Process Act 1867 s 36 a summary way of such plaintiff to the court or any Judge thereof and on proof of the facts pay such damages to the plaintiff as such court or Judge shall in that behalf think fit to order. ˙ Inquiry as to property in garnishee’s hand—Attendance of parties 36.(1) Upon the return of every such writ of attachment as aforesaid or as soon after as conveniently may be and upon such other day or days of adjournment (if any) as shall in that behalf be directed the said court or one of the Judges thereof shall proceed to inquire and determine whether in fact the plaintiff’s cause of action arose within the said State and if so then what lands moneys chattels and other property as aforesaid (sufficient or not more than sufficient to satisfy the plaintiff’s cause of action together with the plaintiff’s costs of suit) then are or were at the time of the service of the said writ in the custody or under the control of any such garnishee or person as aforesaid belonging to the defendant or to or in which the defendant was at that time entitled or interested as aforesaid and what debts were then due to such defendant from any such garnishee or person and the particulars thereof and whether such lands moneys and other property and debts or any part or parts thereof are or can be made available for the purpose of making such satisfaction as aforesaid and to what amount respectively and for the purposes of such inquiry and determination it shall be lawful for the said court or Judge in a summary way to permit the said plaintiff to examine (before the said court or a Judge or before a commissioner of the said court) viva voce upon oath every such garnishee or person together with such witnesses (if any) as the said court or Judge may think proper to be so examined and for that purpose to make such orders and issue such summonses to the several garnishees and to any witness or witnesses as may in that behalf be deemed expedient and any such garnishee or person as aforesaid or witness who shall refuse or neglect to attend according to the exigency of any such writ of attachment or to obey any such order or summons or shall refuse to be so examined shall be liable to be summarily proceeded against as in cases of contempt of court and to be punished accordingly. (2) However, in any case where it shall under the circumstances appear to be reasonable or just so to do it shall be lawful for the court or any Judge to dispense with the attendance of any such garnishee upon the garnishee submitting to be examined upon oath before a commissioner of the court or

s 39 12 Common Law Process Act 1867 s 40 upon such other terms as such court or Judge shall impose and where any such garnishee shall attend in obedience to any such writ or summons it shall be lawful for the court or sitting Judge to award the garnishee the reasonable expenses of such attendance to be paid by the plaintiff. ˙ Disposal of goods etc. by leave of court 37. If any such garnishee or person in whose hands any such lands goods or property as aforesaid shall have been so attached shall be desirous of disposing of the same or any part thereof or of receiving or paying (as the case may be) the amount of any bill bond or debt or other chose in action or any part thereof pending such attachment and shall apply for that purpose to the court or to one of the Judges it shall be lawful for the said court or Judge (due notice having been given to the plaintiff of such intended application) to authorise such garnishee or person to sell or dispose of any such property or to receive or pay any such amount and the proceeds of such sale or disposal or the amount so received or paid (as the case may be) shall be thereafter held by such garnishee or person or be paid into court or invested or otherwise be detained or appropriated subject to such attachment as aforesaid or otherwise for the satisfaction of the plaintiff as such court or Judge shall think fit to order. ˙ Court to determine what property is to continue subject to attachment 38.(1) So soon as upon any such examination or inquiry as aforesaid it shall be ascertained by the court or sitting Judge what lands moneys or other such property and debts as aforesaid can (consistently with existing liens or prior claims thereon to be determined by the said court or Judge) be made available for the purpose of making satisfaction to the plaintiff as aforesaid the said court or Judge shall forthwith order the same (or such part or parts thereof respectively as such court or Judge shall think proper in that behalf) to be thenceforward holden for that purpose and to continue subject to such attachment accordingly or to be sold or otherwise disposed of if such court or Judge shall think fit and the proceeds or (in case of debts then payable) the amount of such debts to be paid into the hands of some officer of the court subject to such attachment as the said court or Judge may order and with respect to all and singular the lands moneys and other property debts and other choses in action to which no such order as aforesaid shall be intended to apply or as to which no such order can be made it shall be

s 41 13 Common Law Process Act 1867 s 42 lawful for the said court or any of the Judges at any time to direct that the said attachment shall be dissolved. Proviso as to any second writ (2) However, where more than 1 writ of attachment shall have issued against the same garnishee or person or the same property shall have been attached at the suit of more than 1 plaintiff it shall be lawful for the said court or any Judge to award and determine how much and what parts of the property so attached or to what amount in value thereof shall be retained or holden under each of such writs or be paid into court or disposed of (as the case may be) for the separate benefit of each plaintiff and as to writs lodged with the sheriff on the same day the plaintiffs therein shall be entitled to satisfaction pari passu but if any of such writs shall have been lodged with the sheriff on different days the plaintiffs shall be entitled to satisfaction respectively according to the priority of each in such lodgment. ˙ Property in possession of any codefendant or husband or wife 39. The property of any such absent defendant as aforesaid may under the provisions of this Act be attached and taken in the custody or power of the defendant’s husband wife or of any codefendant and no process of foreign attachment against any such absent defendant nor any lien intended to be thereby created upon the land moneys securities debts and chattels or other property of such defendant thereby attached shall be defeated by reason of such codefendant or any other garnishee as aforesaid being or claiming to be jointly interested with such defendant therein either as partner or otherwise and in all cases it shall be sufficient for the purposes of this Act to attach property in the hands of the person or persons having the actual care custody or control thereof for the time being. ˙ Attachment and execution may be pleaded in bar 40. Every writ of attachment upon which any order shall have been made as aforesaid where the same shall have been followed by execution levied may be pleaded in bar by any person or persons in whose hands any lands goods debts or effects as aforesaid shall be attached to any action brought by or on behalf of the defendant for the recovery of such property and if any such action shall be brought pending the attachment the same shall be stayed by order of the court or a Judge until the attachment shall be dissolved or the

s 43 14 Common Law Process Act 1867 s 43 proceedings thereupon be otherwise determined and in such plea it shall be necessary only to state shortly that such writ of attachment was issued and to set out the substance of the order finally made thereon and then to allege that the property sought to be recovered was taken under a writ of execution issued after such order. † Defendant’s rights ˙ Provision for dissolving foreign attachment 41. If pending any such writ of foreign attachment as aforesaid or at any time before final judgment obtained in the action in which such writ issued the defendant against whom such attachment shall have issued or any person on the defendant’s behalf shall before the registrar of the said court enter into a bond with 2 sufficient sureties to be approved of by such registrar acknowledging himself or herself and themselves to be indebted to the plaintiff in such sum as a Judge shall think fit to order conditioned to pay the said plaintiff the amount of such debt or damages and costs as the plaintiff shall at any time thereafter recover in such action then it shall be lawful for such defendant or person entering into the said bond upon entering an appearance (or if such appearance shall previously have been entered by the plaintiff then upon filing a plea or pleas therein) to defend such action and upon giving notice thereof to the said plaintiff to apply to the said court by motion as of course that the said attachment may be dissolved and the same shall be dissolved accordingly and the action shall thereupon proceed to trial and judgment in the ordinary manner. ˙ Provision enabling absent defendant to come in and defend notwithstanding judgment against absent defendant 42. If after any final judgment obtained as aforesaid an affidavit shall be made by the defendant against whom such process of foreign attachment shall have issued as aforesaid that such defendant had at the time of the obtaining of the said judgment and still hath a substantial ground of defence (either wholly or in part) to the plaintiff’s action on the merits and such affidavit (sworn as next hereinafter mentioned) shall at any time before the expiration of 3 years next after such judgment be filed in the said court then upon motion thereupon for that purpose made to the said court on behalf of

s 44 15 Common Law Process Act 1867 s 45 the said defendant and after due notice thereof given to the said plaintiff (and security being entered into for the payment to the plaintiff of all costs by the plaintiff at any time thereby sustained) it shall be lawful for the said court to cause the merits so alleged as aforesaid to be inquired into and determined in such manner and form either by a feigned issue between the parties or otherwise and at such time and under terms and conditions for the purpose of securing the substantial ends of justice as to the said court shall seem meet and the said court after such inquiry and determination had shall thereupon give such judgment in the matter for the reversal of the judgment in the original action either in the whole or in part or shall or lawfully may from time to time make such order or orders in the premises between the parties as the justice of the case shall appear to require and every such judgment and order may at any time (if the party succeeding shall think fit) be suggested upon or added to the record of the original action in which such final judgment shall have been so obtained as aforesaid and every such affidavit if made within the said State shall be sworn before one of the Judges or some officer of the court or person authorised to take affidavits to be used in the said court or if made elsewhere shall be sworn before a Judge or master of some court of law or equity or the Chief Magistrate of some city or corporate town certified under the hand and seal of such Magistrate. † Copartners ˙ Provision in case of absent defendants sued as copartners 43. However, in all cases wherein 2 or more defendants shall be sued as copartners and as to any of such defendants there shall be such endorsement and affidavits as in section 29 mentioned but as to any other of such defendants there shall be a return of personal service or of cipi corpus then if at any time after any such return an affidavit shall be filed that to the best of the deponent’s knowledge and belief the defendant served or arrested did in fact when the cause of action accrued carry on business in the said State as a copartner jointly with the defendant or defendants as to whom there shall have been such endorsement and affidavits and that such last mentioned defendant or defendants is or are absent from the State it shall be lawful for the plaintiff at the plaintiff’s option to proceed against every such absent defendant (in case no appearance be entered for him or her) in the manner next hereinafter mentioned that is to say upon the filing of such

s 44 16 Common Law Process Act 1867 s 45 affidavit or as soon after as conveniently may be the plaintiff shall cause a notice to every such defendant signed by himself or herself or the plaintiff’s attorney to be published in the Gazette and in not less than 1 other Brisbane newspaper in such form as the court shall for that purpose direct requiring every such defendant to appear and if on the day named in such notice (such day not being less than 10 days next after the day of the publication of the same in the said Gazette) no appearance be entered for the defendant or defendants so being absent from the State the plaintiff may proceed as if he, she or they resided in the said State and had appeared to the action in person. ˙ Similar provision where defendants not sued as copartners 44.(1) The like appearance may be entered and proceedings had where 2 or more defendants shall be sued although not as copartners (where there shall be such endorsements and affidavits) upon an affidavit by or on behalf of the plaintiff that the cause of action against all the defendants accrued within the said State and that the defendant or defendants as to whom such endorsements and affidavits was made is or are absent from the State. (2) However, in addition to the publication of such notice as aforesaid the plaintiff shall give security by bond before any such appearance as aforesaid shall be entered by the plaintiff to such amount and in such form as a Judge shall order conditioned to repay all such sums as the plaintiff shall recover in the action against any such absent defendant together with all costs sustained by such defendant in the premises in case the judgment therein against the defendant shall afterwards be vacated reversed or altered and every such defendant shall have the like remedy and the same proceedings may be taken on the defendant’s behalf for procuring the reversal of such judgment so far as the same affects such defendant as are hereinbefore provided with respect to defendants against whose property there shall have been issued as aforesaid any writ of foreign attachment. ˙ Act to extend only to cases of contract 45. Nothing in sections 27 to 44 contained shall extend to any action of trespass or other action in tort (trover or detinue excepted) but to actions on or arising out of contract only.

s 46 17 Common Law Process Act 1867 s 46 † Attachment of goods ˙ Attachment upon goods of absconding debtor 46.(1) If a plaintiff in any action shall by the affidavit of himself or herself or some other person or persons show to the satisfaction of a Judge of the Supreme Court that such plaintiff has a cause of action against the defendant or defendants to the amount of $20 or upwards or has sustained damage to that amount and that the defendant or defendants is or are about to remove or is or are making preparations to remove or has or have absconded out of the jurisdiction of the court or to remote parts within the State by which is intended parts beyond the limits which now are or hereafter may be prescribed for location within the same and that such action will be defeated thereby it shall be lawful for such Judge of the Supreme Court by a special order upon such terms as to giving security or otherwise as the Judge may deem fit to direct that the plaintiff have leave to issue a writ in the form contained in the said Schedule 6 which said writ shall be called a writ of attachment and seizure and thereupon the sheriff shall seize and attach the goods and chattels of the defendant or defendants and if the defendant or defendants whose goods and chattels shall have been so seized and attached or any one on his, her or their behalf shall give bail with 2 sufficient sureties in treble the amount of debt or damages sought to be recovered by the plaintiff the action shall proceed and the sheriff shall release the said goods from the sheriff’s possession but in default of such bail at the expiration of 14 days from the return of the said writ of attachment the action shall or may be set down for trial before the registrar when the plaintiff shall prove the plaintiff’s debt or damages viva voce to the satisfaction of the registrar and such proof shall be reduced to the form of a deposition and so signed by the deponents and also by the registrar and filed and thereupon judgment may be entered in the form contained in Schedule 7 and a special writ of fieri-facias may issue thereon for the sale of the said goods and chattels with the memorandum also in the said Schedule 6 contained endorsed thereon. (2) However, if the goods and chattels so seized shall be of such a nature as to render the immediate sale thereof expedient the Judge or in the Judge’s absence the said registrar upon proof thereof upon affidavit may order the same to be sold and the money to be deposited in court until such bail shall be given and if such bail shall not be given within the time aforesaid the

s 49 18 Common Law Process Act 1867 s 51 proceeds of any such sale shall be paid to the sheriff in satisfaction of the debt or damages and costs in such writ of fieri-facias upon the said judgment. (3) In addition, nothing herein contained shall prevent the plaintiff from arresting the defendant on a capias ad respondendum under any law now or hereafter to be in force. (4) In addition, the plaintiff unless it be otherwise ordered by a Judge shall enter into such bond as is required by section 31 mutatis mutandis. † Capias ad respondendum ˙ Arrest on mesne process abolished except in certain cases 47. No person shall be arrested upon mesne process in any civil action in any court within the said State except in the cases and in the manner hereinafter provided. ˙ No person to be arrested or held to bail unless on proof to the satisfaction of a Judge that the person is about to remove out of the jurisdiction of the Supreme Court or to abscond to remote parts within the State 48. If a plaintiff in any action in which the defendant is now liable to arrest whether upon the order of a Judge or without such order shall by the affidavit of himself or herself or some other person or persons show to the satisfaction of a Judge of the Supreme Court that such plaintiff has a cause of action against the defendant or defendants to the amount of $40 or upwards or has sustained damage to that amount and that the defendant or any 1 or more of the defendants is about to remove or is making preparations to remove out of the jurisdiction of the Supreme Court or otherwise to abscond to remote parts within the said State (by which is intended parts beyond the limits which now are or hereafter may be prescribed for location within the same) and that such action will be defeated unless he she or they be forthwith apprehended it shall be lawful for such Judge by a special order to direct that such defendant or defendants so about to remove or abscond shall be held to bail for such sum as such Judge shall think fit not exceeding the amount of the debt or damages and thereupon it

s 52 19 Common Law Process Act 1867 s 53 shall be lawful for such plaintiff within the time which shall be expressed in such order but not afterwards to sue out 1 or more writ or writs of capias against any such defendant or defendants so directed to be held to bail which writ of capias shall be in the form to be prescribed as hereinafter mentioned by the Judges of the Supreme Court. ˙ Sheriff may proceed to arrest defendant—Defendant to remain in custody until defendant finds bail or makes deposit 49. The sheriff or other officer to whom any such writ of capias ad respondendum shall be directed shall before the return of the said writ but not afterwards proceed to arrest the defendant thereupon and such defendant when so arrested shall remain in custody until the defendant shall have given a bail bond to the sheriff or other officer or shall have made deposit of the sum endorsed on such writ of capias together with $20 costs and all subsequent proceedings as to putting in and perfecting special bail shall be subject to the said rules made or hereafter to be made by the Judges of the said court for the practice of the court in such cases. ˙ Order may be made at any stage of the proceedings before final judgment 50. Any such special order may be made and the defendant arrested in pursuance thereof at any time after the commencement of such action and before final judgment shall have been obtained therein. † Discharge of prisoner ˙ Defendant may apply for defendant’s discharge forthwith—Judge may discharge defendant or not 51.(1) It shall be lawful for any person arrested upon any such writ of capias ad respondendum to apply at any time after such arrest to a Judge of the Supreme Court for an order or rule on the plaintiff in such action to show cause why the person arrested should not be discharged out of custody and it shall be lawful for such Judge to make absolute or discharge such order or rule and to direct the costs of the application to be paid by either party or to make such other order therein as to such Judge shall seem

s 54 20 Common Law Process Act 1867 s 56 fit. (2) However, any such order made by a Judge may be discharged or varied by the court on application made thereto by either party dissatisfied with such order. † Capias ad satisfaciendum ˙ As to arrests on Supreme Court writs 52.(1) Except as hereinafter provided no person shall be arrested on any writ of capias ad satisfaciendum issuing out of the Supreme Court. Proviso as to fraudulent concealments and as to departure from the State (2) However, if any Judge of the said Supreme Court shall be satisfied by affidavit that the defendant fraudulently conceals money goods or valuable securities from the Judge’s judgment creditor or that the defendant is about to leave the State without satisfying the judgment the said Judge shall order such writ to issue and the defendant may be arrested on such writ anything hereinbefore contained notwithstanding. Proviso as to malicious injuries (3) In addition, nothing in this section contained shall extend to any writ of capias ad satisfaciendum issued in any action for breach of promise of marriage libel slander seduction criminal conversation with the plaintiff’s wife or any malicious injury. ˙ Writs of ca. sa. to fix bail 53. In any case in which a defendant shall have been arrested or have given bail upon a writ of capias ad respondendum a writ of capias ad satisfaciendum may be issued to fix the bail or charge the defendant in execution as of course. ˙ Proceedings for charging in execution a person already in prison 54. It shall not be necessary in any case to sue out a writ of habeas

s 56 21 Common Law Process Act 1867 s 56 corpus ad satisfaciendum to charge in execution a person already in the prison of the court but such person may be so charged in execution by a capias ad satisfaciendum in all cases where by law such last mentioned writ may now issue and the service of such last mentioned writ upon the keeper of the prison for the time being shall have the effect of a detainer. † Discharge of prisoner ˙ Sheriff or gaoler may discharge prisoner by authority of the attorney in the cause 55. A written order under the hand of the attorney in the cause by whom any writ of capias ad satisfaciendum shall have been issued shall justify the sheriff gaoler or person in whose custody the party may be under such writ in discharging such party unless the party for whom such attorney professes to act shall have given written notice to the contrary to such sheriff gaoler or person in whose custody the opposite party may be but such discharge shall not be a satisfaction of the debt unless made by the authority of the creditor and nothing herein contained shall justify any attorney in giving such order for discharge without the consent of the attorney’s client. † Fieri-facias ˙ Sheriff empowered to seize moneys bank notes etc.—And to pay money or bank notes to execution creditor 56.(1) By virtue of any writ of fieri-facias to be sued out of the Supreme Court after the commencement of this Act or any precept in pursuance thereof the sheriff or other officer having the execution thereof may and shall seize and take any money or bank note or notes of any banking society or company established in Queensland or elsewhere and any cheques bills of exchange promissory notes bonds specialties or other securities for money belonging to the person against whose effects such writ of fieri-facias shall be sued out and may and shall pay or deliver to the party suing out such execution any money or bank notes which shall be so seized or a sufficient part thereof and may and shall hold any such cheques bills of exchange promissory notes bonds specialties or other securities for money

s 57 22 Common Law Process Act 1867 s 60 as a security or securities for the amount by such writ of fieri-facias directed to be levied or so much thereof as shall not have been otherwise levied and raised and may sue in the name of such sheriff or other officer for the recovery of the sum or sums secured thereby if and when the time of payment thereof shall have arrived and the payment to such sheriff or other officer by the party liable on any such cheque bill of exchange promissory note bond specialty or other security with or without suit or the recovery and levying execution against the party so liable shall discharge the party to the extent of such payment or of such recovery and levy in execution as the case may be from the party’s liability on any such cheque bill of exchange promissory note bond specialty or other security and such sheriff and other officer may and shall pay over to the party suing out such writ the money so to be recovered or such part thereof as shall be sufficient to discharge the amount by such writ directed to be levied and if after satisfaction of the amount so to be levied together with sheriff’s poundage and expenses any surplus shall remain in the hands of such sheriff or other officer the same shall be paid to the party against whom such writ shall be so issued. And to sue for amount secured by bills of exchange and other securities (2) However, no such sheriff or other officer shall be bound to sue any party liable upon any such cheque bill of exchange promissory note bond specialty or other security unless the party suing out such execution shall enter into a bond with 2 sufficient sureties for indemnifying him or her from all costs and expenses to be incurred in the prosecution of such action or to which he or she may become liable in consequence thereof the expense of such bond to be deducted out of any money to be recovered in such action. (3) For the purposes of this section— “writ of fieri-facias” shall include a warrant or precept in the nature of such writ sued out of any inferior court in the said State. ˙ Property of debtors liable to be sold in execution 57.(1) It shall be lawful for the sheriff under any writ of execution issued out of the Supreme Court whereby the sheriff is directed to levy any sum of money and whereby the sheriff is directed in the behalf herein mentioned to execute the same as herein mentioned (that is to say) to seize and take and to

s 61 23 Common Law Process Act 1867 s 64 cause to be sold all and singular the lands tenements goods chattels choses in action and other property within the said State of or to which the person named in the said writ against whom any judgment decree or order has been recovered or pronounced is or may be seized possessed or entitled or which the sheriff can either at law or in equity assign or dispose of whether such person be resident or domiciled within or without the said State. (2) However, this Act shall not empower such sheriff to sell any mere claim or right of entry to which such person is or may be entitled. ˙ Sheriff to execute deed of bargain and sale to purchaser 58. In case of any sale by the said sheriff by himself or herself or the sheriff’s deputy of the right title and interest of any person of to or in any lands the said sheriff is hereby required to execute a proper deed of bargain and sale of the right title and interest of such person to the purchaser thereof. ˙ Sales of land by sheriff 59. It shall not hereafter be necessary for any sheriff to make an actual seizure of land under any writ in order to authorise a sale thereof but instead of such seizure the sheriff shall cause notice of the writ and of the intended day and place of sale and the particulars of the property to be published in such manner as the Judges of the Supreme Court shall from time to time direct and the publication of such notice shall be equivalent to an actual levy by the sheriff on the land indicated by such notice. ˙ Deeds of sale by sheriff 60. Every deed of sale heretofore or hereafter executed by any sheriff of the land of a judgment debtor or of the right title and interest of such debtor to and in any land shall be prima facie evidence of the existence of a valid judgment and writ to support a levy by such sheriff on the land and of the fact of a levy having been duly made on such land if stated in the deed or of such notice as aforesaid having been duly published if that fact be so stated and no such deed shall be deemed invalid by reason only of non-registration within 1 calendar month.

s 65 24 Common Law Process Act 1867 s 65 ˙ Sheriff may sell equities of redemption 61.(1) It shall be lawful for the sheriff to whom any writ of fieri-facias issued out of the Supreme Court shall be directed to take in execution and cause to be put up for sale and to be sold under such writ any equity of redemption or other equitable interest of or belonging to the defendant therein named and every such sale (the same being by public auction only and in cases of equity of redemption being previously advertised in the Gazette and in 1 or more newspaper or newspapers at least 1 calendar month before the same shall take place) shall be as valid and effectual to pass all such defendant’s right and title to and interest in such equity or equitable interest as if the same had been conveyed or assigned to the purchaser by such defendant. (2) However, where any such equity or equitable interest shall relate to real estate a deed of bargain and sale thereof or of such defendant’s right and title to and interest therein shall be executed by such sheriff to such purchaser and be by him or her duly registered within 1 calendar month next after sale. † Special commissioners ˙ Chief Justice to appoint commissioners in certain towns 64. It shall be lawful for the Chief Justice of the Supreme Court to appoint from time to time by commission under the Chief Justice’s hand and the seal of the said court some fit persons residing respectively at the towns of Maryborough Gladstone Rockhampton Bowen and Warwick or within 4km of the said places to be commissioners of the said court for the purposes of this Act which commissioners shall at the instance of any plaintiff have power to issue writs of summons and of capias ad respondendum in the said court against any defendant about to depart out of the State from any of the said towns in cases where by law an arrest upon mesne process is now allowed in the said court and every such writ of capias shall (except where hereby otherwise provided) have the same force and effect as an ordinary writ of capias ad respondendum issued out of the said court at Brisbane.

s 66 25 Common Law Process Act 1867 s 69 ˙ No writ of capias to issue unless upon proof that defendant is about to leave the State—Security to be given by the plaintiff 65.(1) No writ of capias shall be issued under section 64 unless proof by affidavit shall be first given to the commissioner issuing the same that the defendant is about to depart out of the State from any of the said towns and of all such other facts and matters which are or may be necessary to be given and established to obtain an order from a Judge of the said court for the issue of an ordinary writ of capias ad respondendum out of the said court at Brisbane nor unless the plaintiff shall first give a bond of 2 sufficient persons (of whom the plaintiff if in the opinion of the said commissioner the plaintiff is of sufficient ability may be one) to the satisfaction of the said commissioner to the defendant in a sum of money to be fixed by said commissioner not being less than double the amount for which the defendant shall be liable to be arrested or held to bail under such writ conditioned to be void on payment to the defendant of all damages costs and charges which may be adjudged to the defendant in any action by the defendant against the plaintiff and the bailiff to whom such writ of capias shall be directed or either of them for or by reason of such writ having been issued or of the defendant being arrested thereunder or of any wrong or damage sustained by the defendant on account thereof or of any wrongful act or omission of such bailiff in or about the execution thereof or otherwise in relation thereto and of all costs charges and expenses which upon any application by the defendant to the said court or any Judge thereof for any rule or order to set aside any such writ or to discharge the defendant from custody thereunder or to cancel any bail bond given thereunder or otherwise in relation or connection with such writ or anything done thereunder may be adjudged or ordered to be paid to the defendant. (2) However, the amount for which such bail bond shall be given shall in no case exceed the sum of $800 and such commissioner shall forthwith transmit such bond to the prothonotary of the said court at Brisbane and such prothonotary shall upon demand deliver such bond to the defendant or anyone applying for the same on the defendant’s behalf. ˙ Memorandum by commissioner on writ of capias 66. It shall not be necessary for any order to be made to warrant the issuing of any writ of capias under section 64 but the commissioner shall by memorandum thereon under the commissioner’s hand certify on whose

s 70 26 Common Law Process Act 1867 s 71 application and on what affidavit or affidavits and when it was issued and the amount for which the defendant is to be arrested or held to bail thereunder in the form or to the effect following— This writ was issued this day of 1860 under the provisions of the Common Law Process Act 1867 on the application of the therein-named A.B. [ naming the plaintiff ] and upon reading the affidavit of [ naming the deponent ] sworn on the day of 1860 [ describing each affidavit if more than 1 ] and the defendant [ naming the defendant ] is to be arrested or held to bail hereunder for or in the sum of $ [ specifying the amount ]. E.F. [ here to be signed by the commissioner ] commissioner. ˙ Writs of capias under the Act to be directed to special bailiff 67. Every writ of capias issued under section 64 shall instead of being directed to the sheriff be directed to some person to be specially named by the plaintiff as bailiff to execute the same and shall be issued under the signature and seal of the commissioner issuing the same. ˙ Copies of writs to be transmitted to Supreme Court in Brisbane 68. Every writ of summons issued under section 64 shall be the commencement of an action in the said court by the plaintiff against the defendant and such commissioner upon issuing any such writ of summons or capias shall forthwith transmit copies thereof and of every endorsement thereon and the original affidavits upon which any such writ of capias was issued by the commissioner to the office of the prothonotary of the said Supreme Court at Brisbane to be there filed and kept. ˙ Fees to commissioner 69. Every such commissioner shall be entitled to receive and retain for the commissioner’s own use for issuing any writ of summons to ground the issuing of a writ of capias under section 64 the sum of 50c and for issuing any writ of capias the sum of $2 and to no other fees or remuneration whatsoever.

s 72 27 Common Law Process Act 1867 s 74 ˙ Bail to be taken by bailiff 70. The bailiff acting under any writ of capias issued under section 64 shall have authority and shall be bound to take bail by bond of the defendant and 2 sureties to himself or herself for the appearance and rendering of the body of the defendant according to the exigency of such writ and the practice of the said court of the same kind and in like manner in all respects as the sheriff is bound to take bail from a defendant arrested under an ordinary writ of capias ad respondendum issued out of the said court at Brisbane directed to himself or herself and such bailiff upon such bail bond being entered into and given to the bailiff shall release the defendant from the bailiff’s custody under such writ and every such bail bond shall be assignable by such bailiff to the plaintiff and such bailiff upon being required so to do shall assign the same to the plaintiff and the plaintiff upon such assignment thereof may sue thereon in like manner in all respects as if it was an ordinary bail bond to the sheriff. ˙ Deposit in lieu of bail 71. Every bailiff acting under any writ of capias issued under section 64 shall be bound to receive from the defendant as a deposit in lieu of bail the amount for which the defendant is to be arrested or held to bail thereunder and the sum of $20 for costs in like manner as the sheriff is bound to do under an ordinary writ of capias ad respondendum issued out of the said court at Brisbane directed to and executed by the bailiff and upon receipt of such deposit such bailiff shall release the defendant from the bailiff’s custody under such writ and shall forthwith pay or cause to be paid to the prothonotary of the said court at Brisbane the money so deposited by such defendant as aforesaid to be held and disposed of by such prothonotary according to law. ˙ Fees to bailiff 72. Every bailiff serving any writ of summons or executing any writ of capias under section 64 shall be entitled to the same fees allowance per kilometre and other remuneration for everything done by the bailiff as such bailiff under the provisions of the said section as the sheriff and the sheriff’s bailiff are or is or may be entitled to for the same or similar acts done by them or either of them in serving or executing or otherwise in relation to any

s 75 28 Common Law Process Act 1867 s 76 ordinary writ of summons or of capias ad respondendum issued out of the said court at Brisbane or taking bail thereunder and to no other payment or remuneration whatever. ˙ Commissioners may issue writs of summons and subpoena to give evidence 73.(1) It shall be lawful for any of the said commissioners residing at any of the towns aforesaid to receive any praecipe for and to issue any writ of summons for the said Supreme Court at Brisbane and also to issue any writ of subpoena to give evidence in any case civil or criminal. (2) However, every such writ of summons shall be returnable in the Supreme Court at Brisbane and that every such praecipe shall as soon as conveniently may be after the issue of the writ to which the same relates be transmitted by the commissioner who received the same to the office of the prothonotary of the Supreme Court. ˙ Judges to make rules and regulations 74. The Judges of the said court or such majority as hereinafter mentioned shall and may from time to time make all such rules and regulations as to fees and costs or otherwise as to the said Judges shall seem proper to be paid to such commissioner for receiving any praecipe for and for issuing any writs of summons or capias ad respondendum or otherwise as they may think necessary or proper for carrying sections 64 to 73 into execution and shall and may repeal alter and amend the same when and as they shall think fit. † New forms ˙ New forms of writs and other proceedings 75. Such new or altered writs and forms of proceedings may be issued entered and taken as may by the Judges of the said court or a majority of them of whom the Chief Justice shall be one be deemed necessary or expedient for giving effect to the provisions hereinbefore contained and in such forms as the Judges of such court or such majority shall from time to

s 77 29 Common Law Process Act 1867 s 77 time think fit to order and such writs and proceedings shall be acted upon and enforced in such and the same manner as writs and proceedings of the said court are now acted upon and enforced or as near thereto as the circumstances of the case will admit and any existing writ or proceeding the form of which shall be in any manner altered in pursuance of this Act shall nevertheless be of the same force and virtue as if no alteration had been made therein except so far as the effect thereof may be varied by this Act. † Powers of the Court ˙ General rules may be made by the Judges 76.(1) It shall be lawful for the Judges of the Supreme Court or a majority of them of whom the Chief Justice shall be one from time to time to make all such general rules and orders for the effectual execution of this Act and of the intention and object hereof and for fixing the costs to be allowed for and in respect of the matters herein contained and the performance thereof and for apportioning the costs of issues and also for altering the number of days by this Act limited for the return of any writ or for the doing of anything by this Act prescribed or authorised to be done and substituting other days for the same as in their judgment shall be necessary or proper. (2) However, nothing herein contained shall be construed to restrain the authority or limit the jurisdiction of the said court or the Judges thereof to make rules or orders or otherwise to regulate and dispose of the business therein. † Commencement and short title ˙ Commencement of Act—Short title 77. This Act shall commence on 31 December 1867 and may be referred to as the Common Law Process Act 1867 3–8 .

30 Common Law Process Act 1867 ¡ SCHEDULE 6 section 46 Form of writ of attachment and seizure of goods Elizabeth the Second, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth To the Sheriff of the State of Queensland the sheriff’s deputies and bailiffs Greeting Whereas A.B. hath given testimony that C.D. is indebted to A.B. in the sum of $ [ or claims damages from C.D. to the amount of $ ] and that this writ should issue in pursuance of the Act in that case made and provided These are therefore to command you that you seize and attach the goods chattels and effects but not the lands of the said C.D. within your bailiwick until C.D. shall have given bail in the sum of ($ treble the amount of debt or damages) and that you further do as we shall hereafter command you in this behalf and that you return this writ immediately on the execution thereof. Witness the Honourable [ name ] Chief Justice of our Supreme Court at Brisbane this day of A.D. 18 . Memorandum to be endorsed on the writ This writ extends only to the goods chattels and effects of the said C.D.

31 Common Law Process Act 1867 ¡ SCHEDULE 7 section 46 Entry of judgment under section 46 In the Supreme Court of Queensland On the day of A.D. 18 . On the day and year above written a writ to our Lady the Queen issued forth of this court in these words that is to say— Elizabeth the Second, by the Grace of God etc. [ here copy the writ ] and the said C.D. has not given bail and the plaintiff has proved to the satisfaction of the registrar as appears by the depositions and certificate filed herein that the said C.D. is indebted to the plaintiff [ or that the plaintiff has sustained damages by C.D.] to the amount of $ Therefore it is considered that the said A.B. have execution for his or her said debt [ or damages] and costs forthwith. Let execution issue for $ the debt [ or damages] and costs.

32 Common Law Process Act 1867 † ENDNOTES ´ 1 Index to Endnotes Page 2 Date to which amendments incorporated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 3 List of legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 4 List of annotations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 5 Table of changed names and titles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 6 Table of obsolete and redundant provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 7 Table of renumbered provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 8 Table of comparative legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 ´ 2 Date to which amendments incorporated This is the reprint date mentioned in the Reprints Act 1992, section 5(c). Accordingly, this reprint includes all amendments that commenced operation on or before 19 August 1994. Future amendments of the Common Law Process Act 1867 may be made in accordance with this reprint under the Reprints Act 1992, section 49. ´ 3 List of legislation Common Law Process Act 1867 31 Vic No. 4 date of assent 26 November 1867 commenced 31 December 1867 (see s 77) as amended by— Statute 36 Vic No. 1 date of assent 26 November 1867 commenced on date of assent Criminal Code Act 1899 63 Vic No. 9 s 3(2) Sch 3 date of assent 28 November 1899 commenced on date of assent Acts Citation Act 1903 3 Edw 7 No. 10 s 10 Sch 3 date of assent 13 November 1903 commenced on date of assent

33 Common Law Process Act 1867 Statute Law Revision Act 1908 8 Edw 7 No. 18 s 2 Sch 1 date of assent 23 December 1908 commenced on date of assent Australian Consular Officers’ Notarial Powers and Evidence Act 1946 10 Geo 6 No. 43 s 5(ii) date of assent 28 November 1946 commenced 28 November 1946 (see s 1(3)) Evidence and Discovery Acts and Other Acts Amendment Act 1960 9 Eliz 2 No. 22 Pt 3 date of assent 14 November 1960 commenced on date of assent Metric Conversion Act 1972 No. 31 Pt 2 Sch 1 date of assent 21 December 1972 commenced 1 July 1973 (proc pubd Gaz 16 June 1973 p 1460) ´ 4 List of annotations Key to abbreviations in list of annotations amd Ch cl def Div hdg ins om prec pres prev (prev) prov Pt RA renum Sdiv sub = = = = = = = = = = = = = = = = = = amended Chapter clause definition Division heading inserted omitted preceding present previous previously provision Part Reprints Act 1992 renumbered Subdivision substituted Provisions not included in reprint, or amended by amendments not included in reprint, are underlined Note— references to ‘Pring’s Statutes’ and to Colonial Acts were omitted from the sectional notes throughout this Act by Act of 1903 3 Edw 7 No. 10 s 10 Sch 3 Preamble om 1908 8 Edw 7 No. 18 s 2 Sch 1 Personal actions when defendant resides within the jurisdiction to be commenced by writ of summons in form No. 1 of the schedule s 1 om 1908 8 Edw 7 No. 18 s 2 Sch 1

34 Common Law Process Act 1867 No form or cause of action to be mentioned in writ s 2 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Writ to state names of all defendants and for only one action s 3 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Writ to be dated on day of issuing and tested in name of Chief Justice or senior judge s 4 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Writ to be indorsed with name and abode of attorney or a memorandum that writ has been sued by plaintiff in person s 5 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Indorsement of debt and costs on writ and copy of writ for a debt with notice that proceedings will be stayed on payment within days s 6 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Attorney on demand to declare whether writ issued by his authority and to declare name and abode of his client if ordered s 7 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Concurrent writs may be issued s 8 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Writs for service within and without jurisdiction may be concurrent and vice versa s 9 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Renewal of writs of summons to save the statute of limitation and for other purposes s 10 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Production of renewed writ evidence of commencement of action s 11 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Renewal of writs issued before this Act s 12 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Proceedings where personal service cannot be effected s 13 om 1908 8 Edw 7 No. 18 s 2 Sch 1 As to service of writ on corporation s 14 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Indorsement of service to be made s 15 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Special indorsement of the particulars of debts or liquidated demands may be made on the writ s 16 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Final judgment upon writ specially indorsed in default of appearance s 17 om 1908 8 Edw 7 No. 18 s 2 Sch 1

35 Common Law Process Act 1867 Judgment for non-appearance where the writ is not indorsed in the special form s 18 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Proceedings where only some of the defendants appear to a writ specially indorsed s 19 om 1908 8 Edw 7 No. 18 s 2 Sch 1 As to actions against British subjects residing out of the jurisdiction of Supreme Court s 20 om 1908 8 Edw 7 No. 18 s 2 Sch 1 As to actions against foreigners residing out of the jurisdiction of Supreme Court s 21 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Proceedings mentioned in writ or notice may be had and taken s 22 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Affidavits in certain cases may be sworn before a consul s 24 amd Statute 36 Vic No. 1 s 1; 1899 63 Vic No. 9 s 3(2) Sch 3; 1946 10 Geo 6 No. 43 s 5(ii); 1960 9 Eliz 2 No. 22 s 7 Omission to insert or indorse matters in or on writ not to nullify it s 25 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Substitution by mistake or inadvertence of one form of writ for another may be amended by judge with or without costs s 26 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Similar provision where defendants not sued as copartners s 44 amd 1903 3 Edw 7 No. 10 s 10 Sch 3 Writs of execution to remain in force for one year and to be renewed if necessary s 62 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Production of renewed writ evidence of renewal s 63 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Chief Justice to appoint commissioners in certain towns s 64 amd 1972 No. 31 s 6 Sch 1 Fees to bailiff s 72 amd 1972 No. 31 s 6 Sch 1 SCHEDULES REFERRED TO IN THE FOREGOING ACT NUMBER 1—SCHEDULE OF 17 VIC NO. 21 om 1908 8 Edw 7 No. 18 s 2 Sch 1 NUMBER 2—SCHEDULE OF 17 VIC NO. 21 om 1908 8 Edw 7 No. 18 s 2 Sch 1 NUMBER 3—SCHEDULE OF 17 VIC NO. 21 om 1908 8 Edw 7 No. 18 s 2 Sch 1

36 Common Law Process Act 1867 NUMBER 4—SCHEDULE OF 17 VIC NO. 21 om 1908 8 Edw 7 No. 18 s 2 Sch 1 NUMBER 5—SCHEDULE OF 17 VIC NO. 21 om 1908 8 Edw 7 No. 18 s 2 Sch 1 ´ 5 Table of changed names and titles TABLE OF CHANGED NAMES AND TITLES under the Reprints Act 1992 ss 23 and 23A Old New Reference provision colony (or its dependencies) Her Majesty (by a particular style or title) State Her Majesty (by Her current style and titles) see Commonwealth Constitution Acts Interpretation Act 1954 s 52(3)(b) ´ 6 Table of obsolete and redundant provisions TABLE OF OBSOLETE AND REDUNDANT PROVISIONS under the Reprints Act 1992 s 39 Omitted provision Provision making omitted provision obsolete/redundant references to Commonwealth references to Queensland implied Acts Interpretation Act 1954 s 36 def “Commonwealth” Acts Interpretation Act 1954 s 35 ´ 7 Table of renumbered provisions Previous TABLE OF RENUMBERED PROVISIONS under the Reprints Act 1992 s 43 Renumbered as 27, 1st sentence 27, 1st proviso 27, 2nd proviso 29, 1st sentence 27(1) 27(2) 27(3) 29(1)

37 Common Law Process Act 1867 29, proviso 30, 1st sentence 30, proviso 32, 1st sentence 32, 1st proviso 32, 2nd proviso 33, 1st sentence 33, proviso 36, 1st sentence 36, proviso 38, 1st sentence 38, proviso 44, 1st sentence 44, proviso 46, 1st sentence 46, 1st proviso 46, 2nd proviso 46, 3rd proviso 51, 1st sentence 51, proviso 52, 1st sentence 52, 1st proviso 52, 2nd proviso 56, 1st sentence 56, proviso 56, proviso, after ‘such action and’ 57, 1st sentence 57, proviso 61, 1st sentence 61, proviso 65, 1st sentence 65, proviso 73, 1st sentence 73, proviso 76, 1st sentence 76, proviso 29(2) 30(1) 30(2) 32(1) 32(2) 32(3) 33(1) 33(2) 36(1) 36(2) 38(1) 38(2) 44(1) 44(2) 46(1) 46(2) 46(3) 46(4) 51(1) 51(2) 52(1) 52(2) 52(3) 56(1) 56(2) 56(3) 57(1) 57(2) 61(1) 61(2) 65(1) 65(2) 73(1) 73(2) 76(1) 76(2) ´ 8 Table of comparative legislation s 24 15 & 16 Vic c. 76 s 23 s 47 1 & 2 Vic c. 110 s 1 s 48 1 & 2 Vic c. 110 s 3 s 49 1 & 2 Vic c. 110 s 4 s 50 1 & 2 Vic c. 110 s 5 s 51 1 & 2 Vic c. 110 s 6

38 Common Law Process Act 1867 s 54 15 & 16 Vic c. 76 s 127 s 55 15 & 16 Vic c. 76 s 126 s 56 1 & 2 Vic c. 110 s 12 s 75 15 & 16 Vic c. 76 s 224 s 76 15 & 16 Vic c. 76 s 223