Common Law Practice Act 1867

Queensland COMMON LAW PRACTICE ACT 1867 Reprinted as in force on 24 June 1994 (includes amendments up to Act No. 87 of 1981) 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 24 June 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 gender neutral office names (s 25) • correct spelling and use different spelling consistent with current legislative drafting practice (s 26) • use standard punctuation consistent with current legislative drafting practice (s 27) • use conjunctives and disjunctives consistent with current legislative drafting practice (s 28) • 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 unnecessary referential words (s 41) • omit historical notes (s 42) • omit the enacting words (s 42A) • number and renumber 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 renumbered provisions • Table of comparative legislation.

Queensland COMMON LAW PRACTICE ACT 1867 TABLE OF PROVISIONS Section Page Interpretation 1 Interpretation clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 2 Construction of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Abolition of certain defences writs and actions—substituted proceedings 3 Wager of law abolished . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Assessment of damages 4 Loss of earnings and future earnings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 5 Compensation for future loss to be discounted . . . . . . . . . . . . . . . . . . . . . . . 6 Actions against and by executors 12 Liability for death caused wrongfully . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 13 Actions how brought . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 14 Limitation of actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 15 Particulars of demand . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 15A Where no action brought within 6 months by executor, then action may be brought by persons beneficially interested . . . . . . . . . . . . . . . 8 15B Payment into court in 1 sum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 15C Exclusion of certain payments in assessment of damages . . . . . . . . . . . . . . . 8 Specific delivery of chattels 16 In action for recovery of specific goods sheriff after verdict may seize such goods. Further procedure if such goods can not be found or delivery of them be refused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 17 Specific delivery of chattels . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Execution on decrees and orders 19 Decrees and orders of courts of equity etc. to have effect of judgments . . . 10

2 Common Law Practice Act 1867 Execution on foreign judgment 20 Memorial of judgment etc. under seal of Supreme Court of any other Australasian colony filed in Supreme Court at Brisbane shall be a record thereof and execution may issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 21 Particulars of memorial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 22 Mode of obtaining execution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Description of parties 23 Initials of names may be used in some cases . . . . . . . . . . . . . . . . . . . . . . . . 12 24 Misnomer not to be pleaded in abatement . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Style of defendant 25 Co-partnerships all of whose members are not known . . . . . . . . . . . . . . . . . 13 26 Proviso . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Refusal to make affidavit 40 Examination of person who refuses to make an affidavit . . . . . . . . . . . . . . . 14 41 Proceedings upon order for examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 New trial 46 No new trial for ruling as to stamp . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Execution 48 Securities not realised to be relinquished if the person be taken in execution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Distringas 49 Stock and shares in public companies belonging to the debtor and standing in the debtor’s own name to be charged by order of a Judge . 15 50 Order of Judge to be made in the first instance ex parte and on notice to the bank or company etc. to operate as a distringas . . . . . . . . . . . 16 Garnishment 59 Judge may refuse to interfere in proceeding to attach debts . . . . . . . . . . . . 17 View 62 View by rule without writ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Inquiry before prothonotary 63 Inquiry of damages may be directed to take place before the prothonotary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Writs of trial and inquiry 64 No rule to compute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

3 Common Law Practice Act 1867 66 Proceedings on return of writs of inquiry or trial . . . . . . . . . . . . . . . . . . . . . . 18 69 Commissioner’s notes of evidence etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Precepts 70 Rule or order for summoning jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Practice at the trial 72 Interest up to judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 73 Interest on debt under judgment or order . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 74 Persons may be examined without a subpoena . . . . . . . . . . . . . . . . . . . . . . . 20 75 Witnesses failing to attend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Trial without jury 78 Judge may by consent try questions of fact . . . . . . . . . . . . . . . . . . . . . . . . . . 21 79 Power to Judge to direct arbitration at time of trial when issues of fact left to the Judge’s decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Amendment 80 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 81 In cases where a variance shall appear between written or printed evidence and the record the court may order the record to be amended . . 22 82 Amendments to be made in the record in certain cases . . . . . . . . . . . . . . . . 23 83 Amendments at trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Warrants of attorney 84 Warrants of attorney and cognovit actionem to be executed in the presence of an attorney on behalf of the person . . . . . . . . . . . . . . . . . . . 25 85 Warrant etc. not formally executed invalid . . . . . . . . . . . . . . . . . . . . . . . . . . 25 86 Warrants of attorney in personal actions to be filed within 21 days . . . . . . 25 87 In what case warrant of attorney deemed fraudulent . . . . . . . . . . . . . . . . . . 25 Cognovit 88 Cognovit actionem to be filed in like manner or void against creditors . . . 26 Warrants and cognovits 89 Defeasance of warrant of attorney etc. to be written on same paper . . . . . . 26 90 Officer of Court to keep a book containing list and particulars of each warrant of attorney and cognovit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 91 Fee for filing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 92 Office copies to be had on paying . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 93 Satisfaction entered on warrants of attorney and cognovits . . . . . . . . . . . . . 28

4 Common Law Practice Act 1867 Powers of the Court 94 General rules may be made by the Judges . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Commencement and short title 95 Commencement of Act. Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 ENDNOTES 1 Index to Endnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 2 Date to which amendments incorporated . . . . . . . . . . . . . . . . . . . . . 30 3 List of legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 4 List of annotations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 5 Table of changed names and titles . . . . . . . . . . . . . . . . . . . . . . . . . . 36 6 Table of corrected minor errors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 7 Table of renumbered provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 8 Table of comparative legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

s1 5 s2 Common Law Practice Act 1867 COMMON LAW PRACTICE ACT 1867 [as amended by all amendments that commenced on or before 24 June 1994 2 ] An Act to consolidate and amend the laws relating to practice at common law † Interpretation ˙ Interpretation clause 1. For all the purposes of this Act the words “Court” and “Judge” shall be construed to mean the Supreme Court or a Judge thereof and the word “prothonotary” shall be construed to apply to the registrar or any master in equity or other proper officer of the Supreme Court and vice versa unless in any of the cases aforesaid there be something in the subject or context repugnant to such construction. ˙ Construction of Act 2. The following words and expressions are intended to have the meanings hereby assigned to them respectively so far as such meanings are not excluded by the context or by the nature of the subject matter that is to say the word “parent” shall include father and mother and grandfather and grandmother and stepfather and stepmother and any person standing in loco parentis to another and the word “child” shall include son and daughter and grandson and grand daughter and stepson and stepdaughter and any person to whom another stands in loco parentis .

s3 6 s5 Common Law Practice Act 1867 † Abolition of certain defences writs and actions—substituted proceedings ˙ Wager of law abolished 3. No wager of law shall be allowed. † Assessment of damages ˙ Loss of earnings and future earnings 4. Where in relation to a claim for damages for deprivation or impairment of earning capacity, for wrongful dismissal or for other personal injury it becomes material to assess such damages having regard to loss of earnings or of future probable earnings there shall be taken into account in reduction of the sum assessed such amount as is reasonably considered to be the amount that would have been payable as income tax by reason of the receipt of such earnings by the person who has suffered loss of the same, had the person received them. ˙ Compensation for future loss to be discounted 5.(1) Where an award of damages is to include compensation, assessed as a lump sum, in respect of damage that is referable to deprivation or impairment of earning capacity or to a liability to incur expenditure in the future the amount of that compensation shall be the present value of that sum calculated in accordance with actuarial tables at a discount rate fixed by the Governor in Council by order in council as at the time of making the award or, in the absence of a rate so fixed, at a discount rate of 5%. (2) In fixing a discount rate for the purposes of subsection (1) the Governor in Council— (a) may fix a positive, zero or negative rate; and (b) shall have regard to the prevailing rates of inflation, the prevailing interest yields on fixed term investment, the prevailing yields on investment in equities and such other economic factors as in the Governor in Council’s opinion are relevant to the fixing of an appropriate discount rate.

s 12 7 s 15 Common Law Practice Act 1867 † Actions against and by executors ˙ Liability for death caused wrongfully 12. Whensoever the death of a person shall be caused by a wrongful act neglect or default and the act neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages notwithstanding the death of the person injured and although the death shall have been caused under such circumstances as amount in law to crime. ˙ Actions how brought 13. Every such action shall be for the benefit of the wife husband parent and child of the person whose death shall have been so caused and shall be brought by and in the name of the executor or administrator of the person deceased and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought and the amount so recovered after deducting the costs not recovered from the defendant shall be divided amongst the before mentioned parties in such shares as the jury by their verdict shall find and direct. ˙ Limitation of actions 14. Provided that not more than 1 action shall lie for and in respect of the same subject matter of complaint. ˙ Particulars of demand 15. In every such action the plaintiff on the record shall be required together with the declaration to deliver to the defendant or the defendant’s attorney a full particular of the person or persons for whom and on whose behalf such action shall be brought and of the nature of the claim in respect of which damages shall be sought to be recovered.

s 15A 8 Common Law Practice Act 1867 s 15C ˙ Where no action brought within 6 months by executor, then action may be brought by persons beneficially interested 15A.(1) If it happens in any case intended and provided for by sections 12 to 15 hereof that there is no personal representative of such deceased person, or if, although there is such personal representative, no such action is brought by and in the name of the personal representative within 6 months after the death of such deceased person, then such action may be brought by and in the name or names of all or any of the persons (if more than 1) for whose benefit such action would have been, if it had been brought by and in the name of the personal representative. (2) Every such action so brought shall be for the benefit of the same person or persons, and shall be subject to the same rules and procedure, as nearly as may be, as if it were brought by and in the name of the personal representative. (3) In this section— “personal representative” means the executor or administrator of the deceased person. ˙ Payment into court in 1 sum 15B.(1) It shall be sufficient, if the defendant is advised to pay money into court, that the defendant pays it as a compensation in 1 sum to all persons entitled under sections 12 to 15A for the defendant’s wrongful act, neglect, or default, without specifying the shares into which it is to be divided by the jury. (2) If the said sum is not accepted, and an issue is raised by the plaintiff as to its sufficiency, and the jury think the same sufficient, the defendant shall be entitled to the verdict upon that issue. ˙ Exclusion of certain payments in assessment of damages 15C. In assessing damages in respect of a person’s death in any such action, whether commenced before or after the commencement of the Common Law Practice Act Amendment Act 1972 , there shall not be taken into account— (a) a sum paid or payable on the death under any contract of

s 16 9 s 16 Common Law Practice Act 1867 assurance or insurance; or (b) a sum paid or payable on the death under a contract made with a friendly or other benefit society, or association or trade union that is not a contract of insurance or assurance; or (c) a sum paid or payable on the death out of any superannuation, provident or like fund; or (d) a sum paid or payable on the death by way of pension, benefit or allowance under any law of the Commonwealth or of any State or Territory of the Commonwealth or of any other country; or (e) a gratuity in whatever form received or receivable on the death; whether any such sum or gratuity is paid or payable to or is received or receivable by the estate of the deceased person or by any person for whose benefit the action is brought. † Specific delivery of chattels ˙ In action for recovery of specific goods sheriff after verdict may seize such goods. Further procedure if such goods can not be found or delivery of them be refused 16. When the action shall have been brought to recover specific goods and the plaintiff shall have claimed a return of such goods or their value and damages for their detention and shall have recovered a verdict and judgment in such action it shall be lawful for the sheriff if so required by the plaintiff to demand and seize the specific goods claimed if they can be found by the sheriff and to deliver them to the plaintiff and if the sheriff shall not find and seize the said goods it shall be lawful for the Court or a Judge if the said Court or Judge shall see fit on the application of the plaintiff to order the actual return thereof and to enforce such order by process of attachment and if such application be refused or if such order be not obeyed the plaintiff may by leave of a Judge procure a separate writ of fieri-facias to be issued for the value of the goods without prejudice to the plaintiff’s right to issue execution either before or after or concurrently therewith for the plaintiff’s costs of suit and the damages awarded for the detention of the goods.

s 17 10 s 20 Common Law Practice Act 1867 ˙ Specific delivery of chattels 17.(1) The Court or a Judge shall have power if they or the Judge see fit to do so upon the application of the plaintiff in any action for the detention of any chattel to order that execution shall issue for the return of the chattel detained without giving the defendant the option of retaining such chattel upon paying the value assessed and if the said chattel can not be found and unless the Court or a Judge shall otherwise order the sheriff shall distrain the defendant by all the defendant’s lands and chattels in the said sheriff’s bailiwick till the defendant render such chattel or at the option of the plaintiff that the defendant cause to be made of the defendant’s goods the assessed value of such chattel. (2) However, the plaintiff shall either by the same or a separate writ of execution be entitled to have made of the defendant’s goods the damages costs and interest in such action. (3) Also, the plaintiff may proceed under section 16 anything this section contained notwithstanding. † Execution on decrees and orders ˙ Decrees and orders of courts of equity etc. to have effect of judgments 19. All remedies hereby given to judgment creditors are likewise given to any persons to whom any moneys or costs charges or expenses are by any decree or order in equity or any rule or order at common law by the Supreme Court or any decree rule or order of the said court in its ecclesiastical or matrimonial jurisdiction respectively directed to be paid. † Execution on foreign judgment ˙ Memorial of judgment etc. under seal of Supreme Court of any other Australasian colony filed in Supreme Court at Brisbane shall be a record thereof and execution may issue 20. It shall be lawful for any person in whose favour any judgment decree rule or order whereby any sum of money is made payable shall have been obtained in the Supreme Court of any of Her Majesty’s Australasian

s 21 11 s 22 Common Law Practice Act 1867 colonies (including the islands and colonies of New Zealand) to cause a memorial of the same containing the particulars hereinafter mentioned and authenticated by the seal of the court wherein such judgment decree rule or order was obtained to be filed in the office of the Supreme Court at Brisbane and such memorial being so filed shall thenceforth be a record of such judgment decree rule or order and execution may issue thereon as hereinafter provided. ˙ Particulars of memorial 21. Every such memorial shall be on parchment and signed by the party in whose favour such judgment decree rule or order was obtained or the party’s attorney and shall contain the following particulars all of which shall be fairly written without interlineations or erasures and (with the exception of dates) in words at length (that is to say) the names and additions of the parties the form or nature of the action or suit or other proceeding and when commenced the date of the signing or entering up of the judgment or of passing the decree or of making the rule or order and the amount recovered or the decree pronounced or rule or order made and if there was a trial the date of such trial and the amount of verdict given. ˙ Mode of obtaining execution 22.(1) It shall be lawful for any Judge of the Supreme Court of this colony upon the application of the person in whose favour such judgment decree rule or order was obtained or the person’s attorney to issue a summons calling upon the person against whom such judgment decree rule or order was obtained to show cause within such time after personal or other service of the summons as such Judge shall direct why execution should not issue upon such judgment decree rule or order and such summons shall give notice that in default of appearance execution may issue accordingly. (2) If the person so summoned does not appear or does not show sufficient cause against such summons it shall be lawful for any Judge of the Supreme Court or the said court on due proof of such service as aforesaid to order execution to issue as upon a judgment decree rule or order of the Supreme Court of this colony subject to such terms and conditions (if any) as to such Judge or Court may seem fit.

s 23 12 s 24 Common Law Practice Act 1867 (3) Thereupon and subject thereto the person entitled to such execution shall have and be entitled to all such process and to all such rights and remedies for the enforcement thereof and the person against whom such execution is ordered shall in like manner be entitled to all such protective rights and advantages as they would respectively have been entitled to had such judgment decree rule or order been obtained in the Supreme Court of this colony and all such proceedings may be had or taken for the revival of such judgment decree rule or order or the enforcement thereof by and against persons not parties to such judgment decree rule or order as may be had for the like purposes upon any judgment decree rule or order of the Supreme Court of this colony. † Description of parties ˙ Initials of names may be used in some cases 23. In all actions upon bills of exchange or promissory notes or other written instruments any of the parties to which are designated by the initial letter or letters or some contraction of the christian or first name or names it shall be sufficient in every affidavit to hold to bail and in the process or declaration to designate such persons by the same initial letter or letters or contraction of the christian or first name or names instead of stating the christian or first name or names in full. ˙ Misnomer not to be pleaded in abatement 24. No plea in abatement for a misnomer shall be allowed in any personal action but in all cases in which a misnomer would but for this Act have been by law pleadable in abatement in such actions the defendant shall be at liberty to cause the declaration to be amended at the costs of the plaintiff by inserting the right name upon a Judge’s summons founded on an affidavit of the right name and in case such summons shall be discharged the costs of such application shall be paid by the party applying if the Judge shall think fit.

s 25 13 s 26 Common Law Practice Act 1867 † Style of defendant ˙ Co-partnerships all of whose members are not known 25.(1) And whereas in some cases business is carried on in the colony by persons in co-partnership or by 1 individual or more assuming the style of a co-partnership or acting as agent or agents for a co-partnership and in some of those cases the names of the actual members of such co-partnership or of some of them are or may be unknown in order to prevent any failure of justice in such cases be it enacted. (2) That every such co-partnership and the several members thereof or the persons or person having carried on business under the style of any such co-partnership may be sued in any action at law in the name or names of any 1 or more of the members of such co-partnership on behalf of all the members composing the same or in the name or names of any such agent or agents for and on behalf of such co-partnership so as that in all cases wherein it would have been necessary if this Act had not been passed to mention the names of all the members composing any such co-partnership it shall be sufficient to mention only the name or names of such 1 or more member or members or of such agent or agents on behalf of such co-partnership. (3) Every judgment obtained in any such action shall have the same effect and operation upon the property both real and personal of such co-partnership and also upon the property and persons of the several members thereof when discovered whether such property be joint or separate as if every member of such co-partnership had been actually and in fact a defendant in the action. ˙ Proviso 26.(1) In every summons and other writ issued and declaration or other pleading filed on behalf of the plaintiff in any action brought under the provisions of section 25 the style or firm of the co-partnership shall be specified and it shall distinctly appear that the defendant sued is so sued either as a member or as agent for and on behalf of a co-partnership (2) However, that no agent sued on behalf of a co-partnership shall by

s 40 14 s 46 Common Law Practice Act 1867 reason only of the agent being so sued be liable in person or in property to any judgment obtained in such action. † Refusal to make affidavit ˙ Examination of person who refuses to make an affidavit 40. Any party to any civil proceeding or motion for a criminal information in the Supreme Court requiring the affidavit of a person who refuses to make an affidavit may apply by summons for an order to such person to appear and be examined upon oath before a Judge or any commissioner for taking affidavits to whom it may be most convenient to refer such examination as to the matters concerning which the person has refused to make an affidavit and a Judge may if the Judge thinks fit make such order for the attendance of such person before the person therein appointed to take such examination for the purpose of being examined as aforesaid and for the production of any writings or documents to be mentioned in such order and may therein impose such terms as to such examination and costs of the application and proceedings thereon as the Judge shall think fit. ˙ Proceedings upon order for examination 41. Such order shall be proceeded upon in like manner as an order for a commission made under the rules of the Supreme Court for the time being and the examination thereon shall be conducted and the depositions taken down and returned as nearly as may be in the mode used on viva voce examinations under such a commission. † New trial ˙ No new trial for ruling as to stamp 46. No new trial shall be granted by reason of the ruling of any Judge that the stamp upon any document is sufficient or that the document does not require a stamp.

s 50 15 s 50 Common Law Practice Act 1867 † Execution ˙ Securities not realised to be relinquished if the person be taken in execution 48. If any judgment creditor who under the powers of section 49 or 50 of this Act or of section 56 of the Common Law Process Act 1867 shall have obtained any such charge or be entitled to the benefit of any security whatsoever shall afterwards and before the property so charged or secured shall have been converted into money or realised and the produce thereof applied towards payment of the judgment debt cause the person of the judgment debtor to be taken or charged in execution upon such judgment then and in such case such judgment creditor shall be deemed and taken to have relinquished all right and title to the benefit of such charge or security and shall forfeit the same accordingly. † Distringas ˙ Stock and shares in public companies belonging to the debtor and standing in the debtor’s own name to be charged by order of a Judge 49.(1) If any person against whom any judgment shall have been entered up in the Supreme Court shall have any annuities funds stock or shares of or in any public company (whether incorporated or not) or any deposit in any bank in Queensland or its dependencies standing in the person’s name or in the person’s own right or in the name of any person in trust for the person or shall have or be entitled to any equity of redemption or other equitable interest which at law can not be taken in execution it shall be lawful for a Judge of the said court on the application of any judgment creditor to order that such annuities funds stock shares or deposits or any such equity of redemption or equitable interest or such of them or such part thereof respectively as the Judge shall think fit shall stand charged with the payment of the amount for which judgment shall have been so recovered and interest thereon and such order shall entitle the judgment creditor to all such remedies as the judgment creditor would have been entitled to if such charge had been made in the judgment creditor’s favour by the judgment debtor. (2) However, no proceedings shall be taken to have the benefit of such

s 59 16 s 63 Common Law Practice Act 1867 charge until after the expiration of 3 calendar months from the date of such order. ˙ Order of Judge to be made in the first instance ex parte and on notice to the bank or company etc. to operate as a distringas 50.(1) And in order to prevent any person against whom judgment shall have been obtained from transferring receiving or disposing of any annuities funds stock shares or deposits hereby authorised to be charged for the benefit of the judgment creditor under an order of a Judge as aforesaid every order of a Judge charging any annuities funds stock or shares in any such public company or any deposit in any such bank under this Act may be made in the first instance ex parte and without any notice to the judgment debtor and shall be an order to show cause only and such order if any annuities funds stock shares or deposits standing in the name of the judgment debtor in the judgment debtor’s own right or in the name of any person in trust for the person is to be affected by such order shall restrain such public company and the accountant and cashier of every such bank from permitting the transfer or disposal thereof and if after notice of such order to the person or persons to be restrained thereby or in case of corporations to any authorised agent of such corporation and before the same order shall be discharged or made absolute such corporation or person or persons shall permit any such transfer or disposal to be made then and in such case the corporation or person or persons so permitting such transfer or disposal shall be liable to the judgment creditor for the value or amount of the property so charged or so transferred or disposed of or such part thereof as may be sufficient to satisfy the judgment and no disposition of the judgment debtor in the meantime shall be valid or effectual as against the judgment creditor and further unless the judgment debtor shall within a time to be mentioned in such order show to a Judge of the said court sufficient cause to the contrary the said order shall after proof of notice thereof to the judgment debtor the judgment debtor’s attorney or agent be made absolute. (2) However, any such Judge shall upon application of the judgment debtor or any person interested have full power to discharge or vary such order and to award such costs upon such application as the Judge may think fit. † Garnishment

s 64 17 s 69 Common Law Practice Act 1867 ˙ Judge may refuse to interfere in proceeding to attach debts 59. In proceedings to obtain an attachment of debts under this Act the Judge may in the Judge’s discretion refuse to interfere where from the smallness of the amount to be recovered or of the debt sought to be attached or otherwise the remedy sought would be worthless or vexatious. † View ˙ View by rule without writ 62. A writ of view shall not be necessary or used but whether the view is to be had by a common or special jury it shall be sufficient to obtain a rule of the Court or Judge’s order directing a view to be had and the sheriff upon request shall deliver to either party the names of the viewers and shall also return their names to the associate for the purpose of their being called as jurors upon the trial. † Inquiry before prothonotary ˙ Inquiry of damages may be directed to take place before the prothonotary 63.(1) In actions in which it shall appear to the Court or a Judge that the amount of damages sought to be recovered by the plaintiff is substantially a matter of calculation it shall not be necessary to issue a writ of inquiry but the Court or a Judge may direct that the amount for which final judgment is to be signed shall be ascertained by the prothonotary of the said court and the attendance of witnesses and the production of documents before such prothonotary may be compelled by subpoena in the same manner as before a jury upon a writ of inquiry and it shall be lawful for such prothonotary to receive affidavits and depositions as evidence upon the inquiry and to adjourn the inquiry from time to time as occasion may require. (2) The prothonotary shall endorse upon the rule or order for referring the amount of damages to the prothonotary the amount found by the prothonotary and shall deliver the rule or order with such endorsement to the plaintiff and such and the like proceedings may thereupon be had as to

s 70 18 s 72 Common Law Practice Act 1867 taxation of costs signing judgment and otherwise as upon the finding of a jury upon a writ of inquiry. † Writs of trial and inquiry ˙ No rule to compute 64. No rule to compute shall be necessary or used. ˙ Proceedings on return of writs of inquiry or trial 66. On the return of every writ of inquiry or writ of trial issued or to be issued in any of the cases contemplated by this Act for the more effectual administration of justice in that behalf the party succeeding may tax the party’s costs and sign judgment and issue execution forthwith unless the sheriff commissioner Judge or chairperson to whom such writ shall have been directed shall certify to the Court that in his or her opinion an opportunity should be afforded to the unsuccessful party to move for a new trial or assessment (as the case may be) or unless a Judge shall stay judgment or execution therein. ˙ Commissioner’s notes of evidence etc. 69.(1) Every such person shall together with the writ and the endorsement of the verdict thereon return to the Supreme Court the person’s notes of the evidence on such inquiry or trial and it shall be lawful for the said court or any Judge thereof to permit any amendment of the said endorsement in accordance with such notes and not being repugnant to the verdict but so as to give effect to the same. (2) However, where justice shall appear to have been done by such verdict on the merits the same shall not in any case be set aside or impeached for any mere omission to find any issue or for any technical defect or error whatsoever. (3) Also, where any application shall be made to the Court or a Judge either to set aside such verdict or to amend the endorsement thereof on the writ such reasonable terms may be imposed on the parties and such order made respecting the costs as to such Court or Judge shall seem meet.

s 73 19 s 75 Common Law Practice Act 1867 † Precepts ˙ Rule or order for summoning jury 70. The Court or any Judge thereof may make all such rules or orders upon the sheriff or other person as may be necessary to procure the attendance of a special or common jury for the trial of any cause or matter depending in such court at such time and place and in such manner as they or the Judge may think fit. † Practice at the trial ˙ Interest up to judgment 72.(1) In any proceedings in respect of a cause of action that arises after the commencement of the Common Law Practice Act Amendment Act 1972 in a court of record for the recovery of money (including proceedings for debt, damages or the value of goods) the court may order that there shall be included in the sum for which judgment is given interest at such rate as it thinks fit on the whole or any part of that sum for the whole or any part of the period between the date when the cause of action arose and the date of the judgment. (2) The powers conferred on a court of record by subsection (1) may be exercised by an arbitrator or umpire. (3) This section— (a) does not authorise the giving of interest upon interest; (b) does not apply in respect of any debt on which interest is payable as of right whether by virtue of an agreement or otherwise; (c) does not affect damages recoverable for the dishonour of a bill of exchange. ˙ Interest on debt under judgment or order 73.(1) Where judgment is given or an order is made by a court of record for the payment of money in a cause of action that arose after the commencement of the Common Law Practice Act Amendment Act 1972 ,

s 78 20 s 78 Common Law Practice Act 1867 interest shall, unless the court otherwise orders, be payable at the rate prescribed from time to time by order in council and until so prescribed at the rate of 8% per annum from the date of the judgment or order on so much of the money as is from time to time unpaid. (2) Notwithstanding anything contained in subsection (1)— (a) where the court directs the entry of judgment for damages and the damages are paid within 21 days after the date of the direction, interest on the damages shall not be payable unless the court otherwise orders; (b) where the court makes an order for the payment of costs and the costs are paid within 21 days after the ascertainment thereof by taxation or otherwise, interest on the costs shall not be payable unless the court otherwise orders. ˙ Persons may be examined without a subpoena 74. Any person present at any trial or other proceeding wherein the person might have been compellable to give evidence and produce documents by virtue of a subpoena or other summons or order duly issued and served for that purpose shall be compellable to give evidence and produce documents then in the person’s possession and power in the same manner and in case of refusal shall be subject to the same penalties and liabilities as if the person had been duly subpoenaed or summoned for that purpose. ˙ Witnesses failing to attend 75.(1) Where, in any proceeding in or before the Court or a Judge, whether in civil or criminal jurisdiction, a person fails to attend as a witness, or to produce any books, deeds, papers or writings, in accordance with a recognisance or subpoena thereunto binding or requiring the person, the Court or Judge may issue a warrant to bring and have that person at the time and place therein specified before the Court or Judge therein named. (1A) Subsection (1) applies in respect of— (a) recognisances entered into; and (b) subpoenas served;

s 79 21 s 81 Common Law Practice Act 1867 before, as well as on or after, the enactment hereof. (2) So far as relates to securing the attendance and punishing the non-attendance of witnesses and to rights and remedies had by parties against witnesses for failure to attend, this section applies in aid of and not in derogation from the jurisdiction had by a Court or Judge otherwise than under this section, and so that a warrant under this section shall not prejudice or affect in any way any such other jurisdiction or the aforesaid rights and remedies. † Trial without jury ˙ Judge may by consent try questions of fact 78.(1) The parties to any cause may by consent in writing signed by them or their attorneys as the case may be leave the decision of any issue of fact to the Court. (2) However, the Court upon a rule to show cause or a Judge on summons shall in their or his or her discretion think fit to allow such trial or provided the Judges of the Supreme Court shall in pursuance of the power hereinafter given to them make any general rule or order dispensing with such allowance either in all cases or in any particular class or classes of cases to be defined in such rule or order and such issue of fact may thereupon be tried and determined and damages assessed where necessary in open court either in term or vacation by any Judge who might otherwise have presided at the trial thereof by jury either with or without the assistance of any other Judge or Judges of the said Supreme Court and the verdict of such Judge or Judges shall be of the same effect as the verdict of a jury save that it shall not be questioned upon the ground of being against the weight of evidence and the proceedings upon and after such trial as to the power of the Court or Judge the evidence and otherwise shall be the same as in case of trial by jury. ˙ Power to Judge to direct arbitration at time of trial when issues of fact left to the Judge’s decision 79. If upon the trial of any issue of fact by a Judge under this Act it shall appear to the Judge that the questions arising thereon involve matter of

s 82 22 s 82 Common Law Practice Act 1867 account which can not conveniently be tried before the Judge it shall be lawful for the Judge at the Judge’s discretion to order that such matter of account be referred to an arbitrator appointed by the parties or to an officer of the Court or an associate or in country cases to a Judge of any District Court or a commissioner of the Supreme Court upon such terms as to costs and otherwise as such Judge shall think reasonable and the award or certificate of such referee shall have the same effect as hereinbefore provided as to the award or certificate of a referee before trial and it shall be competent for the Judge to proceed to try and dispose of any other matters in question not referred in like manner as if no reference had been made. † Amendment ˙ Amendment 80. It shall be lawful for the Supreme Court and every Judge thereof and any Judge sitting at nisi prius and for every circuit court at all times to amend all defects and errors in any proceeding in civil causes whether there is anything in writing to amend by or not and whether the defect or error be that of the party applying to amend or not and all such amendments may be made with or without costs and upon such terms as to the Court or Judge may seem fit and all such amendments as may be necessary for the purpose of determining in the existing suit the real question in controversy between the parties shall be so made. ˙ In cases where a variance shall appear between written or printed evidence and the record the court may order the record to be amended 81. It shall and may be lawful for every court of record holding plea in civil actions any Judge sitting at nisi prius if such court or Judge shall see fit so to do to cause the record writ or document on which any trial may be pending before any such Judge or court in any civil action when any variance shall appear between any matter in writing or in print produced in evidence and the recital or setting forth thereof upon the record writ or document whereon the trial is pending to be forthwith amended in such particular by some officer of the court on payment of such costs (if any) to the other party as such Judge or court shall think reasonable and thereupon the trial shall proceed as if no such variance had appeared and in case such

s 83 23 s 83 Common Law Practice Act 1867 trial shall be had at nisi prius the order for the amendment shall be endorsed on the postea and returned together with the record and thereupon the papers rolls and other records of the court from which such record issued shall be amended accordingly. ˙ Amendments to be made in the record in certain cases 82.(1) It shall be lawful for any court of record holding plea in civil actions and any Judge sitting at nisi prius and any Judge or other officer presiding at the trial of any writ if such court or Judge or officer shall see fit so to do to cause the record writ or document on which any trial may be pending before any such court or Judge in any civil action or in any information in the nature of a quo warranto or proceedings on a mandamus when any variance shall appear between the proof and the recital or setting forth on the record writ or document on which the trial is proceeding of any contract custom prescription name or other matter in any particular or particulars in the judgment of such court or Judge or officer not material to the merits of the case and by which the opposite party can not have been prejudiced in the conduct of the opposite party’s action prosecution or defence to be forthwith amended by some officer of the court or otherwise both in the part of the pleadings where such variance occurs and in every other part of the pleadings which may become necessary to amend on such terms as to payment of costs to the other party or postponing the trial to be had before the same or another jury or both payment of costs and postponement as such court or Judge or officer shall think reasonable. (2) In case such variance shall be in some particular or particulars in the judgment of the court or Judge or officer not material to the merits of the case but such as that the opposite party may have been prejudiced thereby in the conduct of the opposite party’s action prosecution or defence then such court or Judge or officer shall have power to cause the same to be amended upon payment of costs to the other party and withdrawing the record or postponing the trial as aforesaid as such court or Judge or officer shall think reasonable. (3) After any such amendment the trial shall proceed in case the same shall be proceeded with in the same manner in all respects both with respect to the liability of witnesses to be indicted for perjury and otherwise as if no such variance had appeared. (4) In case such trial shall be had at nisi prius or by virtue of such writ as

s 84 24 s 87 Common Law Practice Act 1867 aforesaid the order for the amendment shall be endorsed on the postea or the writ as the case may be and returned together with the record or writ and thereupon such papers rolls and other records of the court from which such record or writ issued as it may be necessary to amend shall be amended accordingly. (5) In case the trial shall be had in any court of record then the order for amendment shall be entered on the roll or other document upon which the trial shall be had. (6) However, it shall be lawful for any party who is dissatisfied with the decision of such Judge or other officer respecting his or her allowance of any such amendment to apply to the court from which such record or writ issued for a new trial upon that ground and in case any such court shall think such amendment improper a new trial shall be granted accordingly on such terms as the court shall think fit or the court shall make such other order as to it may seem meet. ˙ Amendments at trial 83. In all cases of variance between the proof and the record in any action at law now or hereafter depending in the Supreme Court it shall be lawful for the said court or the Judge before whom the trial is had if such court or Judge shall think fit instead of causing the record or document on which such trial is proceeding to be amended at such trial as by the rules and course of practice of the said court is provided in that behalf to direct the jury to find the fact or facts according to the evidence and thereupon such finding shall be stated on the said record or document and notwithstanding the finding on the issue or issues joined the said Supreme Court shall thereafter if it shall appear to the said court that the variance was immaterial to the merits of the case and such as could not have prejudiced the opposite party in the conduct of the action or defence give judgment according to the right and justice of the case. † Warrants of attorney ˙ Warrants of attorney and cognovit actionem to be executed in the presence of an attorney on behalf of the person

s 88 25 s 89 Common Law Practice Act 1867 84. From and after the commencement of this Act no warrant of attorney to confess judgment in any personal action or cognovit actionem given by any person shall be of any force unless there shall be present some attorney of the Supreme Court on behalf of such person expressly named by the person and attending at the person’s request to inform the person of the nature and effect of such warrant or cognovit before the same is executed which attorney shall subscribe the attorney’s name as a witness to the due execution thereof and thereby declare himself or herself to be attorney for the person executing the same and state that the attorney subscribes as such attorney. ˙ Warrant etc. not formally executed invalid 85. A warrant of attorney to confess judgment or cognovit actionem not executed in manner aforesaid shall not be rendered valid by proof that the person executing the same did in fact understand the nature and effect thereof or was fully informed of the same. ˙ Warrants of attorney in personal actions to be filed within 21 days 86. If the holder thereof shall think fit every warrant of attorney to confess judgment in any personal action or a true copy thereof and of the attestation thereof and the defeasance and endorsements thereon in case such warrant of attorney shall be given to confess judgment in Her Majesty’s Supreme Court or such a true copy thereof as aforesaid in case such warrant of attorney shall be given to confess judgment in any other court shall within 21 days after the execution of such warrant of attorney be filed together with an affidavit of the time of the execution thereof with the prothonotary of the said Supreme Court. ˙ In what case warrant of attorney deemed fraudulent 87. If at any time after the expiration of 21 days next after the execution of such warrant of attorney an adjudication of insolvency shall be issued against the person who shall have given such warrant of attorney under which the person shall be duly found and declared an insolvent then and in such case unless such warrant of attorney or a copy thereof shall have been filed as aforesaid within the said space of 21 days from the execution thereof or unless judgment shall have been signed or execution issued on

s 90 26 s 90 Common Law Practice Act 1867 such warrant of attorney within the same period such warrant of attorney and the judgment and execution thereon shall be deemed fraudulent and void against the assignees under such adjudication and such assignees shall be entitled to recover back and receive for the use of the creditors of such insolvent at large all and every the moneys levied or effects seized under and by virtue of such judgment and execution. † Cognovit ˙ Cognovit actionem to be filed in like manner or void against creditors 88. Every cognovit actionem given by any defendant in any personal action in case the action in which such cognovit actionem shall be given shall be in the said Supreme Court or a true copy of such cognovitactionem in case the action wherein the same is given shall be in any other court shall together with an affidavit of the time of the execution thereof be filed with the said prothonotary in like manner as such warrants of attorney or copies thereof and affidavits within the space of 21 days after such cognovit actionem shall have been executed otherwise such cognovit actionem and any judgment entered up thereon and any execution taken out on such judgment shall be deemed fraudulent and void against the assignees of the person giving such cognovit actionem under an adjudication of insolvency issued against the person after the expiration of the 21 days in like manner as warrants of attorney and judgments and executions thereon are deemed and taken to be fraudulent and void by this Act. † Warrants and cognovits ˙ Defeasance of warrant of attorney etc. to be written on same paper 89. If such warrant of attorney or cognovit shall be given subject to any defeasance or condition such defeasance or condition shall be written on the same paper or parchment on which such warrant of attorney or cognovit actionem shall be written before the time when the same or a copy thereof respectively shall be filed otherwise such warrant of attorney or cognovit actionem shall be null and void to all intents and purposes.

s 90 27 s 90 Common Law Practice Act 1867 ˙ Officer of Court to keep a book containing list and particulars of each warrant of attorney and cognovit 90. The said officer of the said Supreme Court shall cause every warrant of attorney and cognovit actionem in any personal action and every copy thereof filed in the officer’s said office to be numbered and shall keep a book or books in which the officer shall cause to be fairly entered an alphabetical list of every such warrant of attorney or cognovit containing therein the names and additions and descriptions of the respective defendants or persons giving such warrants of attorney or cognovits and also the names additions and descriptions of the plaintiff or persons in whose favour the same shall have been given together with the number and dates of the execution and filing of the same or of a copy thereof respectively and the sums for which judgment is to be entered up and also the sums which are specified to be paid by the defeasances or conditions in such warrant of attorney or cognovitactionem and the times when the same are thereby made payable according to the form contained in the Schedule hereunder which said book or books and every warrant of attorney and cognovit actionem or copy thereof filed in the said office shall be searched and viewed by all persons at all seasonable times paying to the officer for every search against 1 person the sum of 5c and no more.

s 91 28 s 93 Common Law Practice Act 1867 Name etc. of the person giving the warrant of attorney or cognovit Name Whether etc. of warrant person of for attorney whom or given cognovit and number Date of execution Date of filing Sum Defeasance for which given A.B. of C.D. of Warrant manufacturer merchant of attorney No. 1 1 January 186 . 10 January $2 000 To secure $1 000 payable etc. ˙ Fee for filing 91. The said officer shall be entitled to receive for the officer’s trouble in filing and entering such warrant of attorney or cognovit or a copy thereof as aforesaid the sum of 10c and no more. ˙ Office copies to be had on paying 92. Any person shall be entitled to have an office copy of each warrant of attorney or cognovitactionem or of the copy thereof filed as aforesaid upon paying for the same at the like rate as for office copies of judgments in each of such Courts respectively. ˙ Satisfaction entered on warrants of attorney and cognovits 93. It shall be lawful for any of the Judges of the Court in which such warrant of attorney or cognovit actionem is given to order a memorandum of satisfaction to be written upon such warrant of attorney cognovit actionem or copy thereof respectively as aforesaid if it shall appear to the Judge that the debt for which such warrant of attorney or cognovitactionem is given as a security shall have been satisfied or discharged.

s 94 29 s 95 Common Law Practice Act 1867 † Powers of the Court ˙ General rules may be made by the Judges 94.(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 95. This Act shall commence on 31 December 1867 and may be referred to as the Common Law Practice Act 1867 3–8 .

30 Common Law Practice Act 1867 † ENDNOTES ´ 1 Index to Endnotes Page 2 Date to which amendments incorporated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 3 List of legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 4 List of annotations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 5 Table of changed names and titles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 6 Table of corrected minor errors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 7 Table of renumbered provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 8 Table of comparative legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 ´ 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 24 June 1994. Future amendments of the Common Law Practice Act 1867 may be made in accordance with this reprint under the Reprints Act 1992, section 49. ´ 3 List of legislation Common Law Practice Act 1867 31 Vic No. 17 date of assent 28 December 1867 commenced 31 December 1867 (see s 95) as amended by— Sale of Goods Code 1896 60 Vic No. 6 s 60 Sch date of assent 7 September 1896 commenced 1 January 1897 (see s 2) Acts Citation Act 1903 3 Edw 7 No. 10 Sch 3 date of assent 13 November 1903 commenced on date of assent 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

31 Common Law Practice Act 1867 Common Law Practice Act Amendment Act 1915 6 Geo 5 No. 22 date of assent 14 December 1915 commenced on date of assent Common Law Practice Act Amendment Act 1940 4 Geo 6 No. 6 date of assent 16 October 1940 commenced on date of assent Law Reform (Limitation of Actions) Act 1956 5 Eliz 2 No. 19 ss 6–7 date of assent 22 November 1956 commenced on date of assent Common Law Practice Act Amendment Act 1964 No. 38 date of assent 2 November 1964 commenced on date of assent Common Law Practice Act Amendment Act 1970 No. 44 date of assent 21 December 1970 commenced on date of assent Common Law Practice Act Amendment Act 1972 No. 34 date of assent 21 December 1972 commenced on date of assent Property Law Act 1974 No. 76 s 3(2) Sch 6 Pt 3 date of assent 1 November 1974 commenced on date of assent Evidence Act 1977 No. 47 s 3(3) Sch 1 Pt C date of assent 3 October 1977 commenced 1 January 1978 (see s 1(2)) Common Law Practice Act Amendment Act 1978 No. 84 date of assent 15 December 1978 commenced on date of assent Succession Act 1981 No. 69 s 3(1) Sch 1 date of assent 7 October 1981 s 3(1) Sch 1 commenced 1 January 1982 (proc pubd Gaz 19 December 1981 p 1622) Common Law Practice and Limitation of Actions Acts Amendment Act 1981 No. 87 Pt 2 date of assent 13 November 1981 commenced on date of assent

32 Common Law Practice Act 1867 ´ 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 Preamble om 1908 8 Edw 7 No. 18 s 2 Sch 1 Construction of Act s 2 amd 1970 No. 44 s 2 Loss of earnings and future earnings s 4 prev s 4 om 1908 8 Edw 7 No. 18 s 2 Sch 1 pres s 4 ins 1978 No. 84 s 2 Compensation for future loss to be discounted s 5 prev s 5 om 1908 8 Edw 7 No. 18 s 2 Sch 1 pres s 5 ins 1981 No. 87 s 5 Debt may be brought against tenant for life for rent s 6 om 1974 No. 76 s 3(2) Sch 6 Pt 3 Rents how to be recovered when the demises are not by deed s 7 om 1974 No. 76 s 3(2) Sch 6 Pt 3 Debt on simple contract s 8 om 1981 No. 69 s 3(1) Sch 1 Rents recoverable from under-tenant when tenants for life die before the rent is payable s 9 om 1974 No. 76 s 3(2) Sch 6 Pt 3

33 Common Law Practice Act 1867 Rents reserved on leases determining on the death of the person making them (though not strictly tenant for life) or on the death of the cestui que vie to be considered as within the provisions of the section last preceding s 10 amd 1903 3 Edw 7 No. 10 Sch 3 om 1974 No. 76 s 3(2) Sch 6 Pt 3 Actions by and against executors for injuries in testator’s lifetime s 11 om 1981 No. 69 s 3(1) Sch 1 Limitation of actions s 14 amd 1956 5 Eliz 2 No. 19 s 6; 1981 No. 87 s 6 Where no action brought within six months by executor, then action may be brought by persons beneficially interested s 15A ins 1915 6 Geo 5 No. 22 s 2 Payment into court in 1 sum s 15B ins 1915 6 Geo 5 No. 22 s 2 Exclusion of certain payments in assessment of damages s 15C ins 1915 6 Geo 5 No. 22 s 2 sub 1972 No. 34 s 2 Effect of death on certain causes of action s 15D ins 1940 4 Geo 6 No. 6 s 2 amd 1956 5 Eliz 2 No. 19 s 7; 1972 No. 34 s 3 om 1981 No. 69 s 3(1) Sch 1 Specific delivery of goods sold s 18 om 1896 60 Vic No. 6 s 60 Sch Appearance hdg prec s 27 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Appearance by the defendant in person to give an address at which proceedings may be served s 27 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Mode of appearance to writ of summons s 28 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Dilatory Pleas hdg prec s 29 om 1908 8 Edw 7 No. 18 s 2 Sch 1 No dilatory plea to be received unless on affidavit s 29 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Times of Proceeding hdg prec s 30 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Plaintiff to declare within a year s 30 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Appearance to be entered at any time before judgment s 31 om 1908 8 Edw 7 No. 18 s 2 Sch 1

34 Common Law Practice Act 1867 Time for pleading where defendant is within jurisdiction to be eight days s 32 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Time for pleading after amendment s 33 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Proceedings where plaintiff neglects to bring on the cause to be tried s 34 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Defendant’s right to try upon default of the plaintiff preserved s 35 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Execution fourteen days after trial s 36 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Motion and Summons hdg prec s 37 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Affidavits on new matter s 37 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Court or judge may direct oral examination of deponents s 38 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Proceedings before and upon such examination s 39 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Proceedings upon order for examination s 41 amd 1977 No. 47 s 3(3) Sch 1 Pt C Judgment hdg prec s 42 om 1908 8 Edw 7 No. 18 s 2 Sch 1 No judgment as in case of nonsuit s 42 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Judgment by default when final s 43 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Judgment by default for liquidated demands final s 44 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Judgment for money demands without distinction between debt and damages s 45 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Expenses of execution s 47 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Examination of judgment debtor as to his property s 51 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Judge may order an attachment of debts s 52 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Order for attachment to bind debts s 53 om 1908 8 Edw 7 No. 18 s 2 Sch 1

35 Common Law Practice Act 1867 Proceedings to levy amount due from garnishee to judgment debtor s 54 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Judge may allow judgment creditor to sue garnishee s 55 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Garnishee discharged by payment or levy s 56 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Attachment book to be kept by the prothonotary s 57 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Costs of application s 58 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Proceedings where third person has a lien s 60 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Judge may bar claim of third person and make order s 61 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Remedy by writ of inquiry or trial s 65 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Writs of inquiry and trial s 67 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Commissioner’s fee for writ of trial s 68 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Power to adjourn trial s 71 om 1908 8 Edw 7 No. 18 s 2 Sch 1 Interest up to judgment s 72 sub 1972 No. 34 s 4 Interest on debt under judgment or order s 73 sub 1972 No. 34 s 5 Witnesses failing to attend s 75 sub 1964 No. 38 s 2 Mode of proceeding s 76 om 1964 No. 38 s 3 Two Nisi Prius Courts hdg om 1908 8 Edw 7 No. 18 s 2 Sch 1 Two judges may sit at same time for trial as at nisi prius s 77 om 1908 8 Edw 7 No. 18 s 2 Sch 1

36 Common Law Practice Act 1867 5 ´ Old felony Table of changed names and titles TABLE OF CHANGED NAMES AND TITLES under the Reprints Act 1992 ss 23 and 23A New Reference provision crime Criminal Code Act 1899 s 4(a) ´ 6 Table of corrected minor errors Provision TABLE OF CORRECTED MINOR ERRORS under the Reprints Act 1992 s 44 Description 40 om ‘if the Judge think fit’ ins ‘if the Judge thinks fit’ ´ 7 Table of renumbered provisions Original TABLE OF RENUMBERED PROVISIONS under the Reprints Act 1992 s 43 Renumbered as 15A (1st sentence) 15A (2nd sentence) 15A (3rd sentence) 15B (1st sentence) 15B (2nd sentence) 17 (1st sentence) 17 (1st proviso) 17 (2nd proviso) 22 (from ‘It shall be lawful’ to ‘may issue accordingly’) 22 (from ‘and if the person’ to ‘such judge or court may seem fit’) 22 (from ‘and thereupon and subject thereto’ to ‘Supreme Court of this colony.’ 25 (1st sentence) 25 (2nd sentence) 15A(1) 15A(2) 15A(3) 15B(1) 15B(2) 17(1) 17(2) 17(3) 22(1) 22(2) 22(3) 25(1) 25(2)

37 Common Law Practice Act 1867 25 (from ‘and every judgment obtained’ to ‘defendant in the action.’) 26 (1st sentence) 26 (proviso) 49 (1st sentence) 49 (proviso) 50 (1st sentence) 50 (proviso) 63 (from ‘In actions’ to ‘as occasion may require’) 63 (from ‘and the prothonotary shall endorse’ to ‘writ of inquiry.’) 69 (1st sentence) 69 (1st proviso) 69 (2nd proviso) 75 (1st sentence) 75 (2nd sentence) 78 (1st sentence) 78 (proviso) 82 (from ‘It shall be lawful’ to ‘postponement as such court or judge or officer shall think reasonable’) 82 (from ‘and in case such variance’ to ‘aforesaid as such court or judge or officer shall think reasonable’) 82 (from ‘and after such amendment’ to ‘such variance had appeared’) 82 (from ‘and in case such trial’ to ‘be amended accordingly’) 82 (from ‘and in case the trial’ to ‘the trial shall be had’ 82 (proviso) 94 (1st sentence) 94 (proviso) 25(3) 26(1) 26(2) 49(1) 49(2) 50(1) 50(2) 63(1) 63(2) 69(1) 69(2) 69(3) 75(1) 75(1A) 78(1) 78(2) 82(1) 82(2) 82(3) 82(4) 82(5) 82(6) 94(1) 94(2) ´ 8 Table of comparative legislation s 2 9 & 10 Vic. c. 93 s 5 s 3 3 & 4 Wm. 4 c. 42 s 13

38 Common Law Practice Act 1867 s 12 s 13 s 14 s 15 s 15A s 15B s 17 s 19 s 23 s 24 s 40 s 48 s 49 s 50 s 59 s 62 s 63 s 64 s 70 s 78 s 79 s 80 s 81 s 82 s 83 s 84 s 85 s 86 s 87 s 88 s 89 s 90 s 91 s 92 s 93 s 94 9 & 10 Vic. c. 93 s 1 9 & 10 Vic. c. 93 s 2 9 & 10 Vic. c. 93 s 3 9 & 10 Vic. c. 93 s 4 27 & 28 Vic. c. 95 s 1 27 & 28 Vic. c. 95 s 2 17 & 18 Vic. c. 125 s 78 1 & 2 Vic. c. 110 s 18 3 & 4 Wm. 4 c. 42 s 12 3 & 4 Wm. 4 c. 42 s 11 17 & 18 Vic. c. 125 s 48 1 & 2 Vic. c. 110 s 16 1 & 2 Vic. c. 110 s 14 1 & 2 Vic. c. 110 s 15 23 & 24 Vic. c. 126 s 28 15 & 16 Vic. c. 76 s 114 15 & 16 Vic. c. 76 s 94 15 & 16 Vic. c. 76 s 92 17 & 18 Vic. c. 125 s 59 17 & 18 Vic. c. 125 s 1 17 & 18 Vic. c. 125 s 6 15 & 16 Vic. c. 76 s 222 and see 3 & 4 Wm 4. c. 42 s 23 9 Geo 4 c. 15 3 & 4 Wm. 4 c. 42 s 23 3 & 4 Wm. 4 c. 42 s 24 1 & 2 Vic. c. 110 s 9 1 & 2 Vic. c. 110 s 10 3 Geo. 4 c. 39 s 1 3 Geo. 4 c. 39 s 2 3 Geo. 4 c. 39 s 3 3 Geo. 4 c. 39 s 4 3 Geo. 4 c. 39 s 5 3 Geo. 4 c. 39 s 6 3 Geo. 4 c. 39 s 7 3 Geo 4 c. 39 s 8 15 & 16 Vic. c. 76 s 223