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©State of Queensland

67, 331 Vie. [Reprinted as at 1 October, 19841

Interdict Act of 1 7, 31 Vie. MO. As amended by

ion Act of 1903, 3 Edw, 7 No. 10 Criminal Code Act, ~ $ 9 9 , 63 Vie.

vision Act of 19 1973, No, 3.8, s

An Act to Consolidate and A Interpleader Mandamus Quo

the Laws re1ating to ~ b i t ~ t i o n anto Prohibition and ~ n ~ u n c ~ o n

[ASSENTED TO 28 DECEMBER, 18671 References to “Pring’s Statutes” and to Colonial Acts were expunged from the sectional

notes t h r o u ~ o u t this Act by Acts Citation Act of 1903, s. LO. ~ e a ~ b l e repealed by Act of 1908, 8 Edw. 7 No. 18, s. 2.

BE IT E N A ~ E ~ by the que en'^ Most Excellent Majesty by and with the advice and consent of the ~ ~ s l a t i v e Council and Legislative Assembly of Queensland in Parliament assembled and by the authority of the same as follows-

INTERPRETATION on. The words “ c ~ ~ l r t ~ ” and “judge” in this Act shall

mean the upr re me Court and a judge thereof respectively unless some other meaning expressly appear or be n e c e s ~ ~ l y implied.

2-2 1. (Repealed). Repealed by Act of 1973, No. 34, s. 3 First Sch.

INTERPLEADER

22. ~ p o n a ~ ~ ~ i ~ t i o n by a def~ndant in an action of assumpsit etc. in the subject matter is in a third party the court

appear and ~ i n ~ i n Qr relin claim and in the mean 4 c. 58 s. 1. Upon application made by or on behalf of any defendant

in such action. 1

2 s.23 I ~ T ~ ~ ~ I ~ ACT OF 1867 s. 26

sued in the Supreme Court of Queensland in any action of assumpsit debt detinue or trover such application being made after declaration and before plea by a f f i ~ v i t or o t h e ~ s e showing that Such defendant does not claim any interest in the subject matter of the suit but that the right thereto is claimed or supposed to belong to some third party who has sued or is expected to sue for the same and that such defendant does not in any manner collude with such third party but is ready to bring into court or to pay or dispose of the subject matter of the action in such manner as the court (or any judge thereof) may order or direct it shall be lawful for the court or any judge thereof to make rules and orders calling upon such third party to appear and to state the nature and particulars of his claim and maintain or relinquish his claim and upon such rule or order to hear the alle~tions as well of such third party as of the plaintiff and in the mean t i~e to stay the proceedings in such action and finally to order such third party to make himself defendant in the same or some other action or to proceed to trial on one or more feigned issue or issues and also to direct which of the parties shall be plaint i~or d e f e n ~ n t on such trial or with the consent of the plaintiff and such third party their counsel or attorneys to dispose of the merits of their claims and determine the same in a s ~ m ~ manner and to make such other rules and orders therein as to costs and all other matters as may appear to be just and reasonable.

23. J ~ d g m e n ~ and ecision to be final. 1 c. SS s. 2, The judgment ih any such by the court or judge and the decision of the court or judge in a summary manner shall be final and conclusive against the parties and all persons claiming by from or under them.

tion or issue as m

third party shall not appear up r e l ~ ~ u i s h his claim being duly served therewith or shall neglect or refuse to comply with any rule or order to be made after appearance it shall be lawful for the court or judge to declare such third party and all persons claimin8 b or under him to be for ever barred from prosecuting his claim the original defendant his executors or adminis trat om saving less the right or claim of such third party against the plaintiff and thereupon to make such order between such defendant and the plaintiff as to costs and other matters as may appear just and reasonable.

58 s. 4. Provided always that every order e made in pursuance of this Act by a single judge not sitting in open court shall be liable to be rescinded or altered by the court in like manner as other orders made by a single judge.

26. If a judge thinks the matter more fit for the decision of the court he may refer it. 1 & 2 Wm. 4 c, 58 s, 5. Provided also that if upon application to a judge in the first instance or in any later stage of the pro~eedings he shall think the matter more fit for the decision of

oviso as to orders made by a sin

s, 27 INTERDICT ACT OF 1867 s.31 3

the court it shall be lawful for him to refer the matter to the court and thereupon the court shall and may hear and dispose of the same in the same manner as if the proceeding had o ~ ~ n a l l y CO enced by rule of court instead of the order of a judge.

c. 126 s. 12. Where an action has been commenced common law claim for the re cove^ of money or goods

and chattels have been taken or are intended to be under process issued from the Supreme Court or

any court of record in the colony of Queensland and the defendant in such action or the sheriff or other officer has applied for relief under the pro~isions of this Act it shall be lawful for the court or a judge to whom such application is made to exercise all the powers and authorities given to them by this Act though the titles of the claiman money goods or chattels in question or to the value or proceeds thereof have not a common origin but are adverse to and inde~endent of one an0 t her.

to decide sum 23 UP claims it shall be lawful for the court or a judge whe er the amount in dispute or the value of the goods seized shall not ex dollars if it shall ap ear to them or him desirable a at the request of either ispose of the merits of the respective claims of such p a ~ e s and to determine the same in a summa^ manner upon such terms as they or he shall think fit to impose and to make such other rules and orders therein as to costs and all other matters as may be just.

Acf of 1965.

on hearing of any rule or order nd state the nature and p a ~ i c ~ a r s o

Decimal currency r ~ f ~ r ~ ~ c ~ substituted pursuant to section 7 of Decimal Currency

29. Special case may be stated where facts wn~ispute~. 23 Vie, e. 126 s. 15. In all cases of interpleader proceedings where the question is one of law and the facts are not in dispute the judge shall be at liberty at his discretion to decide the question without directing an action or issue and if he shall think it desirable to order that a special case be stated for the opinion of the court.

30, ~ o c e e d i n ~ s on special 24 Vie. c. 126 s. 16. The proceedings upon such case shall as nearly as may be be the same as upon a special case stated under the ‘ 4 ~ ~ ~ ~ ~ i ~ ~ Act of 1867”.

31. ~ ~ $ ~ m e n t and decision when to be final. 23 & 24 Vie. 6. 126 s, 17. The judgment in any such action or issue as may be directed by the court or a judge in any inte~leader proceedings and the decision of the court or a judge in a summa^ manner shall be final and conclusive a ~ i n s t the parties and all persons claiming by from or under them.

4 s.32 INTERDICT ACT OF 1867 8. 35

INTERPLEADER BY THE SHERIFF

32. For relief of sheri ers in execution of process ods and chattels. s. 6. And whereas sometimes arise i rocess against goods

and chattels issued by or under the authority of the Supreme Court by reason of claims made to such goods and chattels by assignees of bankrupts and other persons not being the parties against whom such process has issued whereby sheriffs and other officers are exposed to the hazard and expense of actions and it is reasonable to afford relief and protection in such cases to such sheriffs and other officers Be it therefore further enacted That when any such claim shall be made to any goods or chattels taken or intended to be taken in execution under any such process or to the proceeds or value thereof it shall and may be lawful to and for the Supreme Court or any judge thereof upon application of such sheriff or other officer made before or after the return of such process and as well before as after any action brought against such sheriff or other officer to call before them or him by rule of court as well the party issuing such process as the party making such claim and thereupon to exercise for the adjustment of such claims and the relief and protection of the sheriff or other officer all or any of the powers and authorities hereinbefore contained and make such rules and decisions as shall appear to be just according to the circumstances of the case and the costs of all such proceedings shall be in the discretion of the said court or judge.

As amended by Act of 1903, 3 Edw. 7 No. 10, s. 10.

ct sale of seized in exe 23 goods or 1s have been in

execution by a sheriff or other officer under process of the Supreme Court and some third party claims to be entitled under a bill of sale or otherwise to such goods or chattels by way of security for a debt the court OF a judge may order a sale of the whole or part thereof upon such terms as to the payment of the whole or part of the secured debt or otherwise as they or he shall think fit and may direct the application of the proceeds of such sale in such manner and upon such terms as to such court or judge may seem just.

s costs. Where it shall appear to the Supreme Court or a judge thereof that the sheriff or other officer has acted bona fide and with due diligence in making application for relief under this Act in case of adverse claims it shall be lawful for the said court or a judge thereof to allow the sheriff or other officer all reasonable costs and expenses which he shall have incurred as to the court or a judge shall seem fit.

RULES ORDERS ETC. IN INTERPELEADER PROCEEDINGS 35. Rules orders etc. made in interpleader proceedin

enter^^ of record and made evidence. 23 & 24 Vic. c. 126 s. 18. All

s. 36 INTERDICT ACT OF 1867 s.38 5

rules orders matters and decisions to be made and done in inteqleader proceedings under this Act (excepting only any affidavits) may together with the declaration in the cause (if any) be entered of record with a note in the margin expressing the true date of such entry to the end that the same may be evidence in future times if required and to secure and enforce the payments of costs directed by any such rule or or and every such rule or order so entered shall have the force and effect of a judgment of the Supreme Court.

PREROGATIVE WRIT OF MANDAMUS

required to make a return to a writ of mandamus shall make their return to the first writ.

a false return and if any issue shall be joined on such proceedings the person or persons suing such writ shall and may try the same in such place as an issue joined in such action on the case should or might have been tried and in such case a verdict shall be found for the person or persons suing such writ or judgment given for him or thereupon a demurrer or nil dicit or for want of a replication or other pleading he or they shall recover his or their damages and costs in such manner as he or they have done in such action on the case as aforesaid such costs mages to be levied by capias ad satisfaciendum fieri facias or elegit and a peremptory writ of mandamus shall be granted without delay for him or them for whom judgment shall be given as might have been if such return had been adjudged insufficient and in case judgment shall be given for the person or persons making such return to such writ he or they shall recover his or their costs of suit to be levied in manner aforesaid.

38. Person against whom es shall be recovered not liable to e sued in other actions. 9 A 20 s. 3. Provided always that if

any damages shall be recovered by virtue of this Act against any such person or persons making such return to such writ as aforesaid he or they shall not be liable to be sued in any other action or suit for the making such return any law usage or custom to the contrary thereof in anywise notwithstanding.

6 s.39 INTERDICT ACT OF 1867 s. 41

to whom writs of us whereas writs of US

are sometimes i s r persons c o m ~ a n ~ n ~ them to admit to offices or do or perform other matters in respect whereof the persons to whom such writs are ~ r e c t e d claim no right or interest or whose f u n c t i o ~ ~ are merely ~ i ~ s t ~ ~ a l in relation to such oEces or m a t t ~ r ~ and it may be proper that such officers and persons should in

the same shall and

s. 42 INTERDICT ACT OF 1867 s.47 7

and also the costs of the writ if the same shall be issued and obeyed shall be in the discretion of the court and the court is hereby a ~ t h ~ r i s e d

direct by who to whom the same shall be paid.

ce! writ of

~ t ~ O ~ t terns.

ACTION FOR MANDAMUS

8 s.48 INTERDICT ACT OF 1867 s. 53

. Form of ~ e r g m p t ~ r ~ writ. The writ need not recite the declaration or other proceedings or the matter therein stated but shall simply command the p e ~ o ~ a n c e of the duty and in other respects shall be in the form of an ordinary writ of execution except that it shall be directed to the party and not to the sheriff and may be issued in term or vacation and returnable forthwith and no return thereto except that of compliance shall be allowed but time to ret^ it may upon ~ u ~ c i e n t grounds be allowed by the court or a judge either with or without terms.

The writ of manda~us so issued as aforesaid shall force and effect as a peremptory writ of mandamus and in case of disobedience may be enforced by attachment,

instead of proceeding a ~ i n s t the ~ i so~ed ien that the act required to be done may be d other person appointed by the court at the expense of the d e f e n ~ a ~ t and upon the act being done the amount of such expense may be ascertained by the court either by writ of inquiry or reference to the prothonotary as the court or a judge may order and the court may order payment of the ~ o u n t of such e x ~ n s e s and costs and enforce payment thereof by execution.

Nothing herein co~tained shall take away the jurisdiction of the upr re me Court to grant writs of mandamus nor shall any writ of mandamus issued out of that court be invalid by reason of the right of the prosecutor to proceed by action for mandamus under this Act.

1. ~ ~ e r ~ g a t i y e writ of rna~darnus ~ r e s ~ ~ v e

INJUNCTION

cases of breach of contract or other injury where the party injured is entitled to m a i n ~ n and has b r o u ~ t an action he may iq like case and manner as hereinbefore provided with respect to m~ndamus claim a writ of i n j ~ c t i o n against the repetition or continuance of such breach of contract or other injury or the committal of any breach of contract or injury of a like kind arising out of the said contract or relating to

right and he may also in the same action include or other redress.

d ~ r s e r n ~ ~ t t h ~ r g o ~ . 19 8t: 18 in such action shall be in the

same form as the writ of summons in any personal action but on every writ and copy thereof there shall be indorsed a notice that in It of a p p e ~ n c e the plaintiff may besides proceeding to judgment

and execution for damages and costs apply for and obtain a writ of injunction.

s. 54 INTERDICT ACT OF 1867 $3.57 9

54. ~o~~ of ~ ~ o c ~ ~ d i ~ 81. The proceedings in s be and subject to the like control as the procee~ngs in obtain a mandamus under the provisions in such action judgment may be given th or do not issue as justice may require and in case of disobedience such writ of injunction may be enforced by attachme~t by the court or where such court shall not be sitti~g

action shall be the same a

t an order for a w i t of judg by virtue thereof may b or set aside by the court on ap lication m ~ d e dissatisfied with such order.

sequestration against their property and eff'ects to be issued in such form and tested and retu~able in like manner as writs of execution and to be proceeded upon and executed in like manner as writs of esquestration issuing out of the Court of Chancery,

~ A ~ D A ~ ~ S A N D INJUNCT'ION

57. costs of wits

issuing and serving such writ and payment of such costs may be enforced in the same manner as costs payable under a rule of court are now by law enforceable.

10 s.58 INTERDICT ACT OF 1867 s. 59

QUO WARRANTO

s. 60 INTERDICT ACT OF 1867 s.62 11

ven shall recover his or their costs therein expended against such relator or relators such costs to be levied in ~ a ~ n ~ r a ~ o r ~ s ~ i d .

PROHIBITION

POWERS OF THE COURT

12 s, 63 INTERDICT ACT OF 1867 s. 64

of this Act and of the intention of and for fixing the costs to be allowed for and in res erein contained and the performance thereof and costs of issues

also for altering the number this Act limited for the

or a ~ t h o ~ s e ~ to be done and subst i t~t i~g other days for the same as in their judgment shall be necessa~ or proper

rn of any writ or for the: doing o g by this Act p ~ e s ~ b e d

t nothing herein con~ined shall be construed to re limit the jurisdiction of the said court or the j

les or orders or o t h e ~ s e to ~egulate and dispose o the business therein.

except as far as the effect there of ma^ be varied by this Act.

C O ~ ~ E N C ~ ~ E N T AND SHORT TITLE e. This Act shall c o ~ ~ e n c e

of December one thousand eight hundred and e referred to as the ‘ ~ r n ~ ~ r ~ ~ c ~ Act of 1867. ”

65 183-By Authority: S. R, HAM^^^, Government Printer, Qu~nsland

to the

* PI

Act- commencement . . . . . . . . . . . . . . s. 64 shon title . . . . . . . . . . . . . . . . . 64

court may order third party to appear . . . . 22 court may stay proceedings . . . . . . . . . . . upon application of defendant . . . . . . . . . . 22

Action for assumpsit, debt, detinue or trover-

22

Action for Mandamus. See Mandamus.

Commencement of Act

~ o ~ o r a t i o n s - injunction against . . . . . . t

mode of enforcing writs agaiiist . . ' . . . . .

against relator , . . . . . . . . . jury may assess, re prohibitibn may be included in writs . ' . . . . . . of writs of Mandamus and inJunction . . . . . . . . to be at th; d i ~ ~ ~ € i o n of'court

may bar claim of third party

may grant injunctio~ though titles are adverse

meaning of term . . . . . . .

Costs-

. . . . . .

sheriffs . . . . . . . . . . . . . . . . . . . .

Court- . . . . . . . .

may decide summarily in certain cases may direct sale of goods seized in execution . . . . .

may order act done at the expense of the defendant . . . . .

. . . . . . . . .

powers to make general Ales . . . . . .

Damages-

Declararion-

Definitions-

jury may assess, re prohibition . ~ . ' .

in action for mandamus

court . . . . . . . . judge . . . . . . . . . . . .

Evidence- rules, orders of interpleader proceedings may be

Form- of peremptory writ . . , . . . . . . . of proceedings and judgement, re injunction . of writ of summons and endorsement thereon, re injunction

. . . . .

Forms- may be issued by judges . . . . . . . . new: of writs and other p r o ~ e d ~ n g s . . . . . .

64

56 56

59 60 57 57 34 41

60

45

1 1

35

48 54 53

63 63

. .

, .

I .

. .

I t t

. .

. .

. .

. .

. .

. .

. . . . . . .

. .

. . ' . . . .

. .

. . I

, ' .

. .

. . .

. .

. . . . . .

Page

12 12

1 1 1

12

9 9

10 1 1 9 9 4 6

1 1

I

1 1

4

8 9 8

12 12

14 INDEX

Injunction- claim of writ costs on . . . . . . . . . . . .

forms of summons and indorsement thereon . . . . . . general provisions as to proceedings on . . . . . . . . . . . may be applied for at any stage in the cause . . . . . . . mode of enforcing. against corporations . . . . . . . . . . . .

by sheriff-

court may-

court may grant. though title's' adverse . . . . . . . . .

interpleader-

for relief of sheriffs . in execution of process . . . . . . . . sheriffs costs . . . . . . . . . . . . . . . . decide summarily where value under $100 . . . . hear claim of non-appearing third party . . . . . rescind orders of a single judge . . . . . . . . .

judgement and decision upon. to be final . . . . . . may be granted though titles are adverse . . rules. orders etc . may be entered of record and'made evidence : special case may be stated

.n.erp..tion . See ..nitionS.

. . . . . . . . . . . stay of proceedings . . . . . . . . . . . . .

J

Judge- in first instancc-

may decide summarily in certain cases may direct sale of goods seized in execution

and execution . . . . . . . . . .

in writs of prohibition . . . . . . . . . of ouster . . . . . . . . . . . . . to be final . . . . . . . . . . . . when to be final . . . . . . . .

general rules made by . . . . . . . . . may issue new forms of writs meanlng of term . . . . . . . . .

may refer matter to court . . . .

Judgement-

form of, re injunction . . . . . . . . . .

Judges-

. . . .

. . . . . .

. . . . . . . . . .

. . . . . . . . . . . . . . . . . . .

. . . . . . . . .

. . . . . . .

. . . . . . . .

. . . . . . . . . . . . . . .

Mandamus- action for-

court may order act to be done at defendants expense. . . . declarati~n therein . . . . . . . . . . . . . . . . . . effwt thereof . . . . . . . . . . . . . . . . i n d o ~ m e n t of writ for purpose of . . . . . . . . . . . pesempto~ writ-

form of . . . . . issue of . . . . . . . . . . . . . . . . . .

prerogative writ preserved . . . . . . . . . . . . . proceedings in . . . . . . . . . . . . . . . . to enforce the performance of duties . . . . . . . . . . .

costs in discretion of court . . . . . . . . . . . . . . costs on . . . . . . . . . . . . . . . . . . . . general provisions a5 to proceedings . . . . . . . . . . prerogative writ, return to be made first . . . . . . . . . p r ~ ~ d i n ~ ~ not to abate by removal of officer . . . . . . p r ~ e e d i n ~ s on . . . . . . . . . . . . . . . . . . . . . prot~ t ion of certain offiiifs . . provision lo be applied to ail k ' t f of' . . . . . . . . . . . recovery of damages ban other actions . . . . . rule may be absolute in first instance . . . . . . . . . .

. . . . . . . . . .

. . . . . . . . .

32 34 .

28 . 24 25 23; 31 . 27 35 . 29. 30 22

. . . . .

. . .

. . . . . . I t ~

. . . . . . . . . . . . . . . . .

26 28 33

47 54 60 59 23 31

62 63

I

so 45 49 44

48 47 51 46 44 41 57 61 36 40 37 39 43 38 42

. . . . . . . .

. . . . . . .

. . . . . . .

. . . . . .

. . . . . . . . I . .

. . . . . . .

. . . . . . .

. . . . . . .

. . . . . . .

. . . . . . . .

. . . . . . . .

. . . . . . .

. . . . . . .

. . . . . . .

Page

8 9 3 8

11 9 9

4 4

3 2 2

2. 3 3 4 3 1

2 3 4

7 9

1 1 10 2 3

11 12

1

8 7 8 7

8 7 8 7 7 6 9

11 5 6 5 6 7 5 7

INDEX

8 OfiiCer-

proceedings not to ahate by removal of , , . . . . . . . . , .

Oflicers-- protection of certain

Ouster- judgement of, shall be given against persons guilty of usurpation

etc.. . . . . . . , . , . . , , , , , ,

P Peremptory writ-

Peremptory writ of Mandamus. See Mandamus.

Person a ainst whom damages are recovered-

Pleading and Common Law Proeiice and Process Act3 of 1867-

form of . . I . I . . , . I . . . . . . . . . I . . . .

not iable to be sued in other actions . . . . , , , . , , .

provisions of, applicable to writs of anda am us, injunction, quo warranto, prohibition etc. . . . . . . . I I . . . .

Power8 ofcourt I ' ~ t 1

Prerogative writ of m a n ~ m u s - how p r o c ~ d i n ~ shall be . I . . . . . . . . . . . . . person r e t u ~ i ~ may reply . . . . . . . . . , . . . . . .

aeceierated . . . . . . . . . . . . . . . . . . . made to first writ . . . . . , . , . . . . . . .

when return made, prosecutor may plead. . . . . . . . . . . .

for prerogative writ of mandamus accelerated. . , ,

form of, re injunction . not to abate by removal of okcer on prerogative writ of mandamus upon claim for mandamus

Proceedings-

Prohihition- writs of-

application for, made on affidavit only contents of declaration defendant may demur to judgment

Quo Warranto- general provisions as to proceedin s on how information may be exhibite$ judgement of ouster and costs .

Relator-

Rules, orders, etc. in interpleader proeeedinp-

re costs

may be entered of record and made evidence

6 4 0

39

59

48

38

61

62, 63

. . . , ' I

, . . . . .

. . . . .

. . . . .

. . , . . .

, . . . . .

42 . . . . 54 . 40 61 . . 46 . .

60 60 60 60

61 58 59

59

35

Shenff- i n t e ~ I e a d ~ r by. See lnte~leader. relief and protection for . ' .

Sheriffs costs . . 32 . . ,

34 . , t

!?tigE

6

6

10

8

5

11

11, 12

5 5 7 5 5

7 9 6

11 7

11 11 11 11

11 10 IO

10

4

4

4

16 INDEX

Short title . . . . . . . . . . . . . . . s , 6 4 . . . . . . . Single judge-

orders may be rescinded or altered 2s

Special Case- may be stated where facts undisputed . . . . . . . . . 29 . I t t . . p r o c e ~ ~ n g s upon re Pteading A d of 1867 . . . . . . . . 30 . . . . .

in interpleader 22 . . . . . . . Stay of proceedings-

. . . . . . . . . . . . . . . . .

Writs of- injun~tion. See Injunction. mandamus. See Mandamus. prohibition, See Prohibition.

Page

12

2

65183-Ely Authority: S. R. HAMPSON, Government Printer, Queensland C - 103