Civil Process Act 1870

An Act to amend the Civil Process Act 1839

[Preamble Repealed by 25 Geo. V No. 78 ]

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

1.   

2.   Judges to make rules

[Section 2 Substituted by No. 18 of 2008, s. 13, Applied:26 Jun 2008]

(1)  The judges, or a majority of them, are to make Rules of Court –

(a) providing for the fees payable to the Sheriff, or the Sheriff's officers, for the execution of civil process; and

(b) specifying whether the Sheriff or the Sheriff's officers may receive or retain any of those fees for personal use.

(2)  Any prescribed tables of fees continue in force as if they were Rules of Court duly made under this section as substituted by the Justice and Related Legislation (Miscellaneous Amendments) Act 2008 .

(3)  For the purposes of subsection (2)  –

prescribed tables of fees means tables of fees and general rules –

(a) made under this section as in force before the commencement of the Justice and Related Legislation (Miscellaneous Amendments) Act 2008 ; and

(b) in force immediately before the commencement of that Act.

3.   Sheriff takes only such fees as are allowed, &c.

It shall be lawful for the Sheriff, or his officers concerned in the execution of civil process directed to the Sheriff, to demand, take and receive such fees, and no more, as are allowed by the judges.

4.   Poundage to be paid into Treasury

[Section 4 Amended by 25 Geo. V No. 78 ][Section 4 Amended by No. 4 of 2017, Sched. 1, Applied:01 Jul 2019] All fees and poundage received by the Sheriff or his officers concerned in the execution of civil process by virtue of this Act shall be paid into the Public Account.

5.   Levies made under writs of execution to be advertised

[Section 5 Amended by 25 Geo. V No. 78 ][Section 5 Amended by No. 55 of 1965, s. 5 ][Section 5 Amended by No. 12 of 1992, s. 4 ]The Sheriff or the Sheriff's deputy shall, within 28 days after making a levy under a writ of execution, cause a notice to be published in a newspaper stating when the levy was made and the time and place of the intended sale, which time shall, if the amount for which the writ of execution is issued is $200 or upwards, be not less than 20 nor more than 60 days after the date of such levy; and no property taken under any such writ of the value of $40 or upwards shall in any case be delivered over to the plaintiff, or disposed of by private valuation or contract, but by public sale or competition only.

6.   Poundage and expenses

[Section 6 Amended by No. 55 of 1965, s. 3 and Sched. 1 ]It shall be lawful for the Sheriff, or any deputy-sheriff, bailiff, or other officer or minister of the Sheriff, to levy, over and above the sum levied by him by virtue of any writ of extent or any writ of execution against the lands, goods, and chattels of any person, the sum of 5 cents of and for every $2 where the sum levied does not exceed $200, and 5 cents of and for every $2 being over and above the said sum of $200, provided that in no case shall the poundage exceed $50, and also the sum of 5 cents for every mile he may travel beyond 5 in going to and returning from any place to which he may be compelled to travel in executing any such writ of extent or writ of execution as aforesaid; and may also, in giving possession or seizin of any messuage, tenement, or hereditament under any writ of habere facias possessionem aut seisinam, demand, ask, and receive the sum of 5 cents for every dollar of the yearly value of the messuage, tenement, or hereditament whereof possession or seizin is given, whereof the yearly value does not exceed $200, and the sum of 5 cents only for every $2 per annum over and above the said yearly value of $200, and also the same sum for travelling expenses as if such writ had been a writ of extent or writ of execution as aforesaid.

7.   Penalty for levying excessive poundage and expenses

[Section 7 Amended by 25 Geo. V No. 78 ][Section 7 Amended by No. 55 of 1965, s. 5 ]If the Sheriff, or any deputy-sheriff, bailiff, or other officer or minister of the Sheriff, levies any greater sum than he is hereinbefore authorized to levy, he shall pay to the party grieved three times the amount of such excess, which shall be recovered by action in the Supreme Court, and shall also be liable to a penalty of $100, one moiety whereof shall go to His Majesty, and the other moiety thereof to the party who sues for the same, and the same may be recovered by action of debt in the Supreme Court.

8.   Power of Sheriff to recover fees and expenses by action

Whenever the Sheriff or his officers are unable without default on their part to recover under any civil process the fees and expenses necessarily and properly incurred and payable in respect thereof from the person against whom such process has issued, such fees and expenses, or any part thereof, shall be paid to the Sheriff by the party at whose suit the execution issued; and on non-payment of the same by such last-mentioned party on demand, a judge shall, in a summary way, ascertain the amount of such expenses and enforce payment thereof by such last-mentioned party to the Sheriff by the same means as are by law provided for enforcing a judgment of the Supreme Court, and such amount shall be recoverable by such last-mentioned party against the opposite party as costs in the cause.

9.   Punishment of persons taking fees not allowed

[Section 9 Amended by 25 Geo. V No. 78 ]If the Sheriff, or any other officer or minister acting in the execution of civil process directed to the Sheriff, or engaged or concerned therein, extorts, demands, takes, accepts, or receives from any person any fee or fees, gratuity or reward, not allowed by law, or greater in amount than is allowed by law, he shall, upon complaint thereof made against him to the Supreme Court, on proof being made thereof upon oath, either by the examination of witnesses viva voce or on affidavits, or on interrogatories, to the satisfaction of the Court, that such Sheriff, officer, or minister, as the case may be, has offended therein as aforesaid, be adjudged guilty of a contempt of the said Court, and be punished accordingly; and if any person, not being such officer or minister as aforesaid, assumes or pretends to act as such, and extorts, demands, takes, accepts, or receives any fee, gratuity, or reward, under colour or pretext of such office, he shall, on like complaint and proof, be in that respect dealt with by the Court in like manner.

10.   Power of Court to award costs

[Section 10 Amended by 25 Geo. V No. 78 ]In all cases of summary complaint as aforesaid the Supreme Court may, at its discretion, award the costs of or occasioned by such complaint to be paid by either party to the other, such costs to be taxed by the Taxing Officer of the Court: Provided always that no such complaint shall be entertained unless made within the 3 months next following the act whereof complaint is made.

11.   Sheriff giving up property when defendant bankrupt entitled to certificate and payment

In every case in which, under the law relating to bankruptcy, the Sheriff gives up possession of goods or lands which have been taken by him in execution to the trustee of the estate and effects of any defendant adjudged a bankrupt, the Sheriff shall be entitled to receive from the Registrar of the Supreme Court, and the Registrar shall grant to him, a certificate under his hand, setting forth therein how much money, if any, might lawfully have been levied and made of such goods and lands for the expenses of execution if the same goods and lands had been sold thereunder; and such Registrar shall include in such certificate the cost of suing out such writ of execution as part of the expenses of the execution; and, upon production of the said certificate to the trustee of the estate of the defendant so adjudged a bankrupt, such trustee shall, out of the moneys then in his hands or which shall first come to his hands out of such estate, pay to the Sheriff the amount of moneys specified in such certificate, and what shall be so paid by every such trustee shall be allowed in his accounts.

12.   Short title

[Section 12 Amended by 25 Geo. V No. 78 ]This Act may be cited as the Civil Process Act 1870 .

SCHEDULE 1

Section 1