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Judicature (Courts) Ordinance, 2010 Rev Ed

LAWS OF PITCAIRN, HENDERSON, DUCIE AND OENO ISLANDS

Revised Edition 2010

CHAPTER II

JUDICATURE (COURTS) ORDINANCE

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PART I—PRELIMINARY

Section

1. Citation
2. Interpretation

PART II—SUPREME COURT

3. Continuation of Supreme Court
4. Seal of Supreme Court
5. Constitution of Supreme Court
6. Jurisdiction of Supreme Court
7. Officers of Supreme Court
8. Duties of the Registrar
9. Mode of trial

PART III—MAGISTRATE'S COURT

10. Establishment of Magistrate's Court
11. Magistrates
12. Criminal Jurisdiction
13. Civil Jurisdiction
14. Appeal from Magistrate's Court
15. Reconciliation
15A. Place of sitting of Supreme Court and Magistrate's Court
15B. Changing place of trial before or after information or charge filed

PART IIIA—APPEALS TO THE PITCAIRN COURT OF APPEAL IN CIVIL CASES

15C. Pitcairn Court of Appeal may hear appeals from judgments and orders of the Supreme Court
15D. Appeals against decisions of Supreme Court on appeal

PART IV—GENERAL

16. Documents and proceedings not to be held invalid except where there has been a substantial miscarriage of justice
17. Practice and procedure
18. Protection of judicial officers
19. Attorney General and Public Prosecutor
20. Power to make rules

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JUDICATURE (COURTS) ORDINANCE

Ordinances Nos:
1 of 1952
1 of I968
3 of 1970
3 of 1982
5 of 2005
1 of 2009
4 of 2010.

An ordinance to repeal and replace the Judicature Ordinance 1970; for the continuation of a Supreme Court of Judicature and the establishment of a Magistrate's Court for the Islands

[1st February, 2000]

PART I—PRELIMINARY

Citation.

1. This ordinance may be cited as the Judicature (Courts) Ordinance.

Interpretation.

2. In this ordinance, unless the context otherwise requires—

"Magistrate's Court" means the Court established under the provisions of section 10 of this ordinance;

"Supreme Court" means the Supreme Court of Pitcairn [as constituted by section 45 of the Constitution of Pitcairn];

(Amended by Ordinance No. 4 of 2010)

"Public Prosecutor" means the person appointed by the Governor to be Public Prosecutor for the Islands;

"Registrar" in relation to the Supreme Court means the person appointed by the Governor to be the Registrar of the Supreme Court and includes any person appointed as a Deputy Registrar;

"Registrar" in relation to the Magistrate's Court means the person appointed by the Governor to be the Registrar of the Magistrate's Court and includes any person appointed as a Deputy-Registrar;

PART II—SUPREME COURT
(Sections 3–6 repealed by Ordinance No. 4 of 2010)

Officers of Supreme Court.

7.—(1) The Governor may from time to time appoint and remove a Registrar and such clerks, bailiffs, interpreters or other officers as he considers to be necessary for the administration of justice and the due execution of all the powers and authorities which are granted to or vested in the Supreme Court.

(2) Any judge, the Registrar and any officer of the Court designated in that behalf by a Judge, shall have power to administer oaths and take affidavits, declarations and affirmations.

(3) Any judge may, subject to any directions of the Governor, appoint any person temporarily to perform, with or without remuneration, in relation to any particular causes or matters, the duties of the Registrar or of any other officer of the Supreme Court.

(4) A judge may act as the Registrar of the Court if there is no other person appointed to be the Registrar.

Duties of Registrar.

8. The Registrar shall discharge such duties as are respectively performed by the Master, Registrar, Taxing Master or Keeper of the Records of Her Majesty's High Court of Justice in England and shall be Registrar of the Supreme Court in its Admiralty jurisdiction and the Registrar and the other officers of the Court shall be subject to such orders as they shall from time to time receive from the Chief Justice or any other judge of the Supreme Court.

Mode of trial.

9.—(1) Trials before the Supreme Court in its civil or criminal jurisdiction shall be by a judge alone, provided that the Court may, if it thinks it expedient and practicable so to do, sit with assessors.

(2) Where the Supreme Court proceeds to hear any civil or criminal cause with assessors, the Court shall nominate and summon as assessors not less than two nor more than four indifferent persons subject to the jurisdiction of the Court and of good repute.

(3) When in any trial held with the aid of assessors the case on both sides is closed, the judge may sum up the evidence and shall then require each of the assessors to state his or her opinion orally and the judge shall record each such opinion and shall then give judgment but in so doing shall not be bound to conform to the opinion of the assessors.

(4) Nothing in subsection (3) shall be construed as prohibiting the assessors or any of them from retiring to consider their opinion if they so wish, or, during such retirement or at any time during the trial, from consultation with one another.

PART III—MAGISTRATE'S COURT

Establishment of Magistrate's Court.

10.—(1) There shall be for the Islands a court subordinate to the Supreme Court to be styled "the Magistrate's Court" which shall be presided over by a magistrate appointed under the provisions of section 11 of this ordinance.

(2) The Governor may appoint a Registrar of the Court who shall be responsible for the administration of the Court.

Magistrates.

11.—(1) Subject to this section, the Governor may appoint any fit and proper person to be a magistrate of the Magistrate's Court.

(2) A magistrate, to be known as the Island Magistrate, shall be appointed from among the permanent residents of the Islands, who shall not be required to be professionally qualified in law but who must have been resident in the Islands at the time of his or her appointment for not less than 5 years.

(3) The Island Magistrate may exercise the jurisdiction and shall have the powers set out in Part II of the Justice Ordinance.

cap.3

(4) Magistrates of the Court, other than the Island Magistrate, shall be required to be qualified in law and to have practised in any Commonwealth country for not less than 5 years prior to the date of his or her appointment.

(5) Every magistrate shall be subject at all times to the authority and directions of the Chief Justice or other judge of the Supreme Court and shall hold [office on] such terms as the Governor may prescribe.

(Amended by Ordinance No. 1 of 2005)

[11A. (Repealed by Ordinance No. 4 of 2010)

11B.—(1) (Repealed by Ordinance No. 4 of 2010)

(2) Every magistrate shall retire from office on attaining the age of 68 years.]

(Inserted by Ordinance No. 11 of 2003)

(Amended by Ordinance No. 6 of 2005)

Criminal jurisdiction.
cap. 3

12.—(1) Subject to this section and to Part II of the Justice Ordinance, the Magistrate's Court shall have the like original jurisdiction in criminal matters as is vested by [the Constitution of Pitcairn] in the Supreme Court, save that it shall not have jurisdiction to entertain proceedings in respect of treason, piracy, murder, manslaughter, rape or arson.

(Amended by Ordinance No. 4 of 2010)

(2) In respect of any offence of which a person has been convicted before it, the Magistrate's Court shall have the power to pass such sentence on that person or make such other order in respect of him or her as may be provided in that behalf by any law for the time being in force in the Islands, save that, subject to subsection (3)—

(a) any term of imprisonment to which it sentences him or her; or

(b) where the defendant is convicted, in the same proceedings, of two or more offences and is sentenced to two or more terms of imprisonment which are to run consecutively, the aggregate of such terms,

may not exceed 7 years and any fine or other pecuniary penalty which it imposes in respect of any one offence may not exceed $20,000.

(3) The Governor may, by order which shall be published, vary the list of offences set out in subsection (1) in respect of which the Magistrate's Court may not entertain proceedings and may likewise vary the limits set out in subsection (2) on the penalties which the Magistrate's Court may impose:

Provided that an order made under this subsection shall not affect—

(a) the jurisdiction of the Magistrate's Court in any case in which the accused person was charged and remanded for trial before the publication of the order or such later date as the order may specify for that purpose;

(b) the punishment for an offence committed before such publication or such date as aforesaid.

(4) Where under any law in that behalf for the time being in force in the Islands, the Magistrate's Court commits a person to prison for default in the payment of any sum adjudged to be paid by a conviction, the period for which he or she may be so committed may not exceed 7 years (or the period for the time being substituted for 7 years under subsection (3) in respect of that conviction) or, if the sum (or the aggregate of the sums) due at the time of committal is less than the maximum fine which the Magistrate's Court could then impose under subsection (2), may not exceed that proportion of 7 years (or the period substituted as aforesaid) which that sum (or aggregate) bears to that maximum fine.

Civil jurisdiction.
cap. 3

13.—(1) Subject to Part II of the Justice Ordinance and to subsections (2) and (3) and to any law for the time being in force in the Islands which vests jurisdiction in respect of any particular matter exclusively in the Supreme Court, the Magistrate's Court shall have the like original jurisdiction in civil matters as is vested by [the Constitution of Pitcairn] in the Supreme Court other than the jurisdiction vested in the Supreme Court as a Court of Admiralty or a Prize Court.

(Amended by Ordinance No. 4 of 2010)

(2) Subject to subsection (4), the Magistrate's Court shall not have jurisdiction to entertain proceedings where the matter in dispute amounts to or is of the value of more than $10,000 or which involve, directly or indirectly, some claim or question regarding property, or some civil right, amounting to or of the value of more than $10,000:

Provided that the jurisdiction of the Magistrate's Court shall not be ousted by this subsection if the relief claimed by the plaintiff consists only of liquidated damages not exceeding $10,000.

(3) Subject to subsection (4), where, in proceedings commenced in the Magistrate's Court founded in contract or tort, the plaintiff claims liquidated damages exceeding $6,000 (with or without other relief), the defendant may, within such time as may be prescribed by rules of court, apply to the Magistrate for a certificate that some question of fact or law of general or public importance is likely to arise in the proceedings and for the proceedings to be transferred to the Supreme Court; and if—

(a) the Magistrate gives that certificate; and

(b) the defendant gives security approved by the Magistrate for the liquidated damages claimed and for the costs of the proceedings in the Supreme Court,

the Magistrate or (if the Magistrate declines to do so) the Chief Justice of the Supreme Court may order the proceedings to be transferred to the Supreme Court.

(4) The Governor may, by order which shall be published, vary from time to time the sums specified in subsections (2) and (3) by reference to which limits are set on, respectively, the jurisdiction of the Magistrate's Court to entertain proceedings and the right of a defendant to apply for proceedings to be transferred to the Supreme Court:

Provided that an order under this subsection shall not affect any proceedings instituted in the Magistrate's Court before the publication of the order or such later date as the order may specify for that purpose.

Appeal from Magistrate's Court.

14. Subject to any rules of Court made under the provisions of section 20 of this ordinance, an appeal shall lie to the Supreme Court in respect of any judgment, sentence or order of the Magistrate's Court.

Reconciliation.

15.—(1) In criminal cases, the Magistrate's Court may promote reconciliation and encourage and facilitate the settlement in an amicable way of proceedings for common assault, or for any offence of a personal or private nature not aggravated in degree, on terms of payment of compensation or other terms approved by such Court, and may thereupon order the proceedings to be stayed or terminated.

(2) In civil cases, the Magistrate's Court and the officers thereof shall, as far as there is proper opportunity, promote reconciliation among persons subject to its jurisdiction and encourage and facilitate settlement in an amicable way and without recourse to litigation of matters in difference between them.

Place of sitting of Supreme Court and Magistrate's Court

[15A.The Supreme Court and the Magistrate's Court shall sit in the Islands or at such other country or place as may be permitted by any law:]

(Inserted by Ordinance No. 14 of 2002)

[Provided that in any summary proceedings in the Magistrate's Court against a defendant present in the Islands where the Magistrate has elected to preside over the hearing from any place outside the Islands, either with or without any officer of the Court, and to conduct the hearing in accordance with the provisions as to live-link television prescribed in Part VIIA of the Justice Ordinance, the Court shall be deemed to be sitting in the Islands:

And provided in such case that the decision whether counsel should take part in the proceedings by appearing in the Islands or at the place at which the Magistrate is presiding should be made by the Magistrate after hearing all parties.]

(Provisos added by Ordinance No. 6 of 2005)

[15B.—(1) Where any person is committed for any offence to appear at any sitting of the Supreme Court or the Magistrate's Court (the Court of committal) and it appears to the presiding Judge or Magistrate of that Court that it is expedient for the ends of justice that the person should be tried for that offence at some sitting of that Court other than the sitting for trial at which he or she was committed, or at which he or she would in the ordinary course of law be tried, the Judge or Magistrate, as the case may be, either of his or her own motion or on behalf of the prosecutor or the person charged, may by order, either before or after a charge or information is filed, direct that the person shall be tried at such a sitting of the Court (the substituted Court) as he or she thinks fit, held either within the Islands or in some other country or place where the Court may lawfully sit.

(2) Any application for an order as aforesaid may be made to a Judge or Magistrate when sitting in Court or in Chambers; and it shall not be necessary for the person charged to be brought or appear in person before the Judge or Magistrate, either upon the making or the determination of the application or to enter a plea to any such charge or information in the Court of committal.

(3) The Judge or Magistrate may make any such order subject to such conditions concerning bail and the payment of the costs of the prosecutor and witnesses and of the removal of the charge or information and concerning the publication of any report or account of the proceedings in connection with the making of the order and concerning any other matter or thing whatsoever, as the Judge or Magistrate in his or her discretion thinks fit.

(4) After any such order has been made, no charge or information shall be filed in or at the Court of committal against that person for the offence.

(5) If the charge or information has not been filed when the order is made, it may be presented at the substituted Court.

(6) If the charge or information has been filed when the order is made, the Registrar of the Court of committal shall forthwith transmit to the Registrar of the substituted Court the charge or information and any bail bond, depositions, examinations or other documents relating to the alleged offence.

(7) On the making of an order under subsection (1) the Registrar shall forthwith give notice of the order to the Superintendent of any prison in which the person charged is then held.]

(Inserted by Ordinance No. 14 of 2002)

PART IIIA—APPEALS TO THE PITCAIRN COURT OF APPEAL IN CIVIL CASES

Pitcairn Court of Appeal may hear appeals from judgments and orders of the Supreme Court

15C. The Pitcairn Court of Appeal shall have jurisdiction and power to hear and determine appeals from any final judgment, decree, or order of the Supreme Court subject to the provisions of this ordinance, the Justice Ordinance, [the Constitution of Pitcairn] and to such rules and directions for regulating the terms and conditions on which such appeals shall be brought as may from time to time be promulgated by the President in accordance with [section 51] of [the Constitution of Pitcairn].

(Amended by Ordinance No. 4 of 2010)

Appeals against decisions of Supreme Court on appeal

15D—(1) The decision of the Supreme Court on appeal from an inferior court is final, unless a party, on application, obtains leave to appeal against that decision to the Pitcairn Court of Appeal.

(2) An application under subsection (1) for leave to appeal to the Pitcairn Court of Appeal must be made to the Pitcairn Court of Appeal.

(3) In this section the term "inferior court" means the Magistrate's Court and the Lands Court.

(PART IIIA: Inserted by Ordinance No. 1 of 2008)

PART IV—GENERAL

Documents and proceedings not to be held invalid except where there has been a substantial miscarriage of justice

16.—(1) No information, charge, summons, conviction, sentence, order, bond, warrant or other document and no process or proceeding shall be quashed, set aside or held invalid by any Court or quasi-judicial authority by reason only of any defect, irregularity, omission or want of form unless the Court or authority is satisfied that there has been a substantial miscarriage of justice;

(Repealed and replaced by Ordinance No. 4 of 2010)

17.—(1) Subject to this section, the practice and procedure of the Supreme Court, whether in civil or criminal matters, shall be as prescribed by rules of Court made under section 20 and subject to such rules or if there are no such rules governing the question, as the Chief Justice or other Judge of the Supreme Court may from time to time direct.

(2) Directions given by the Chief Justice or other Judge of the Supreme Court under subsection (1) may be general or may be with respect to any particular step in particular proceedings; and any party to any proceedings before the Supreme Court (including the Crown or the accused person in any criminal proceedings) and any person seeking to institute such proceedings may at any time apply to the Chief Justice or other Judge of the Supreme court for particular directions.

(3) In formulating any directions which he or she may give under subsection (2) and generally in the conduct of proceedings before the Supreme Court and of the business of that Court, the Chief Justice or other Judge shall be guided, so far as the circumstances of the Islands permit and so far as is appropriate to the circumstances of any particular proceedings in question, by the practice and procedure, in comparable circumstances, of the High Court of Justice in England or of the Crown Court in England or (where the Supreme Court is exercising an appellate or supervisory jurisdiction and if the case so requires) of the Court of Appeal in England; and in pursuing any proceedings in the Supreme Court any party thereto shall likewise (but subject always to any applicable rule of court and to any direction given under this section) be so guided.

(4) For the purposes of their application in accordance with subsection (3), the practice and procedure of the High Court of Justice in England, of the Crown Court in England and of the Court of Appeal in England shall be interpreted with such modifications, adaptations, qualifications and exceptions as local circumstances render necessary.

Court Registries

[17A.—(1) For every Court there shall be an office for the transaction of business relating to proceedings in the Court, to be known as the registry, which shall be situated at such place as the Governor, upon consultation with the Chief Justice, directs and shall be in the charge of the Registrar.

(2) Where the same person is Registrar of two or more Courts, the Governor may direct that the registry of one of those Courts shall also be the registry of any other of those Courts.

(3) Documents relating to the business of any Court may be filed at the registry by personal delivery, post, facsimile, email or other accepted form of electronic transmission [and such modes shall extend to and include any warrants, orders, directions, minutes, or such other documents as may be issued by the Court.]

(Amended by Ordinance No. 3 of 2006)

(4) Notwithstanding the appointment of a registry of any Court in another place, at the direction of the Judge or with the concurrence of any Magistrate, the Registrar may receive any letter or accept for filing any notice, document or Court proceeding whatsoever, at the Courthouse at Adamstown, Pitcairn Island.]

(Inserted by Ordinance No. 14 of 2002)

Enlargement or abridgement of time

[17B.—(1) Any Court may, in its discretion, enlarge or abridge the time appointed by this ordinance or any other ordinance or any rules made thereunder, for doing any act or taking any proceedings or step in any proceeding, on such terms (if any) as the Court thinks just.

(2) Any Court may order an enlargement of time although the application for the enlargement of time is not made until after the expiration of the time appointed.

Correction of accidental slip or omission

17C.—(1) If any judgment or order contains a clerical mistake or an error arising from any accidental slip or omission, whether the mistake, error, slip or omission was made by an officer of the Court or not, or if any judgment or order is so drawn up as not to express what was actually decided and intended, the judgment or order may be corrected by the Court.
(2) The correction may be made by the Court of its own motion or on an interlocutory application made for that purpose.

Power to amend defects and errors

17D.—(1) A Court may, either before, at, or after the hearing of any proceedings, amend any defects and errors in the pleadings or procedure in the proceedings, whether or not there is anything in writing to amend, and whether or not the defect or error is that of the party (if any) applying to amend.

(2) The Court may, at any stage of any proceedings, make, either of its own motion or on the application of any party to the proceedings, such amendments to any pleading or the procedure in the proceedings as are necessary for determining the real controversy between the parties.

(3) All amendments made under sub-sections (1) and (2) shall be made with or without costs and on such terms as the Court thinks fit.]

(Inserted by Ordinance No. 6 of 2005)

Protection of judicial officers.

18. No Judge, Magistrate, or other person acting judicially shall be liable to be sued in any Court for any act done or ordered to be done by him or her in the discharge of judicial duty, whether or not within the limits of such jurisdiction, provided that he or she at the time, in good faith, believed himself or herself to have jurisdiction to do or order the act complained of and no officer of any Court or other person bound to execute the lawful warrants or orders of any such Judge, Magistrate or other person acting judicially shall be liable to be sued in any Court for the execution of any warrant or order which he or she would be bound to execute if within the jurisdiction of the person issuing the same.

Attorney General and Public Prosecutor.

19.—(1) The functions and powers conferred upon the Attorney General of England in respect of civil or criminal causes or matters arising in England may be exercised by the [Attorney General] in respect of civil or criminal causes or matters occurring or arising in the Islands.

(2) The Public Prosecutor shall have and may exercise the functions and powers of the Director of Public Prosecutions in England.

(3) The [Attorney General], the Public Prosecutor and the Deputy Public Prosecutor shall have ex officio the right of audience in all Courts of the Islands and shall have the same protection and immunity from suit in respect of the performance of their duties as is conferred upon judicial officers by section 18 of this ordinance.

(Amended by Ordinance No. 4 of 2010)

Power to make rules.

20.The Governor may on the advice of the Chief Justice make rules of court for the purpose of carrying the provisions of this ordinance into effect and in particular for all or any of the following matters—

(a) for regulating the sittings of the Supreme Court and the Magistrate's Court and the despatch of business therein;

(b) for regulating the pleading, practice and procedure in the Supreme Court and the Magistrate's Court;

(c) for regulating the hours of opening and closing of the offices of the Supreme Court and the Magistrate's Court;

(d) for regulating the forms to be used in the Supreme Court and the Magistrate's Court and for all matters connected therewith;

(e) for regulating the receipt of money paid into the Supreme Court or the Magistrate's Court or received or recovered under or by virtue of any process of execution or distress;

(f) for regulating the payment out of the Supreme Court or the Magistrate's Court of all moneys to the persons entitled thereto;

(g) for prescribing the books and forms of account to be kept and used in the Supreme Court or the Magistrate's Court;

(h) for prescribing fees, costs and amounts for service and execution of process which may be demanded and received by officers of the Supreme Court or the Magistrate's Court in accordance with the practice and procedure of those Courts;

(i) for prescribing the manner of acceptance, retention and disposal of fees and costs;

(j) for providing for the taxation of the fees and costs of legal practitioners;

(k) for regulating the professional practice, conduct and discipline of legal practitioners;

(l) generally for regulating any matters relating to the practice and procedure of the Supreme Court or the Magistrate's Court or to the duties of the officers thereof or the conduct of proceedings therein.