The Petitions-Of-Right-Act-1860 (pdf)
8. In case of a failure on the behalf of Her Majesty, or of any such other person as aforesaid called upon to answer or plead to such petition, to plead, answer, or demur in due time, either to such petition or any subsequent stage of the proceedings thereon, the suppliant shall be at liberty to apply to the Court or a Judge for an order that the petition may be taken as confessed; and it shall be lawful for such Court or Judge, on being satisfied that there has been such failure to plead, answer, or demur in due time, to order that such petition may be taken as confessed as against Her Majesty or such other party so making default and in case of default on the behalf of Her Majesty and any other such person (if any) called upon as aforesaid to answer or plead thereto, a decree may be made by the Court, or leave may be given by the Court, on the application of the suppliant, to sign judgment in favour of the suppliant : Provided always, that such decree or judgment may after-wards be set aside by such Court or a Judge, in their or his discretion, on such terms as to them or him shall seem fit.
More at https://constitutionwatch.com.au/petition-of-right-1860/
Answer:
Clause 8 of the Petitions of Right Act 1860 outlines the procedure for cases where the Crown or other parties fail to respond to a petition in due time. Here’s a breakdown of its key points:
- If Her Majesty or any other person required to answer fails to plead, answer, or demur to the petition within the specified time, the suppliant (petitioner) can apply to the Court or a Judge for an order to have the petition taken as confessed.
- The Court or Judge, upon being satisfied that there has been a failure to respond in due time, can order that the petition be taken as confessed against the defaulting party.
- In cases of default by both Her Majesty and any other person called to answer, the Court may:
- Issue a decree, or
- Give leave to the suppliant to sign judgment in their favor
- The clause includes a proviso that such decree or judgment may be set aside by the Court or a Judge at their discretion, subject to terms they deem appropriate.
This clause essentially provides a mechanism to prevent the petition process from being stalled by non-response, while also allowing for the possibility of overturning default judgments under certain circumstances.
Answer:
The court determines if there has been a failure to plead or answer through several mechanisms:
- Timely response: The court assesses whether the defendant has responded to the pleadings within the specified time frame
- Substance of the response: The court examines if the defendant has substantially answered the points raised in the pleading. Denials must be substantial and address the point of substance
- Specificity: The court checks if the response is specific enough. Merely denying an allegation without providing further details may be considered insufficient
- Admission by default: If a defendant fails to respond to specific allegations, those facts may be taken as admitted
- Joinder of issue: The court considers whether there has been an express or implied joinder of issue, which determines what is in dispute
- Completeness: The court evaluates if the defendant has addressed all allegations. Failing to plead to a fact may result in it being deemed admitted
If the court determines there has been a failure to plead or answer adequately, it may:
- Consider certain facts as admitted
- Limit the defendant’s ability to present evidence on issues not properly addressed in the pleadings
- In extreme cases, enter a default judgment or strike out the defense
The court’s primary aim is to ensure that the issues for trial are clearly defined and that both parties have a fair opportunity to present their case.
The Petitions of Right Act 1860 was replaced by the Crown Proceedings Act 1947.
Most states have Crown Proceedings Acts.
In Western Australia it was replaced by Crown Suits Act 1947 (WA).
3 . Term used: Crown
In this Act, the term Crown means the Crown in right of the Government of Western Australia.
5 . Crown to sue and be sued as subject
(1) Subject to this Act, the Crown may sue and be sued in any court or otherwise competent jurisdiction in the same manner as a subject.
(2) Every proceeding shall be taken by or against the Crown under the title “the State of Western Australia”.
[ 6. Deleted: No. 20 of 2005 s. 8(1).]
Definition of Crown in written laws of Western Australia:
Western Australia Interpretation Act 1984
s5.Terms used in written laws
Her Majesty, His Majesty, Queen, King, or Crown means the Sovereign of the United Kingdom, Australia and Her other Realms and Territories, and Head of the Commonwealth and includes the predecessors and the heirs and successors of the Sovereign;