PROPERTY LAW ACT 1974 - SCHEDULE 1

PROPERTY LAW ACT 1974 - SCHEDULE 1

SCHEDULE 1 – Procedure in cases of bona vacantia

1 Procedure in cases of escheat or other like cases

When any question arises as to the title of the State to any land, or interest in land in any case of escheat or alleged escheat or of bona vacantia or alleged bona vacantia, or in the case of a grant to an alleged alien, or as to the title of the State in any other case in which, prior to the passing of the Escheat (Procedure and Amendment) Act 1891 , an inquest of office might have been held, the truth of the matter shall be ascertained in the manner prescribed in this schedule.

2 Writ of inquisition

In any such case a writ called a writ of inquisition shall be issued from the Supreme Court on the fiat of a Crown law officer, which writ shall be addressed to a District Court judge, or a commissioner of the Supreme Court for taking affidavits, and shall command the person to make diligent inquiry into the matter and to certify under the person’s hand and seal such facts respecting the failure of the heirs or next of kin of an intestate, or the alienage of a grantee, or such other facts, as may be necessary to establish the title of the State or otherwise.

3 Return of writ

The writ of inquisition with the certificate shall be immediately returned into the office of the Supreme Court at Brisbane, Rockhampton or Townsville, as the case may be, and any person aggrieved by the certificate shall be entitled to traverse or object to it, in such manner and within such time as may be directed by rules of court, and in the absence of any such rules within 1 month after the return of the writ.

4 Writ to be returned before new grant made

No grant shall be made of any land alleged to be escheated or to have become bona vacantia until after the writ of inquisition and the certificate finding the title of the land has been returned into the office of the Supreme Court, and the time for traversing the same has expired.

5 Effect of certificate

Except as this schedule or rules of court otherwise provide, the certificate shall be conclusive evidence of the facts stated in it.

6 Saving

The proceedings upon a writ of inquisition shall not prejudice any rights which at the time of the death of the person that led to the issue of the writ were vested in some other person.

7 Procedure when waiver by the Crown

(1) If at any time not later than 2 months after the making of an instrument under section 20 waiving the title of the State to any property, any person claiming any estate or interest in or to the property requests that a writ of inquisition in respect of the State’s title be issued, and gives security to the satisfaction of a Crown law officer for the costs of the issue and execution of such writ, such writ may issue under this schedule and the instrument waiving the right of the State shall cease to have effect from the date when it was made.

(2) If the title of the State to the property is established by a certificate returned under this schedule, then, at any time after the time for traversing such certificate has expired, a further instrument (which may or may not differ from the previous order in council) waiving the right of the State may be made under section 20 (5) but no further request may be made under this clause.

(3) If an instrument is made waiving the right of the State to any land or interest in land clause 1 shall be read subject to this clause save that a writ of inquisition at the instance of the Crown may issue at any time.

8 Power to regulate procedure with respect to escheats to the Crown

(1) Rules of court may be made prescribing and regulating the procedure of the court on and incidental to writs of inquisition and consequential on the holding of inquiries under such writs.

(2) The rules of court may prescribe that any questions of fact arising upon any such inquiry shall be determined by a jury, and may prescribe the number of jurors, and may direct that any provisions of the laws relating to juries shall apply to such juries and jurors.

10 Interpretation

In this schedule—


"a Crown law officer" means and includes the Attorney-General and the solicitor-general.