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Decisions of the Superior Courts of New South Wales, 1788-1899

Hook v. Paterson, Foveaux, Atkins [1810] NSWKR 3; [1810] NSWSupC 3

false Imprisonment - Magistrate, action against - statute of limitations - appeal - rum rebellion

Court of Civil Jurisdiction
Bent J.A., 23 March 1810
Source: Court of Civil Jurisdiction Proceedings, 1788-1814, State Records N.S.W, 5/1103 (case no. 97)[1]

[34] Charles Hook esq. against Colonel William Paterson, Colonel Joseph Foveaux, Richard Atkins esq., Edward Abbott, Anthony Fenn Kemp, Robert Fitz, Charles Throsby, John Cummings and Francis Lewis esquires, James Mason, Henry Crause, William Masters and Charles Withers gentlemen.

Actions for false imprisonment, damages ¿10,000. Colonel Paterson appears by Major Abbott. Colonel Foveaux absent from country. Richard Atkins esq., ... appearance is entered for him. John Cummings writ not served upon him. Robert Fitz esq. the rest of the defendants appear in their own person.

Plea not guilty.

The court considering that all the defendants except Colonel Paterson, Colonel Foveaux and John Cummings esq., which two last are out of the jurisdiction of the court, are protected by the statute 24 Geo. 2, c. 24, s. 8 which enacts that all actions against magistrates must be commenced within six months from the act committed, and that there is no proof of malice on the part of Colonel Paterson, so find a verdict for the defendants.

[35] Mr Hook gives notice of appeal.

Note

[1] Shortly after his arrival, Governor Macquarie proclaimed that the use of civil litigation against the rebel judiciary was forbidden except where there were further grounds of complaint beyond the illegality of the courts themselves. Hook had also failed to sue within the statute of limitations despite the impossibility of him complying with that requirement.

This is one of the major cases brought as a consequence of the coup against Governor Bligh in 1808, but one in which the plaintiff lost his action. On appeal, Governor Macquarie confirmed the decision of the Court of Civil Jurisdiction: Proceedings of the High Court of Appeals, 10-11 April 1810, State Records N.S.W., 4/1724 (called Hook v. Atkins and others ).

Shortly after his arrival, Governor Macquarie proclaimed that the use of civil litigation against the members of the rebel courts was forbidden except where there were further grounds of complaint beyond the illegality of the courts themselves. He did not want convicts who had been flogged to flood the courts.

Hook had also failed to sue within the Statute of Limitations despite the impossibility of him complying with that requirement.

For the criminal trial of Hook by the rebel Court of Criminal Jurisdiction, see R. v. Palmer and Hook, 1809. See B. Kercher, Debt Seduction and Other Disasters: the Birth of Civil Law in Convict N.S.W., Federation Press, Annandale, 1996, 39-40, 104.

Published by the Division of Law, Macquarie University