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

Gavin v. Loane [1821] NSWKR 12; [1821] NSWSupC 12

Charter of Justice - Van Diemen's Land - Lieutenant Governor's Court, jurisdiction - Supreme Court, jurisdiction

Supreme Court
Field J., 4 September 1821
Source: Sydney Gazette, 8 September 1821[1]

This day Mr. Justice Field pronounced the following judgement touching our Charter of Justice:
"In this action, which was tried at Van Diemen's Land, the defendant pleaded the jurisdiction of the Lieutenant Governor's Court in bar; to which plea the plaintiff, instead of denying that the cause of action was under £50, demurred generally. The Court gave judgement for the defendant upon the demurrer; for it is clear that the Governor's and Lieutenant Governor's Courts being exclusive jurisdictions may be pleaded in bar, and if the plaintiff meant to rely on my printed opinion, that such a plea under our Charter of Justice should lead to the jurisdiction and not in bar, he should have demurred specially, and assigned reason for that opinion for cause. The issue of fact was then suffered to go on to trial, and the plaintiff recovered only £30, although he shewed cause of action for above £50. Mr. Wylde, for the defendant, now moves to set aside the execution upon this verdict and to restore the fruits, upon the ground that his judgement in demurrer went to the whole cause of action; but I am of opinion that, as he should have entered his judgement on the record at Van Diemen's Land, and not have suffered the issue of facts to be tried to the plaintiff had paid his costs and amended his pleadings, this Court ought not to set the plaintiff's execution aside, after our return from the circuit, but ought to permit the plaintiff to amend the record now, upon payment to the defendant of his costs of a judgement on demurrer, of the amendment, and of this application."
By the Court. Rule discharged, upon the above terms.


[1] Judge Field presided over the Supreme Court, while the Judge Advocates at Hobart and Sydney presided over the two civil courts of limited jurisdiction, the Governor's and Lieutenant Governor's Courts. What was the jurisdictional relationship between these courts? See also Supreme Court of Civil Judicature, Judgment Rolls, 1817-1824, State Records N.S.W., 9/2231 (no. 410); Gavin v. Tims , 1821 above; and see Marsden v. Howe , 1818 above.

Published by the Division of Law, Macquarie University