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

Willink v Moore [1825] NSWSupC 1

law reporting - assumpsit - statutes of limitations - reception of English law - English attitudes to New South Wales courts - conflict of laws

Supreme Court of New South Wales

Forbes C.J., 8 January 1825

Sources: Australian, 1 July 1826; Morning Chronicle, 26 September 1825

 

(From The Morning Chronicle, September, 26.[1 ])

 

The following case, lately decided in the Supreme Court of New South Wales, is reported as very important to Merchants in England who have any debtors or mercantile connexions in that Colony, where a general feeling has evinced itself amongst the honest inhabitants, on many occasions, to keep in the Colony all the money they can, to the prejudice of their just creditors here.  We know very little of Mr. Forbes, the gentleman who presides as sole Judge, at this place, or where he has acquired his great legal knowledge, excepting that it may have been at Newfoundland, where he is said to have presided as Judge for a considerable length of time.  We must, however, say, that he is extremely popular in New South Wales.  It is to be remarked, that none of the Colonial Newspapers made any report of the trial; but it is, at the same time, to be observed, that the defendant had held a situation in the Courts of Law at that place.

D. Willink, Esq, against J.J. Moore, Gent. - This was an action of assumpsit on common promises, and was brought to recover the sum of 200l. due from the defendant to the plaintiff.  In the year 1812, the defendant gave the plaintiff his acknowledgement for this sum, &c. &c. &c.  The defendant kept entirely aloof from the plaintiff from this moment, and about three years after took his departure from England for New South Wales, where through the interest of some friends, he obtained an appointment of Registrar, and afterwards of Prothonotary, or Clerk to the Supreme Court.  In 1821, the plaintiff having ascertained what had become of the defendant, wrote to a professional gentleman in the Colony to apply to him for his just and reasonable demand of 200l.  A considerable delay took place in procuring the requisite legal evidence of the demand, to go into a Court of Justice with.  This did not arrive in the Colony until February 1824, and in consequence of the great alterations which were taking place in the officers and practice of the Courts consequent on the new Charter of Justice, the cause could not be brought before the Court until December of that year, when the defendant pleaded and relied on the Statute of Limitations alone as a defence.  The pleadings on the part of the plaintiff, in answer to the Statute Limitations, set out the fact of the plaintiff being beyond seas (i.e.) in England, at the time the action accrued, and had not since been within the jurisdiction of the New South Wales' Courts.  The defendant rejoined, that he was also in England at the time the cause of action accrued, and that no action had been commenced or prosecuted within six years - to which the plaintiff answered, that the defendant had left England about three years after the cause of action accrued; that the plaintiff was not bound by the laws of the realm to bring his action within a less period of time than six years, and that the defendant had absconded long previous to the expiration of such six years.  On the part of the plaintiff, it was urged - first, that the Statutes of Limitations were never meant by the Legislature to apply to the Colonies, and that they were, by the wording of the Statutes themselves, confined to England, and the parts within the four circum adjacent seas.  That, secondly, supposing the statutes to have effect in ordinary cases within the Colony, they should not apply in the present case, because they must operate in the Colonial Courts in the same way that they do in the Courts at Westminster, and one of the exceptions in the statute is, that of the plaintiff being beyond seas at the time of the action accruing.  It was further urged that the Statutes of Limitations never, in any case, have been suffered to work an injury to any set of men, that they were salutary and beneficial acts for quitting pretended long outstanding and trumped-up demands.  That the Courts in England always gave them an equitable construction suitable to the construction of the case; that if they were to be constructed according to the strict letter of the acts neither a new premise nor a case of fraud should exempt any demand from their operation, both of which circumstances, as well as many others of a similar nature, it was every day's practice to [?]ce contrary decisions on.  That if these acts were held to apply to the present case, it would work a most serious injustice, not only to the present plaintiff, but to all merchants who had any dealings with the numerous persons who had lately come to the Colony, as it was next to impossible for any merchant in England to ascertain to what place his debtor had flown; and after having ascertained it, to forward the necessary proofs of his demand, to so distant a place in sufficient time* for the action to be brought before the six years should have expired.  Amongst other cases cited, and the one particularly relied on, was, that of Williams against Jones, tried in the Court of King's Bench, May 7th, 1811, and the whole of the arguments there urged, were made use of in the present case.  It is cited at some length in 13 East, 439, and seems to be as similar to the case in question, as any two can possibly be, and in which Lord Ellenborough, C.J., Mr. Justice Grose, and Mr. Justice Bayley (Mr. Justice Le Blanc being ill and absent), all concurred in opinion that the Statutes of Limitations did not apply.  In the present case, Mr. Forbes, Chief Justice in New South Wales, gave judgment for the defendant, without alleging any other reason than that the opinions given by Lord Ellenborough and Judges Grose and Bayley, in the case of Williams v. Jones, were not law, and that what was a legal act in one country, where that act was done or committed, must be held to be legal in any other country where the same act comes to be investigated or inquired into, and on that principle he decided this case.

* This report left Sydney on the 19th March, 1825, and arrived here the 17th September, so that that the transmission of any document required, or a letter containing an answer, might be obtained in about a year. 

 

 

Source: Australian, 1 July, 1826.[2 ]

 

We should only half perform our trust, were we to omit observing towards the article headed New South Wales - Law, the same treatment which we applied to an article inserted in our last, and derived from the same quarter - the Morning Chronicle.  The Report of the trial Willink v. Moore, is quite as mischievous as the former article, only of a much more insidious character.  The former tended to destroy the political reputation of the Colony; this, levels a blow at the Courts - that was calculated to repress the spirit of emigration, this to shake the confidence of commercial men in the decisions of the Law; and while it was represented by one species of fabrication, that turbulence and disorder reigned among the Colonists; it is by another impressed on the minds of the English Merchants, that the Chief Justice is both incompetent and unjust; that he would rather sacrifice his judicial integrity than forego the pleasures of an ill-earned popularity; and that, instead of administering the Law with equability, he prefers lending himself to the evasions of unprincipled debtors[.]

The Morning Chronicle is constrained to admit (or probably his Correspondent does so for him - for the commentary, as well as the account of the trial, in our opinion proceeds from the same pen), that the Chief Justice "is extremely popular in New South Wales."  We should have thought that the Chief Justice, or any one else filling his niche in society, with extreme popularity, would not have become the object of a wanton attack, even from a disappointed suitor, or a disappointed suitor's friends.  But among a rookery of "democrats" and "rogues," it was perhaps imagined, that it would be quite consistent for a Judge to be a democrat and a rogue also; and, that the more he resembled one or other, or both of these, the better he would be liked.

We did not report this trial when it took place - it was an accidental omission.  It so happens, however, that we are able to furnish the Morning Chronicle with an accurate version of it.  Perhaps, when it reaches him, through the medium of this Paper, he will transcribe it for the benefit of those, his Report of the 26th of September 1825 may have misled.  He will be pleased also to remember, that "Mr. Forbes, Chief Justice of New South Wales," did allege other reasons "than that the opinions given by Lord Ellenborough, &c. were not Law:" that Mr. Forbes gave those reasons at more than usual length, and from written notes.  There was a full Court at the time.  Professional men were there, and at least one hundred spectators.

The Morning Chronicle should also be told, as his Correspondent has been rather negligent in this particular, that on behalf of the plaintiff an appeal was entered; but that no further steps were subsequently taken.  Lawyers probably recommended an abandonment of the appeal; and disappointment suggested a bespattering of the Judge in the Morning Chronicle.

Between the case (13 East, 439) which is represented in the Morning Chronicle "to be as similar to the case in question, as any two can possibly be," and the case of Willink v. Moore, there is at least this difference.  The contracting parties in the former case were beyond seas at the time the contract was entered into, and therefore literally fell within the saving in the Act which reserves the right to sue, even after the expiration of six years, to those who are beyond seas.  The contracting parties in this instance however resided in England when the contract was made - resided in England when the debt became due; the defendant continued there for three years, at the commencement of which time, the provisions of the statute had begun to take effect.  Had he resided in England three years longer, he could not have been sued - had he returned to England after the expiration of the second three years, he could not have been sued.  Could it then rationally be held, that the plaintiff should do that here, under those circumstances which he could not do in England; or, that by the residence of defendant in New South Wales, the plaintiff would be in a better condition than if he had resided in England.  If such a principle were held to prevail, every creditor who for some reason or other had refrained from suing his debtor for six years, and who had thereby lost his remedy, might pursue the latter to this Country after a lapse of twenty or thirty years, find his remedy revived, and recover his debt in the Colonial Courts. - Monstrous!

But here follows a report which approximates rather nearer to the truth.

 

IN THE SUPREME COURT, NEW SOUTH WALES -

(JANUARY 8, 1825)

WILLINK v. MOORE.

 

Action of assumpsit to recover the sum of £300.  Plaintiff declared that the defendant undertook and promised to pay, &c.  Defendant pleaded the statute of limitations.  Plaintiff replied that at the time of the undertaking, &c. he was beyond seas (to wit, in London.)  Defendant rejoined that he also was in London at the time of the supposed undertaking.  Plaintiff sur-rejoined, that although defendant was in London at the time of the undertaking, yet he departed before the expiration of six years from such time.  Defendant demurred generally, and plaintiff joined in demurrer.  On this day the case came on for argument, and judgment was delivered to the following effect:-

By the Chief Justice - It has been made a material question in argument, whether the statute of limitations (21 Jas. 1.) does or does not apply to this Colony, as a part of the general law of England.  But the true point of inquiry is, not whether the statute of limitations can be applied, but whether this Court can judiciously take cognizance of a particular law of England, as applicable to a case, arising in England, without such law being specially pleaded, as in the case of a foreign custom, applicable to a foreign contract.  I think that the Court may take notice of such law of England ... [sic] for the laws of England are the laws of this Colony; this Court is bound to apply them in every case which arises within its jurisdiction; and it would be absurd to require special proof of laws, which it is ex officio bound to know and to apply.  The question then is, what is the law of England as applicable to such a case as the one now before the Court?  It is, that all actions, like the present, must be commenced within six years next after the cause of such actions accruing, and not after.  Now, to apply this law to the case, the Defendant became indebted to the Plaintiff in a certain sum, upwards of six years before any action was commenced; at the time the cause of action accrued, and for some time after, both parties resided in England, where the debt was contracted, and no proceedings were instituted for the recovery; the Statute of Limitations, therefore, had began to operate, and the subsequent departure of the Defendant, will not take the case out of its operation.  This point of Law has been so often decided, that it is unnecessary to insist upon it - indeed it is admitted by the Plaintiff[']s Counsel, that if the parties had both been in England at the time of commencing this action, it could not have been supported in Westminster Hall.  But it is contended that although the present action could not have been maintained in England, where it accrued, it may be maintained in New South Wales, where it has happened to be tried; and it is so contended, upon the authority of a case decided by the Court of King's Bench in England (Williams v. Jones, 13 East. 439)

This is certainly an alarming proposition; for this Colony is peopling every day by emigrants from England, and if this Court is liable to be called upon to re-open, from an indefinite period of time, transactions which have been long since foreclosed by the laws of the Country where they took place, and from whence all the evidence must be drawn, it is not very easy to foresee any termination to its labours.  But this cannot be seriously proposed - it is a principle of natural justice, that whatever may be the law of the case, where it arose, shall be the law where such case may come to be tried - the laws of the place must be taken into consideration in every case of contract; they enter into and form an implied and essential part of every undertaking - this principle is broadly recognized by the law of England, and so scrupulous have been our Courts in enforcing it, that they have refused to admit as evidence any instrument of contract, which has not been executed according to the forms and solemnities required by the law of the country where it was made.  It has been argued that the case of Williams and Jones rather trenches upon this principle of inter-national law.  To the decisions of the Court which determined that case, this Court is in the habit of yielding almost implicit deference - but I may be permitted to observe, that that case was decided upon a literal application of the Statute of limitations to England, and part of the reasonings, a convenienti, upon which it founded, does not apply here.  It certainly has impressed itself on my mind, that the Statutes of limitation were intended by Parliament as local laws, confined in their operation to causes of action arising in England - the saving of the Statute in favor of parties who at the time of the cause of action were beyond seas, and afterwards returned, is evidently intended to protect the interest of persons out of the Country where the action accrued, that is, out of England - the nature of some of the actions which are saved by the Statute, as Replevin for example, which is an action strictly local, shews that the Statute was meant to be local - the Legislature of England cannot well be supposed to have intended a law to govern contracts, and even trespasses to real property, arising out of England - it is more natural to suppose that it intended to make a local act, and to leave the general principle of Law untouched - it is upon that principle that I must place the humble Judgment of this Court, and decide, that as the Statute of Limitations would have been a bar to the present action, if it had been tried in England, where the cause arose, so it must be a bar to the same action in New South Wales.

Judgment for Defendant.

 

Notes

[1 ] This was an English newspaper; the reference is to an issue of 26 September 1825.  The extract from the Chronicle was published by the Australian on 1 July 1826.  The Sydney paper, the Monitor suggested on 22 September 1826 that the author of some of the anti-New South Wales articles in the Chronicle was the former judge of the colony, Barron Field.

[2 ] The Australian then proceeded to give its own version of the law report, with commentary, as follows.

Published by the Division of Law, Macquarie University