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

Ex parte Mathews [1827] NSWSupC 24

certiorari, audi alteram partem, injunction, Court of Requests, supervision of inferior courts

Supreme Court of New South Wales

Forbes C.J., May 1827

Source: Sydney Gazette, 16 May 1827

We understand that an injunction has been issued from the Supreme Court, to stay proceedings in a case lately decided by the Commissioner of the Court of Requests.  The application was made by petition to HIS HONOR the CHIEF JUSTICE, supported by the affidavit of Mr. D. D. Mathews, who was defendant, as we are informed, in the case of the decision in which the petition complains.  The grounds of the application to the highest tribunal in the land, are said to be, tha[t] only one witness was examined on the part of the plaintiff, and that not on oath!  And also a refusal on the part of the Commissioner to hear any evidence for the defendant, though the same was at hand, ready to be examined.  Upon this statement, made on affidavit, HIS HONOR the CHIEF JUSTICE has granted the injunction prayed for, which stays all proceedings on the verdict, until the whole of the case is brought before the Court by certiorari, when the quashing of his decision will, at least, prove to his very learned Honor the Commissioner, that "audi alteram partem"[1 ] is a maxim in the British Jurisprudence which he is not quite at liberty peremptorily to set aside.  The course of proceeding which Mr. Mathews has adopted, is the only one that could be resorted to, which is calculated to let in the whole merits of his case; for, though it is erroneously supposed that a verdict of a Court of Requests in this Colony is final, still, it should be understood, that such only is the case where no illegality can be alleged in the course of the proceeding; as otherwise, writs of certiorari lie from all the inferior Courts.


[1] To hear the other side.  The obligation to listen to the cases of both parties.

Published by the Division of Law, Macquarie University