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

Briggs v. Colls [1828] NSWSupC 85

costs, small cases - reception of English law - Court of Requests - Supreme Court, jurisdiction - supervision of inferior courts

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 26 September 1828

Source: Dowling, Select Cases, Vol. 1, Archives Office of N.S.W., 2/3461

[p. 345]

[Where a party recovered a verdict in the Supreme Court under 10£ he shall not be deprived of his costs by reason that the cause of action was within the jurisdiction of the Court of Requests by virtue of the 4 G 4. C. 96. s.20]

Briggs v Colls

Assumsit [sic] for work and labour to recover the sum of 15£.17.2. set off to the amount of £4.6.8.  At the trial before Dowling J. on the 11th instant a verdict was found for the Plaintiff Damages £3.0.8.

Norton now moved to deprive the Plaintiff of his costs on the ground that this was a case within the jurisdiction of the Court of requests appointed by virtue of the 4 G 4.C.96.s.20. which gives that Court jurisdiction over causes of action under 10£.

Williams shewed cause

There is nothing in the 20 Section of the New South Wales act which prevents a person from suing in this Court for a for a [sic] cause of action under 10£ and there is nothing in that section which deprives a party of his costs if he recovers less than 10£ in this Court.  In the Court of Requests acts at home[1 ] there is an express provision to deprive the [p. 346] party of his costs if he tries in the Superior Courts for a cause of action within the jurisdiction of the Court of Requests.  These Courts are regulated by the acts of Parliament, creating them and therefore as there are no regulations adopted by the legislature for the government of the Courts of requests in this Colony, there is no foundation on which this application can be supported.

Norton contra Although there is no express provision in the 20th Section to deprive a party of his costs if he sues in the Superior Court for a cause of action triable in the Court of Requests, yet having regard to the peculiar regulation of the administration of justice in this Colony, the Court must by necessary intendment given such a construction to the 20th Section as shall give effect to the obvious intention of the legislature in authorising the institution of Courts of Requests with jurisdiction over causes under 10£.

Williams in reply.  A party may justly suppose when he commences [p. 347] an action that he has a cause of action above 10£.  The Court of Requests will not issue a summons for a cause of action above that amount and if he confined his demand to 10£ he may be deprived of the balance really due to him, by the Defendants pleading a sett off above the amount sought to be recovered in the minor Court.  This would be a hardship upon the party which the act will not justify.  I admit that in a case were[sic] the party's cause of action is under 10£ he would not be entitled to costs if he sues in the Superior Courts.

Forbes CJ.  The question raised in this case is whether the Plaintiff is entitled to cost, the sum which he has recovered, being a sum which might have been recovered in the Court of Requests.  It is argued on the part of the Plaintiff that there is nothing in the 20 Section of the New South Wales act which prevents this Court from entertaining jurisdiction over all courses of action without reference to the amount of the sum sought to be recovered and consequently though an action under 10£ may be [p. 348] brought in the Court of requests yet a party has his option and may bring his action in this Court for a sum under 10£ without running the risk of losing his costs.  This Court does not stand precisely on the same footing as the Superior Courts of Record at home.  The Courts in England have an ancient common law jurisdiction and have cognizance of all causes without reference to their amount, with the single exception of causes under 40/s which are considered as beneath the cognizance of the law.  It is true there are inferior courts in England created by act of Parliament for the trial of causes within those Courts by imposing something in the nature of a penalty on Plaintiffs who go into the superior Courts namely by depriving them of their costs.  The Supreme Court of New South Wales, is the creature of an act of Parliament and by the 4.G4.C.96 it exercises the like common law jurisdiction which belongs to the King's Superior Courts at home.  By that act a power is given of creating a similar court to that of the court of Requests in England for the purpose of determining [p. 349] causes of small amount.  A power is thereby also given to the Judges of this Court of making guidelines and regulations for the practice of that and other inferior Courts of the Colony.  Looking at the whole of the New South Wales Act as adopting a general System for the administration of Justice adopted to this Colony I should be inclined to construe the 20th Section as incidentally embracing the spirit of the regulations by which the Courts of Requests in England are governed.  As however there is a legislature in the Colony, which has the power of enacting proper regulations for the government of the Court of requests in this Colony, I think we are not fettered by any rules of construction which are adopted in England with reference to the Requests acts in that country and therefore I think it is better for us to confine ourselves merely to the words of the 20th Section as we find them without resorting to the rules of analogy applicable to those acts of Parliament which impose the penalty of depriving  party of his costs if he brings his suit out of the jurisdiction of the Court of Requests.

[p. 350]  I have however been a good deal struck with the argument for the Defendant and I should have been inclined to give a much more enlarged construction to the 20th Section as part of a general system for the jurisdiction, than I am now disposed to do, had not the act of 4 Ge 4.C.96. been about to expire; but under existing circumstances, I think it is better to confine ourselves to the letter of this section of the act, and say that it does not operate to deprive the Plaintiff in this case of his costs, although the action might have been brought in the Court of Requests.

Stephen J.  I think we are bound by the words of the 20 Section of the act.  They are free from all ambiguity and leave us no discretion.  It gives us no power of assimilating the Court of Requests in this Colony to the Court of Requests in England.  Those Courts are created by acts of Parliament, which enact peculiar clauses for their government.  One of those are of a prohibiting nature depriving the party his costs if he shall bring his cause of action into the Superior Courts, if the cause be properly within the jurisdiction of the [p. 351] inferior Court  having been the first Commissioner of the Court of requests in this Colony. [sic]  I had occasion to look into this subject and having considered the effect of this clause it never occurred to me that a party would be deprived of his costs if he brought his suit in the Superior Court, although it might with equal propriety be determined in the Court of requests.  I should be extremely unwilling to shut the door of this Court against a suitor who might be minded to bring his action here although the cause would come within the jurisdiction of the inferior Court.  There are many causes even of trifling amount, which involve important questions of law, and considering that the Judge of the Court of Requests may not be a lawyer, it may be highly expedient to give parties the option of trying the cases in this Court if they shall think proper however expensive that course of proceeding may be.

Dowling J.  The question in this case is whether the Plaintiff is to be deprived of his costs of suit by reason of anything contained in the 20 Section of the New South Wales Act 4 G.4.C.96; which authorizes the institution of Courts of Requests in this [p. 352] Colony.  By that Section the Governor is authorized to institute Courts of Requests "with full power and authority, to hear and determine in a summary way, all actions, plaints and suits for the payment or recovery of any debt, damages, a matter not exceeding ten pounds sterling, except the matter in question, shall relate to the title to any lands, tenements or hereditaments, or to the taking or demanding of any duty payable to the King, or to any fee of office annual rent, or other such matter, where rights in future may be bound, or to any general right or duty, and to award costs therein" &c  All that this section is to point out in what cases the Court of Requests shall have jurisdiction.  There is no prohibitory or restraining enactment depriving the Plaintiff of his costs in cases where the cause of action is under 10£ if he shall sue for his debt or damage out of the jurisdiction of the Court of Requests Acts in force in different parts of England and I find that in each there is some clause to this effect:- "That if any action or suit for any debt recoverable by virtue of this [p. 353] act, shall be commenced in any other Court whatever or elsewhere than in the said Court, the Plaintiff in such action shall not by reason of a verdict for him or otherwise be entitled to any costs whatsoever".  Finding therefore no such prohibition or restrictive enactment in this clause, I do not feel myself authorized in putting a construction upon it which the words do not warrant, for that would be usurping the office of legislation, and not exercising the judicial duty of exposition.  It appears to me therefore that although a party having a cause of action under 10£ may bring his suit in the Court of Requests, yet there is nothing in this act to prevent his recovering costs if he neglects to bring such an action in the Supreme Court.  I must say however I regret extremely that we are constrained to put this construction upon the act; but it must be left to wisdom of the legislature to remedy the evil complained of by enacting such an ordinance as shall give a more beneficial effect to the jurisdiction of the Court of Requests.

Judgment for the Plaintiffs.[2 ]

Notes

[1 ] On Courts of Requests in England, see W.H. Winder, "The Courts of Requests", (1936) 52Law Quarterly Review 369.

[2 ] The court reached the same result on similar facts in Lindsay v. Dowsett, 26 [2] September 1828, Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462, pp 5-6.

Some defendants tried to do the opposite, by splitting their claim so that in its parts it fell within the jurisdiction of the Court of Requests.  See Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462, p. 113.

Published by the Division of Law, Macquarie University