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

In re Bardsley (1828) Sel Cas (Dowling) 757; [1828] NSWSupC 24

supervision of inferior courts, certiorari, costs, magistrate, liability as to costs, magistrate, action against, liquor laws, witness, competency when interested

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 1 May and 5 July 1828

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

[p. 83]

[Thursday 1st May.]

[In re. Jonathan Bardsley.-]

[See local stat.6.G.4. (No.4) 8th Feby 1825.- p. 67. of Coll.]

Before a full Court.

Rowe moved for a rule calling on the magistrates at Paramatta to shew cause why a certiorari should not issue to bring up the proceedings before them upon an information against Jonathan Bardsley for selling spirituous liquors without a license.  Notice of motion had been given to the Justices below.  The objections to the proceedings were various, but he relied upon two; first, that in [p. 84] the copy of what purported to be the record of conviction, it did not appear that there had been any information against the Defendant; and second, it did not appear that he had been summoned; but thirdly, it did not appear that the conviction was founded upon competent evidence for it would seem that the magistrates had acted upon the evidence of the informer.

The Court granted a rule to shew cause.

It was further sworn that there had been no copy of the summons served on the defendant.  A copy had indeed been read to the Deft's. wife.


see notes Vol.3.p. 13.[1 ]


[p. 184]

[Trustees are not liable to pay costs, upon quashing a conviction returned to this Court under a


Saturday 5 July 1828

Forbes CJ and Dowling J present

In re Jonathan Bardesley[2 ]

On the day 1st May last, Rowe obtained a writ of certiorari for the purpose of bringing up a conviction of the Defendant on the local act 6 G4./No41 8 Feb 1825 for selling spirituous liquors without a licence.  After various postponements,

Rowe now moved that the return to the certiorari be read and that the conviction be qualified for insufficiency.

Bagster AG now appeared on behalf of the convicting justices, and suggested that no return had been made by them in asmuch the conviction had been founded on the evidence of the informers whose testimony the Justices had [p. 185] erroneously received conceiving it admissible.

This was a mere error in judgment and finding that the conviction could not be supported, he consented on their behalf that it should be quashed: but he hoped under such circumstances that the Court would not award any costs.

Rowe insisted that the Court ought to order the Justices to pay the costs

Dowling J desired to know on what authority the Court was bound to award costs.  The Magistrates were no parties to this proceeding.  They were set in motion by the informer and if the law allowed it, the informer ought to pay the costs.

If the Justices acted erroneously, the utmost that the Defendant could have of the Court was to have the conviction quashed but not with costs as against the Magistrates.  If they were guilty of corruption [p. 186] or of error the law provided a remedy in the first place by Criminal Information; or in the second by an action on the case.

Rowe urged that the Magistrates had proceeded to enforce the penalty after the certiorari had been served upon them; and therefore this was a continuancy which ought to subject them to costs.

Dowling J Still the remedy in that case is by attachment for contempt but the Court has no authority to order them to pay costs.

Rowe said that the Court had granted costs against the Magistrates in the case of a person named Nowland the other day in a similar case.[3 ]

Dowling J  I believe that case was not similar to this in its circumstances.  There at all events the point had not been discussed; and the Court cannot be bound by a decision [p. 187] improvidently made without consideration.  In that case there was a consent on the part of the Crown that the costs should be paid possibly to prevent any further proceedings against the magistrates.

Forbes CJ desired time to consider of the point till Monday next.

And now the Court gave Judgment

Forbes CJ  The defendant was convicted before the Justices at Parramatta on the 29th March last, of selling spirits without a licence, contrary to the ordinance of the local legislature.  Upon bringing up the proceedings, under the rule granted in this case, it appeared that the conviction was founded upon the evidence of the informer who had an interest in the penalty and consequently became incompetent to give evidence in support of the conviction. The conviction itself has therefore been set aside for the irregularity of the proceedings, and the failure of [p. 188] proof to sustain it.  An application has since been made to this Court, to allow the defendant his costs on removing the proceedings of the Justices into this Court.  This application is new and untenable in every point of view.  The text law is briefly laid down as follows:- If the party who enters into the recognizance and removes the judgment of the Sessions succeeded in obtaining the Judgment of the Kings Bench, He is not entitled to receive costs; his recognizance is however in such case discharged as a matter of course.

But if he fail in the Court above, and his rule be there discharged, he must pay costs as taxed by the master and the Court will not discharge his recognizance until the costs have been paid.

The principles upon which the law is laid down are too clear for any doubt.  At common law costs were [p. 189] not allowed to either party, and in the case of the King, or where his Majesty's name is used for the prosecution, the law so remains at the present day except in particular cases, where costs are expressly given by statute   In cases similar to the one before the Court, the law has interposed to prevent vexatious delays of justice in removing convictions and other summary proceedings before justices of the peace upon trivial grounds, and as a means of effecting this purpose has provided that before any certiorari shall be allowed the defendant shall enter into a recognizance with sureties to prosecute such certiorari to effect, at his own costs and charges, and in failure thereof to pay to the adverse party such costs as the Court shall award.  This recognizance is the foundation of the prosecutors right to have his costs.  It derives its force from the express terms [p. 190] of the statute but the statute in terms confines it to the prosecutors costs, and the Court has no power to award costs to the defendant should he succeed in quashing the conviction in this court.  If he be damnified, he has his remedy in another way but it is not within the power of this Court, to give him the costs attending his application to remove the proceedings of the Justices before it.  The present application for costs, therefore must be dismissed.  It has been stated that after the writ of certiorari had issued from this Court, and been delivered to the justices, a warrant of distress was granted by them for the recovery of the penalty imposed the Defendant by them   I trust that this statement has been made under some misapprehension and that the fact is not so   the writ of  [p. 191] certiorari is a high prerogative writ and it is a contempt in any one of His Majestys Subjects to disobey its injunctions.  It issues exclusively from the Kings Supreme Court its effect is immediately to suspend all the proceedings of inferior tribunals so that if any further judicial act be done, such act is not only absolutely void in itself, but the magistrate renders himself liable to an attachment for contempt.  In throwing out these remarks we intended them as cautionary.  We will not assume that there has been any act consciously done by the Justices in the case before us, tending in any way to show disrespect to this Court.

This Court has always inclined to support the authority of the Justices.

It has repeatedly assured them, that were [sic] they act within their jurisdiction and discharge their duties to the best of their judgment it will strain every nerve to uphold them in the [p. 192] exercise of their functions.  The law has promised in many ways for the security of the Magistrates.  In this Colony it is peculiarly the duty of this Court to put the most liberal interpretation upon their proceedings, and whenever it finds that they have acted fairly in the honest discharge of what they deemed right it will support their acts to the utmost power of the law.

It may not be amiss to add a word respecting the required notice of any intended motion in this Court to bring up their proceedings.  The object of this notice is "to the end that the justice or the parties conceived may shew cause against the granting of the certiorari" (13G.2.c.18.s.5)   This notice is usually served upon one of the Justices of the Session; but regularly such Justice [p. 193] ought to send it to the prosecutor in order that it may be apprized of what is intended and be prepared to shew cause against the issuing of a certiorari if he should think proper.  The Magistrate is not necessarily bound to sustain the conviction.  He is bound to return his proceedings, but it is quite discretionary with him whether he will appear and defend the conviction or leave it to the parties concerned.  With these remarks we shall dismiss the present application for costs.

Stephen J expressed his concurrence with the Chief Justice.

Dowling J   This was an application for a writ of certiorari to be directed to certain magistrates at Parramatta requiring them to return into this Court the record of the conviction of one Jonathan Bardsley for selling spirituous liquors without a licence contrary to the Colonial act 6.Geo.4.No.4.  On a former day the Attorney [p. 194] General appeared on behalf of the Magistrates and stated that they had under a misapprehension, founded their conviction upon the evidence of the informer, and that consequently the conviction must be quashed.  The learned counsel for the defendant then prayed that the conviction be quashed accordingly withcosts to be paid by the Magistrates.  I was then of opinion that this is not a case in which the Justices below can be called upon to pay the Defendant his costs.  The convicting Magistrates are no parties to the proceedings.  They are merely set in motion by the informer and are bound in the discharge of their Magesterial duties to take cognizance of the complaint exhibited to them.  If the Justices act either from corrupt motives in convicting the party, or exceed their jurisdiction a remedy is open to the party aggrieved.  In [p. 195] the one case, if the Justices act corruptly they are liable to a criminal information in this Court, and in the other, if they exceed their jurisdiction, they are liable to an action on the case for damages.  In this case it is suggested that the justices have fallen into an error, which is fatal to the conviction.  The utmost therefore that the party can call upon the Court to do, is to direct that the conviction be quashed.  In cases of this nature, the defendant before he can have a certiorari to remove a conviction must by force of the Statute 5Geo.2.C.19.s.1. enter into a recognizance to pay the prosecutor his costs and charges.  In the case of Rex v Glossop EJ.2G.4.-1821 it was held by K.B. that the provisions of this statute apply to defendants and not to prosecutors.  So that a conviction be affirmed by the Court above the Defendant is liable to pay the prosecutor [p. 196] his costs, but in the event of its being quashed, the liability to pay costs does not attach upon the prosecutor, it being deemed a sufficient advantage to the Defendant to get rid of the effect of a conviction which is bad merely in point of form.  This conviction could have been quashed only on the ground of some defect of form, this court being concluded by the finding of the Justices as to the merits.  No authority is to be found for allowing the defendant costs upon quashing a conviction defective in form, when returned into this Court by Certiorari; and certainly no instance was ever heard of where the justices under such circumstances, were called upon to pay Costs for erroneus convictions It is said that in the recent case of [p. 197] a person named Nowlan the Justices below were ordered to pay costs upon an erroneus conviction under the like circumstances with the present case.  The merits of that case were certainly not gone into, nor was the point brought under the notice of the Court.  If therefore the Court inadvertently gave its sanction to such an order, it was because it was immediately acquiesced in by the Counsel for the prosecutor.  There may have been some very peculiar circumstances in that case which induced the Counsel not to meet the question, in order perhaps to prevent the necessity of other proceedings against the Magistrates.  However that may be, the Court does not now feel itself bound by an order not solemnly or maturely considered and into and which it may have been Suprized without regard to the consequences of such a decision; and I for one [p. 198] shall be prepared to consider, if it shall become necessary, whether that order may not be rescindedquia improvide emanuit.   Regard being had to the responsible and laborious duties of Magistrates, who bestow much of their time, gratuitously to the service of the public, I should certainly not be deposed to impose upon them the burthen of paying costs for a mistake in point of form, of for an error in judgment arising from inexperience in the technical rules of law.  But in this case, there is no rule of law which would authorize us in compelling the Magistrates personally to pay the costs of this proceeding.  The law is strong enough to punish Magistrates criminally if they act from corrupt and improper motives and it equally affords a mode of redress to a party aggrieved by any excess of their jurisdiction. [p. 199] Although it is the duty of the Magistrates to obey the exigency of a writ of Certiorari when directed to them (and if they do not they are liable to punishment by attachment) yet their obedience to the writ does not bring them personally before the Court so as to subject them to costs, in the event of their proceedings being quashed as soon as the writ is served, I take it to be their duty to give notice to the party interested that such writ has been delivered, and after obeying its mandate, they have done all that is required of them, and it is for the prosecutor to appear if he thinks proper to support the legality of the conviction.  In this respect, it should be understood that the justices are free from personal responsibility to pay costs in the event of the conviction being quashed.  I have therefore no hesitation in holding that the present application for costs as against the [p. 200] Magistrates is untenable and contrary to all principle.

Costs refused.[4 ]


[1 ] This reference is to the full collection of 248 notebooks of Dowling J.  They are collected in the Archives Office of New South Wales as "Proceedings of the Supreme Court of New South Wales 1828-40", reference 2/3184-396, 2/3400-33.  In this part of the case, the records in theSelect Cases are a duplicate of those at Vol. 3, 2/3186 pp 13-14, with only minor grammatical differences between the two.

[2 ] See also Sydney Gazette, 9 July 1828.

[3 ] See In re Nowlan, 1828.

[4 ] In similar circumstances in 1829, a man named Corr was convicted of selling spirits without a licence.  He was committed to prison for non-payment of the fine, and the conviction was quashed by the Supreme Court.  His counsel, Rowe, moved that costs be awarded against the magistrate as there was presumptive evidence of malice.  The Supreme Court held that it had no power to award costs in a case of certiorari, and that the remedy was an action at law against the magistrate (Sydney Gazette, 15 December 1829).

Published by the Division of Law, Macquarie University