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

In re Nowlan (1828) Sel Cas (Dowling) 762; [1828] NSWSupC 50

supervision of inferior courts, certiorari, magistrates, liability as to costs

Supreme Court of New South Wales

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

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

[p. 201]

[In re Timothy Nowlan]

In this case Sampson SG, admitted that the conviction could not be supported and on the motion of Dr Wardell the proceedings were ordered to be staid the Crown paying the applicants costs, which the Solicitor General undertook to do on the part of the Crown.[2 ]

This conviction of the Defendant was ordered to be quashed no opposition having been made and now the Magistrates were ordered to pay the costs Dr Wardell.

In consequence of the interruption respecting the case of Rex v Nowlan the Court upon being informed that the order for the payment of Costs by the Convicting Justices had not [p. 202] been delivered out of the office, directed that such order should not be issued without the further order of the Court.

In consequence of the intimation of the Court that the magistrates ought not to pay costs, of the erroneous conviction in this case

Dr Wardell urged that the Defendant was entitled to costs as against the Justices, the proceedings against the Defendant being wholly groundless, and he likened this case to those cases where the Court ordered costs in Criminal informations but

Forbes CJ (with the concurrence of Stephen J and myself[3 ]) said,

There is a manifest distinction between this case, and those cited by the learned Council.  The Court is anxious to have it understood that in the case of Rex v Nowlan the Court did not itself make any order upon the convicting Justices to pay any [p. 203] costs.  When case was mentioned the Counsel for the Crown stated that the proceedings against the Defendant must be abandoned in as much as the convicted had proceeded when [sic] the evidence of an informer, and and [sic] an undertaking was given on the part of the Crown that the Costs of the proceedings should be paid, probably in order to avoid further steps against the Magistrates in consequence of the illegality of the conviction.  To this arrangement the Court was no party, and the matter passed sub silentio,[4 ] and without any consideration of the legal liability of the Justices to pay costs.  The case went off in that way for the purpose probably of preventing either an action for damages or a motion for a criminal information the Crown Officers, or those who appeared on behalf of the Magistrates knew more of the merits of the case than the court possibly do in as much as the [p. 204] merits were not gone into.  All that the court is now anxious about is to clear itself from the impression of having judicially decided that the party was legally entitled to costs against the magistrate the cases cited by Dr Wardell from Chittys crown law, were properly divided [sic] but all those cases related to the liability to pay costs upon motions for criminal informations against Magistrates or private individuals, but there is a manifest distinction between the liability to pay costs upon an application for a certiorari to return proceedings before justices.  In cases where a certiorari is granted, the magistrates act judicially and the object of the motion is to return the proceedings before them.  Before a certiorari goes the party applying for it enters into a recognizance to pay costs in the event of his failing to have the [p. 205] proceedings quashed   this is clear law and has been decided by many cases, and the Doctrine is founded upon sound principle, in as much as the object of the application is to quash the proceedings from some defect of form, and not in substantial justice.  The magistrate is in these cases the Judge and he is in no case personally liable to pay costs.  The authorities upon this point will be found collected in Hullock 603   the cases in Chitty apply entirely to criminal informations and shew that the Court has a discretion in awarding costs against Justices even though these be not enough to warrant the application for an information, the case of an application for a certiorari is wholly different.  The Court is therefore of opinion that the Court cannot award costs against the justices in this case.

Costs refused.


[1 ] From its position in the Select Cases, it is likely that this was the date of the hearing.

[2 ] Nowlan had been convicted before the magistrates at the Hunter River, of selling liquor without a licence.  Dr Wardell argued that the conviction was unsound because there was no date on the summons, that Nowlan's wife had sold the wine, if anyone, and that the conviction had been obtained on the unsupported evidence of  an informer.  The key point may have been the description of Nowlan as a "respectable settler".

See also In re Bardsley, May 1828; and see Sydney Gazette, 16 February 1828, which was apparently the same case.

[3 ] This refers to Dowling J., on whose notes this report is based.

[4 ] Under silence.

Published by the Division of Law, Macquarie University