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

Keith v. Carter and Robson (1828) Sel Cas (Dowling) 729; [1828] NSWSupC 32

civil procedure, urgent relief

Supreme Court of New South Wales

Forbes C.J. and Dowling J., 10 May 1828

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

[p. 146]

[The 13th Rule of Court[1 ] does not apply to ordinary cases but those only where justice might be defeated by parties leaving the Colony after cause of action and before a trial could be had. Here the parties were resident in the Colony.]

 

Saturday 10 May 1828

Present Forbes CJ & Dowling J.

Keith v Carter & Robson

Dr Wardell aplied for two writs against these defendants, to be returnable at an early day, in consequence of the pressing nature of the case, and the injury which the plaintiffs character was likely to sustain by taking the ordinary steps prescribed by the practice of the Court.  He founded his application on the 13th rule of Court and produced the affidavit of Mr Keith stating in substance that the Sheriff and Robson had respectively propagated reports that he (Mr Keith) as the attorney of Michael Mahony had aided assisted in the escape of the latter after he [p. 147] had been arrested, and that in consequence of such reports, his (Mr Keiths) character would sustain irreparable prejudice before the actions which he intended to bring against these persons for slander, could be tried in the ordinary course of proceeding.  He distinctly denied the slanderous matter.

The Court thought that the case did not come within the spirit of the rule of Court alluded to because that rule contemplated cases where justice might be defeated by persons leaving the Colony after cause of action arose, but before a trial could be had.

In this case there could be no pressing necessity for allowing writs to issue returnable at short dates because it was not suggested that the parties complained of were likely to leave the settlement before Justice could be obtained. [p. 148]  Dowling J. alluded to another ground for refusing the application that if it were granted nisi it would be answered on affidavits and then the Court would in effect be trying the merits of the case on affidavit, which was contrary to all rule.

Rule Refused.

Notes

[1 ] Rule 13 provided for a minimum number of days between the issue of process and its return, but if there were insufficient days before the next return day "and it shall be made to appear, to the satisfaction of the Chief Justice, or any judge of the said court, that the case is urgent, or that material injury may be sustained by delay, then, and in such case, the said judge may, under such terms as shall be deemed equitable, allow such process to be made returnable on the first day in the next ensuing term".  Source: J.M. Bennett and A.C. Castles, A Source Book of Australian Legal History: Source Materials from the Eighteenth to the Twentieth Centuries, Law Book Co., Sydney, 1979, 60.

Published by the Division of Law, Macquarie University