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

In re Hayes (1828) NSW Sel Cas (Dowling) 548; [1829] NSWSupC 17

convict rights - convict service - press freedom - law reporting


Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 21 March 1829

Source: Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462

[p. 175] [The Court has no summary power of relieving a party whose assigned servant has been as alleged unlawfully taken from him.]

In re Hayes

Mr Hayes the printer, publisher and proprietor of the Australian Newspaper applied to the Court complaining on Affidavit that two of his assigned servants had been taken from him without any cause suggested and without any complaint on the part of the servants.  One of them had been taken whilst in the very act of reporting the proceedings of this Court for his paper.[1 ]  The other had been taken out of his house by a Constable without any warrant or other authority whatever.  He therefore applied to the Court for relief for the unlawful detention of his servants who were now kept from him.

Forbes CJ after conferring with the other Judges said.  So far as your right of property in the in the [sic] services of your assigned servants is concerned, that is a private right for which you have a legal remedy if it has been illegally invaded.  In this respect we can afford you no summary relief.  With reference to the [p. 176] fact which you now state, that one of your servants was taken whilst in your service engaged in taking down minutes of the proceedings of this Court, we have only to observe that if such circumstance had been brought under the notice of the Court at the time, we should have immediately dealt in a very summary form with all persons concerned who so far forget a sense of respect for the dignity of this Court, in presuming to arrest a person in the face of the Court whilst he was peaceably occupied in his lawful vocation.  The Court however was not aware of the nature of the transaction at the time, or it would have assented its own dignity in punishing all persons concerned in so great a contempt.  This was an indignity which the Court would have immediately punished in the form in which the application is now submitted to the Court, we can grant the party no relief.  It concerns a private right which [p. 177] must be determined in a regular course of judicial proceeding.




[1 ] See Australian, 13 March 1829, which stated that he was removed from court by the verbal command of the Principal Superintendent of Convicts.  He was allowed to "go upon his own hands, on condition of not returning to the service of his former master". This was obviously part of Governor Darling's campaign against the opposition newspapers; see R. v. Hayes, 1829.  See also Australian, 20 and 24 March 1829.

See also In re Tyler, 1829, concerning a servant of Hall, the editor of the Monitor.  Hall, like Hayes, was subject to attack by Governor Darling in 1829, through the removal of servants and libel prosecutions.

The most important case of this kind was In re New, 1829.  The British law officers eventually disagreed with the view taken by the Supreme Court.  In the meantime, Hall and Hayes both sued the magistrates who had acted against them: see Hall v. Hely 1830; Hall v. Rossi and others, Magistrates, 1830; Hayes v. Hely, 1830.  For  summary of these events, see footnote 1 in In re Tyler, 1829.

Hayes' servants were subsequently removed, and he was unable to obtain any others.  He also complained that Governor Darling arbitrarily refused to make land grants to him, when others in his position obtained them: Hayes to the Secretary of State for the Colonies, 3 January 1832, Mitchell Library, A 1267-13, CY 773, pp 1103-8.

Published by the Division of Law, Macquarie University