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

R. v. Fitzgerald [1829] NSWSupC 46

magistrate, action against - supervision of inferior courts - liquor laws

Supreme Court of New South Wales

Banco hearing, 27 June 1829

Source: Sydney Gazette, 30 June 1829[1 ]

Sitting in Banco

Criminal information.

Dr. Wardell rose to move for a rule to shew cause why a Criminal Information should not be filed against John Fitzgerald., Esq, a Magistrate of the Territory, residing in Argyle, for maliciously refusing to grant a licence to keep an inn, to Mr. William Bowman, of the same district.  The learned Counsel stated that he grounded his application on the affidavit of Bowman himself, as well as on several others, from which it would clearly appear that the defendant was actuated by malice.  The present applicant, about three years since, resided in Sydney, and carried on the trade of a weaver.  Having ceased to follow that occupation, it was suggested to him by various friends that the road through Argyle being then becoming much frequented, establishing of an inn would prove a profitable speculation.  The then Governor Sir Thomas Brisbane, on being applied to, readily granted a license; and having expended a considerable sum in the erection of spacious premises furnished with every necessary accommodation, the applicant continued to conduct his inn to the general satisfaction of his immediate neighbours, and of every individual who had occasion to put up there, until the latter end of December, in the last year, when a dispute took place between him and Mr. Fitzgerald, out of which the Court would clearly perceive the present proceedings arose.  One evening, in the month of Dec, about half past 8 o'clock, the applicant was entertaining a party of visitors, who were enjoying a jug of porter, and making no disturbance whatever, when Mr. Fitzgerald, accompanied by two or three of the mounted police, came in and ordered the house to be cleared.  The persons present being free people, and conducting themselves in an orderly manner.  Mr. Bowman expostulated with Mr. Fitzgerald on the hardships of being obliged to turn out his customers at that early hour in the evening, when that gentleman conceiving himself insulted, told Bowman, if he presumed to use such language to him, that he would commit him to gaol.  Bowman replied that he had no intention to insult Mr. Fitzgerald, but observed that if persons were to be turned out of his house in that that way, he might as well shut it up.  Mr. Fitzgerald refused to attend to any such representations, desired the policemen to clear the house, and upon Bowman persisting in his complaints of what he considered unjustifiable conduct, ordered him off to prison, where he remained the whole of the night, and the following morning found bail to appear at the Sessions.  Here, however, the matter dropped; no proceedings were had at the Sessions, but from that period the most unmitigated hostility to the applicant was continued on the part of Mr. Fitzgerald.  Sometime after this, at the usual period for granting licences, the applicant applied in the customary manner for a renewal, when Mr. Fitzgerald used every means in is power to prevent his obtaining that indulgence; and though Mr. Atkinson of Oldbury, the only other resident Magistrate in the district, sanctioned the application of Mr. Bowman, and refused to accede to the representations of Mr. Fitzgerald, who repeatedly declared that he never would consent to his being licensed still he was unable to obtain the necessary preliminary certificate of the district constable, from an apprehension of offending Mr. Fitzgerald.  Mr. Bowman then applied for a summons calling on the district constable to come forward and state his reasons for withholding the certificate in open Court; but upon this occasion Mr. Fitzgerald, who was on the Bench, behaved in the most intemperate manner towards the applicant, refused altogether to accede to his request, and upon his remonstrating with him on the line of conduct which had been pursued toward him, not only had the applicant turned out of the Court, but sent a constable after to remove him from under the verandah of the Court-house, where he was standing, outside.  Dr. Wardell here read the affidavit of Bowman, setting forth the foregoing facts, the certificate of the other resident Magistrate (Mr. Atkinson) stating that he considered him a proper person to hold a licence, and also affidavits from reveral [sic] respectable landholders in the neighbourhood, bearing testimony to the orderly manner in which the inn had been conducted since its establishment, and representing the great inconvenience to which travellers and others were subjected owing to the want of such an accommodation on the road, there being no other house of the kind within a considerable distance at either side.  The learned Counsel submitted that, upon the affidavits just read, sufficient grounds appeared to warrant the Court in granting the rule applied for.

The Court was of opinion that enough had been shewn, to induce it to grant this rule prayed for, in order that the Magistrate might have an opportunity of answering the several allegations on the part of the applicant.

Rule nisi granted, returnable on the first day of next term.



[1 ] See also Australian, 30 June 1829.

Published by the Division of Law, Macquarie University