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

Raine v. James [1829] NSWSupC 89

injunction - equity procedure, delays - equity rules - tobacco

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 28 December 1829

Source: Australian, 31 December 1829

In the matter of Raine v. James, Mr. W. Wentworth, on the part of the plaintiff, contended that the injunction of the Court, which had lately been dissolved, was effected irregularly, because the master's report had not been conformed to, first nisi, and then answerable, according to the rules of practice.[1 ]

Mr. Norton, in reply on the part of the defendant, said he was surprised at the objection raised by Mr. Wentworth, because to him it betrayed a want of knowledge of the practice in the Courts of Chancery, a misapprehension on which the learned Counsel had rested the weigh of his argument, and that he considered the present motion was merely to obtain delay, by which his client had already sustained considerable loss, as a writ for 4400l. had been lying over in the Sheriff's Office for a period of nearly three years and a half.

Mr. Justice Stephen said, that if there were irregularities on one side, there were greater irregularities on the other, and that although he had had considerable practice in the Courts of Chancery, both at home and abroad, he had never seen such a master's report, for out of twenty-six exceptions, five only had been allowed.

The Chief Justice said the case must be brought before the Court in a more regular manner.

 

Forbes C.J., Stephen and Dowling JJ, 31 December 1829

Source: Australian, 2 January 1830

THURSDAY.

The three Judges being also in banco today, in the matter of

Raine v. James, Mr. Wentworth proceeded to shew cause against the rule obtained on a late occasion, observing that the affair had been alluded to in one of the Public Newspapers of the Colony, from week to week, and month to month, setting forth the hardship under which the defendant was considered to be labouring, and no doubt, and the Learned Counsel thought, with the intention of biasing the Public opinion in defendant's favour; whereas it was the plaintiff who had cause to complain, for on inspection of the accounts between the parties, rendered by the defendant, it would be seen that out of the sum total for sundries amounting to £4450, not one item specified the quantity of any article supplied, which was taking an undue advantage of his (the Learned Counsel's) client, on whom the whole weight of the hardship rested.  The defendant also had not answered the complainant's bill, but he trusted their Honors would teach the leeches who were dregging the vitals of the Colony, that there was a Court where their tricks could prove of little avail.  Mr. Wentworth then read several extracts from the bill filed by the complainant, and the defendant's answers thereto, demonstrating that in several parts the defendant had failed to answer fully, alleging that there was the grossest appearance of fraud on the very face of the bill, and expressing his hope, that the Court would find no difficulty about interposing its authority, and ordering a continuance of the injunction.  This is but a brief epitome of Mr. Wentworth's speech.  The Learned Gentleman was five hours upon his legs.

Defendant's Attorney, Mr. Norton, in reply, urged his hope, that if their Honors thought proper to continue the injunction, they would order the sum claimed to be paid into Court, but he felt confident they would resolve rather upon its dissolution.

Mr. Chief Justice Forbes said, his Learned Counsel and himself would adjourn the Court to eleven o'clock next day, in order to give the case their most anxious and deliberate consideration.

FRIDAY.

Mr. Chief Justice Forbes delivered the opinion of the Court at one o'clock, in the matter of Raine v. James, deciding that it was proper to dissolve the injunction obtained in this case, but that the sum of £1456 should be detained in the hands of the Sheriff till an account of the transactions between the parties subsequent to the date of the securities should be brought before the Court.

 

Notes

[1 ] This is part of the tobacco litigation, on which see Raine and Ramsay v. Piper, 1825; Raine and Ramsay v. Balcombe, 1827.  For a preliminary hearing in this particular matter, see Sydney Gazette, 15 December 1829: Norton moved to dissolve an injunction to stay proceedings in the case.

The Australian commented on another case in this series on 2 January 1829, in which the plaintiffs were merchants and the defendant the Acting Collector Comptroller of Customs.  The Supreme Court declared that the governor had no power to make a retrospective proclamation placing a duty on tobacco which had been imported two months before the proclamation.  The governor's power to impose duties came from a local Act, but the legislation did not sanction retrospective duties.  (For the judges' view of the legality of tobacco duties, see Campbell v. Rossi, 1829.)

The Sydney Gazette, 13 October 1829, complained about the very long delay.  It said the judges were concerned about it, and planned to make rules to avoid delays in chancery suits.  See also Sydney Gazette, 28 November 1829.

Published by the Division of Law, Macquarie University