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

The Schooner Darling (1829) NSW Sel Cas (Dowling) 911; [1829] NSWSupC 94

prohibition - customs duties - admiralty - navigation laws - reception of English law - civil procedure - quo warranto - qui tam - locus standi

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 29 December 1829

Source: Dowling, Proceedings of the Supreme Court, Vol. 30, Archives Office of New South Wales, 2/3213[1 ]

[p. 22] Dowling J.-  This was an application for prohibition to restrain Thomas Oliver, an officer of H.M's Customs from proceeding in the Vice Admiralty Court of this Territory against the Schooner Darling for an alleged breach of the Customs laws.-

The only proceeding adopted by the pursuer in this case has been to sue out a warrant.  There has been no libel filed, nor any other like formal proceeding.  Upon looking into authorities I find that until libel filed the application for a prohibition cannot be granted.  This is distinctly laid down in Saheld 35. 2. Ld Raymond 931. & 6 Mad 11.  To ground this proceeding there ought to be a suggestion setting out the proceedings in the Admiralty Court Smart v Wolf T.R. 323.  Until this has been done I apprehend the motion for a prohibition is premature, & on that short ground I think we ought not at present to grant the application.

[p. 23] This preliminary objection would have relieved us from the consideration of the other points raised in the argument, first as to the applicability to this Colony of the Statute 6. G. 4. C. 108 recited in the warrant for seizing this vessel; & second as to the jurisdiction of the Vice Admiralty Court in a cause of forfeiture for the breach of the Navigation and Customs Laws, but as these two questions have been pressed upon out attention, we do not apprehend that any prejudice will arise from an intimation of our opinion upon them.

With respect to the first point it has been suggested to us that the ground of this proceeding is that the Schooner Darling had violated the provisions contained in the 13th Section of the 6 G 4. C. 108 by which it is enacted ``That if any vessel or boat whatever shall be found within the limits of any part of the United Kingdom with a cargo on board, & such [p. 24] vessel shall be found afterwards light or in ballast, and the Master is unable to give a due account of the Port or place in the United Kingdom where such vessel shall have legally discharged her cargo, such vessel or boat with her guns, furniture, ammunition, tackle and apparel shall be forfeited."  Now it is quite obvious that this section must be confined in its operation to offences of this kind committed within the limits of any port in the United Kingdom and consequently cannot be construed as applying to a case arising in New South Wales.  All the provisions of the Smuggling Act 6 G. 4. C. 108 have reference to the customs of the United Kingdon, and as it appears to me cannot be extended to the local customs of this part of HM's dominions.  I am by no means to be understood, however, as intimating that the offence [p. 25] alleged to have been committed by this vessel may not be [?] by the customs laws or regulations applicable to this territory.  It is sufficient for the present to intimate that that statute is not in force in this Colony.  The pursuer will adopt such other course as he shall be advised.-

Then as to the more important question, namely whether the vice admirality [sic] Court of this Colony has jurisdiction in this matter, (supposing the pursuer proceeds upon laws or regulations applicable to the customs of this Colony) it appears to me we are bound to hold that it has. 

By s. 3 of the 6 G. 4. C. 114. ``An act to regulate the trade of the British possessions abroad" it is enacted ``that if H.M. shall see in it expedient to extend the provisions of this act to any port or ports not enumerated", in a table set forth in the act ``it shall be lawful for H.M. by order in Council to extend the provisions of this act to such port or ports," & from & after this day mentioned in such orders in Council [p. 26] all the privileges & advantages of this act, & all the penalties & forfeitures therein contained shall [?] & construed to extend to any such port or ports respectively as fully as if the same had been inserted & enumerated in the said table at the time of passing this act." - This act we find has in fact been extended by order in Council to this Colony.- of April 1827.

By the 57th section of that act ``all penalties and forfeitures which may have been heretofore or may be hereafter incurred shall & may be persecuted, sued for, & recovered in any court of record or of vice admiralty having jurisdiction in the Colony or plantation where the cause of persecution arises."

Now the question is whether by force of this clause the vice admiralty court of this colony has jurisdiction over offences committed against the revenue of Customs.

[p. 27] This is a mere matter of construction, & I confess it appears to me that it must be read as giving the Crown the alternative of preceding within this court or in the vice admiralty as the law advises the of the Crown shall be minded.  I am bound to admit that by force of this clause the superior courts of record, & the vice admiralty court in this colony have a concurrent jurisdiction, I apprehend we can not restrain the Crown in electing the court in which it shall proceed.

We cannot enter into any consideration of the expediency or inexpediency of confining the [p. 28] determination of questions of this nature to the jurisdiction of this Court, where they may be tried in a manner conformably to the rules & practice of the common law.  It may be more beneficial to the subject to have such cases tried in this court, but as the crown has by its prerogative & by the words of the act of Parliament a right to elect which court it shall proceed in, however disposed we might be to act on considerations happened to be favourable to the subject, we are constrained to hold that this is a case in which prohibition would not be, even if there had been a libel & suggestion properly laid before us.-  Whatever disadvantages under which the subject may be supposed to labour in this mode of proceeding [p. 29] they are compensated by this consideration, that if any injustice shall be done in the vice admiralty Court, the proceedings being upon paper, the whole matter may be submitted to an appellate jurisdiction.  This advantage would not be gained if the whole matter were submitted to the jurisdiction of this Court, where the proceedings are oral, & if injustice were done the party supposed to be aggrieved would not have the same beneficial course open to him of submitting his case to a higher tribunal.

For the reasons however first suggested, I think this application is premature.

Rule discharged.

Minute of the Chief Justice's opinion on the foregoing case.-

Forbes C.J. This was an application for a prohibition to restrain Thomas Oliver from proceeding in the Vice Admiralty Court of this Colony against the [p. 29] Schooner Darling for a breach of the 6 Geo. C. 108.

There is no doubt that this Court is vested with the power granting remedies of this nature, not only by virtue of the 9G. 4. C. 83. but by the common law, as an incident of that controlling power which the Kings Superior Courts of Record have over inferior jurisdictions.  2 Chalmer's opinions 207. Le Caur v Eden Doug. 394. 

In this case two questions were raised for our consideration.

The first was whether there were sufficient grounds laid before us for a prohibition in this particular case.

In the early periods of our history there was a good deal of jealousy entertained by the Common law Courts, of what were considered Foreign Courts.  By the law of England the Admiralty Court is treated as a foreign Court, inasmuch as it is governed by the law of nations, & its mode of proceeding is different from that of the Courts of Common law.

[p. 31] The confinement of these Courts within their proper jurisdiction was certainly an object of just jealousy.  In modern times however, this matter is so well understood that a question scarcely ever arises in which the boundaries of their jurisdiction become the subject of any difference of the opinion.  Indeed it is hardly to be presumed that any judge of a foreign Court in the present day competent to the discharge of his high office, would so far forget his duty to the law of the land, as to endeavour improperly to enlarge the jurisdiction of his Court.

If in this case I might be allowed to allude to individual or personal considerations, I should desire that this & all cases that might be tried within the Vice Admiralty jurisdiction should be brought before this court, for I have here the benefit of my learned Brother's Cooperation, who with their united labours would enable me to discharge my duty more satisfactorily to myself, and at the same time divide with me the responsibility of any error in the proceedings.

[p. 32] Personal considerations I must however disclaim in the determination of this case.  I must look at it as a great question of general importance in the administration of Colonial law, namely whether the Vice Admiralty Court of this Colony has jurisdiction in revenue causes.

The principle, upon which the Courts of Westminster Hall grant prohibition is distinctly laid down by Buller J. in Lord Camden v Howe 4 T.R. 397.  That learned judge there says, ``And in such questions the only point for our consideration is, whether the Court to which the prohibition is prayed, has a jurisdiction over the subject.  Whatever may have passed in the several cases upon this subject in the last century, the grounds for granting and refusing prohibitions are now clearly defined.  If the Court below have jurisdiction over the subject, though they mistake in their judgment, it is no ground for a prohibition, but it is only matter of appeal."  The same principle is recognized & fortified in the judgment [p. 33] of Lord Loughborough in Grant v Gould 2 St. B. 69.

Taking the doctrine to be clearly settled, that where there is no excess of jurisdiction, a prohibition will not lie, if the matter be properly one within the cognizance of the inferior court, the general question here is, whether the Vice Admiralty Court of New South Wales has jurisdiction in questions arising on the revenue laws.

In support of this jurisdiction, it was contended that it was clearly established by the 57th Section of the 6 G. 4. C. 114.  ``An act to regulate the trade of the British Possessions abroad."  On the other hand it was contended (if I apprehend the argument rightly) that as the jurisdiction in cases of this nature was primarily greater to the Courts of Record, or Vice Admiralty Courts, a liberal interpretation ought to be given to the first branch of the alternative, so as to confine the jurisdiction to this Court, which unites within itself the powers and jurisdiction of the Court of Exchequer at home, and that inasmuch as there is in this colony a Court of Record having jurisdiction in revenue [p. 34] causes, & that as the admiralty has cognizance only where there are no Courts of Record, the vice admiralty jurisdiction in this Colony must by necessary implication be ousted.-  I do not however conceive that that is a tenable argument.  The 57th section of the 6 G. 4. C. 114 is copied from the 49 G. 3. C. 107.  That act was confined in terms, before the passing of the 6 G. 4. C. 114 to all the foreign possessions of the Crown of Great Britain.

The clause is in these terms, ``That all penalties & forfeitures which may have been heretofore or may be hereafter incurred, shall & may be prosecuted, sued for & recovered in any court of record or of vice admiralty, having jurisdiction in the Colony or plantation where the cause of prosecution arises."

Now I apprehend it will not be denied that after the passing of the 49 G. 3., Courts of Vice Admiralty in the foreign plantations have exercised jurisdiction over revenue causes, although in the same plantations there were Courts of record which exercised a jurisdiction similar to that of the Courts of Westminster [p. 35] Hall.  It is unnecessary to refer to many authorities on the point.  However I will mention one or two instances.  In Howards reports of cases decided in the Vice Admiralty Court of Halifar in which Sir A. Croke (an eminent Civilian presided) p. 186 a cause of forfeiture for breach of a revenue law was tried in January 1816.  The reports of Mr Stewart, who was Solicitor General, are of acknowledged accuracy.  This decision took place long after 1809 when the 49 G. 3 was passed, and it never occurred to any one that that Court had no jurisdiction; & it is matter of history that there are in that country Superior Courts of Record having like jurisdiction with the Courts of Record in Westminster Hall.  In Dodsons admiralty reports p. 311 there is a decision upon an appeal from the vice admiralty court of Tortola in a cause of forfeiture, which took place in 1811 before Lord Howell, & it never occurred to that learned judge that there was any doubt of the jurisdiction of the Court below by virtue of the 49 G. 3.-  The decision below took place after the passing of the act, & it is known [p. 36] that in Tortola there are Courts of record exercising similar jurisdiction to that of the Courts of Westminster.

Speaking of my own experience which I venture to say has been considerable, when I presided in the vice admiralty Court of Newfoundland, in which there is a Supreme Court of Record, I constantly exercised a jurisdiction in the admiralty jurisdiction in revenue causes by virtue of the 49 G. 3. in the same way as before the passing of that act.  It never occurred to me nor to anybody else that the jurisdiction of the Vice Admiralty was ousted by force of that act.

These cases silently shew at least that the vice admiralty Court did not cease its jurisdiction in taking cognizance of revenue causes after the passing of that act, & they affirm that the Court had jurisdiction to do so.

It is in the nature of a prohibition to restrain an inferior Court on the ground that the matter of which assurance is claimed over not properly belong to it.  It cannot be said to lie [p. 37] where there is a concurrent jurisdiction.  For instance magistrates assembled in quarter Sessions have concurrent jurisdiction with the King's Bench for breaches of the peace, and other offences against the laws of police, but no prohibition would lie to them in a matter in which they have a concurrent jurisdiction with this Court.  If there be a concurrent jurisdiction in the Vice Admiralty Court with this Court, it is at the election of the informer in which he will sue.  Without debt, the Attorney General may by the ancient common law elect the Court in which he shall proceed if the Court he sues in has jurisdiction over the subject matter.  It is the right of the Attorney General to do in the Vice Admiralty Court what he might do in a Court of Common law.  It is in his power as the Great law officer of the Crown to elect in what Court he will proceed. -  The question then is whether the vice admiralty Court of this Colony has jurisdiction in the present case under the 6 G. 4. C. 114 s. 57.  In order to determine that question I will lastly look at the [p. 38] revenue laws in force before the passing of that act.  In fact that act does little more than collect together the disjeeta membra of the laws previously in force for regulating the trade of the foreign plantations.  The navigation acts embrace two main subjects, -  the import & export trade of the Mother Country.-  The first statute was that of Charles 2d.  Next came the 7 & 8 W. 3. C. 72 containing the two prohibitory clauses 2 & 7.  It contains regulations as to the mode in which trade shall be carried on - that ships shall be English built, & navigated according to the laws.  In the opinion of Lord Northey 2 Chalen. 190. that act refers not only to all future possessions but to such as may hereafter be acquired by the Crown of Great Britain in Europe, Asia & America.  The case of Wilson v Harvy alt 8 T. R. 31. & 1 B. & P. 430. decides that the navigation & plantation laws extend to all the British Colonial Possessions, from time to time as they may be acquired.  New South Wales being a plantation [39] in Asia if falls within the general rule that where a plantation is acquired or settled by the Crown of Great Britain in Asia, the Vice Admiralty Court has jurisdiction for breaches of the navigation & plantation laws.  Under the authority of 7 & 8 W. 3. C. 22 this jurisdiction was exercised in the West Indies & America.  Under that act the like jurisdiction would have been given to the Vice Admiralty Court of this territory had any question of this kind arisen before the passing of the 6 G 4. C. 114.  It is however to be observed that until the passing of the 53 G. 3. C. 155 none of his Majesty's subjects could have traded here direct from the Mother Country without a licence from the East India Company.  For the first time that act gave a common right of coming to certain parts of Asia, within specified degrees of latitude & longitude.  The next important act is the 5 T R 3. C. 1. which in fact contains the foundations of the present laws of the Colony.  It enabled his Majesty by order in council to regulate the trade in such a way as his Majesty should think fit, & to impose penalties for the breach of any such regulation.  That act [40] has undergone some partial alterations in its provisions, but it is in terms incorporated into the act I am about to mention.  - So stood the law of the Colony before the great era within the last few years, when some of the ablest men of the time revised the whole of the customs laws & brought them together into one great volume, directing their attention first to the trade of the Mother Country, & then to the trade of her foreign possessions.  In fact their object was to regulate a new what was the law in the plantations & colonies.  This was the great object in view in passing the 6 Geo. 4. C. 114.  By s. 73 of that act it is enacted ``That it shall be lawful for His Majesty by & with the advice of His Privy Council, by any order as orders in Council to be passed from time to time, to give such directions & make such regulations touching the trade & commerce to & from any British possessions on or near the Continent of Europe, or within the Mediterranean Sea, or in Africa, or within the limits of the East India Companys [41] charter (except the possessions of the said company) as to His Majesty in Council shall appear expedient and salutary; & if any goods shall be imported or exported in any manner contrary to any such order of His Majesty in Council, the same shall be forfeited, together with the ship importing or exporting the same."  - Now in April 1827 an order in Council bearing the stamp & authority of His Majesty was issued extending the provisions of this act to this Colony. - The 57 section directs all penalties & forfeitures under the act to be prosecuted & recorded in any Court of Record or of Vice Admiralty within the colony or plantation having jurisdiction therein & where the offence shall have been committed.  Taking this altogether it is clear that this act of the 6 G 4. C. 114. is in force in this Colony quoad the mode of proceeding for penalties & forfeitures.  It first regulates the trade of His Majestys Colonies in the West Indies, America & the Mauritius in detail, but by filling up the name of New South Wales.  There is a corpus juris applicable to this Colony. 

[p. 42] An allusion has been made to the controlling authority of the 6 G 4. C. 108 by operation of the 9 G 4. C. 83. which declares all laws in force in the Mother Country at the time of the passing of that act shall be in force here as far as the circumstances & condition of the Colony will admit.  I cannot think that the 9 G 4. C. 83 at all affects the question although the latter act is posterior to the former, when we look at the subject matter.  The 9 G. 4. C. 83 is copied from the 4 G. 4 C. 96.  The 6 G 4. C. 114 was passed as part of a great scheme of national policy for the administration of the revenue laws throughout the whole of the British Colonies.  It is possible that hitherto no case has arisen in which this question could have been determined.

There is one peculiarity in the administration of the revenue laws in the Colonies, that the Governor of the Colony may stay proceedings in the Court for a revenue seized for a breach of the revenue laws; [43] if he shall see fit.  This may appear an anomaly, but he has undoubtedly this authority, & he may transmit them to be determined by the King in Council,  whereas by the common law he has no authority to stay proceedings in a Court of Record, when once the Court has taken cognizance of the matter.  Herein there is a great advantage to the party, because the above record of the proceedings in the Admiralty Court is transmitted; whereas the Court of Common law can only transmit the declaration or information and plea, without shewing the evidence or the grounds upon which the decision is founded.

It appears to me therefore that in every point of view in which I can regard this case, that it was not the intention of the legislature in passing the 9 G 4. C. 83 to interfere with the national code enacted by the 6 G 4. C. 114. - This is a point too clear for argument.

With respect to the operation of the 6 G 4. C. 108 in this Colony [44] it is quite manifest that it is not in force here.  It is utterly irreconcilable with the 6 G 4. C. 114.  One was passed for regulating the home trade & customs dues of the Mother Country, whereas the other has reference, as a code for the regulation of the trade in the Colonies & foreign plantations of the kingdom.

Without having given any decided opinion upon this point, it appears to me that this application is made too soon.  It is premature, being founded largely on the [?] for seizing the Darling Schooner, whereas it has been solemnly decided that the prohibition will be before libel filed in the inferior court.  Lalle. 33.

Stephen J. concurred with his brethren in thinking that the application was made too soon, but declined giving any opinion upon the other points not having made up his mind upon the subjects.

Prohibition refused.

 

Vice Admiralty Court

Forbes C.J., 18 February 1830

Source: Sydney Gazette, 20 February 1830[2 ]

 

Court of Vice Admiralty.

THURSDAY, - Feb. 18.

The King v. The Schooner Darling.

Mr. Therry applied to the Court this morning, that the second default be pronouned against the schooner Darling.  The parties had been cited conformably to the directions of His Honor; no appearance had been entered; and under these circumstances he submitted, that, on the part of the Crown he was entitled to have the second default pronounced.

The Judge - As the parties have been duly served, the Marshal's certificate of service returned, and no appearance entered; it is pronounced in this cause that the second default be incurred.

Mr. Rowe - I really am amazed at the proceedings.  This is the first intimation we have had of them.  I had understood that Mr. Foster and Mr. Therry had arranged between them, that the proceedings should be suspended until Mr. Foster's return to town.  There was an amended affidavit in the cause to which I believe it was Mr. Foster,s intention to object.  What I am anxious for is, that my client Mr. Noble may not be taken by surprise.

The Judge had interposed, and explained the nature of the practice in proceedings in the Vice Admiralty Court.  The proceedings in this case were in rem, that is, against the ship.  The warrant was served upon the vessel, and it was competent for the owner of the vessel to come into Court and object to what had been done; but they must first enter an appearance before they obtain a locus standi in Court. - As to the defaults which had been moved they were the processory courses necessarily precedent upon a decree of sale.  It was usual that four of these defaults should be pronounced; after any of which appearance might be entered, and the claim of the owners contested.

Mr. Rowe - All that I desire is, that Mr. Noble might not be alarmed by entertaining a supposition that by these steps that have been taken, the forfeiture of the vessel might be concluded.

Mr. Therry - There is no need of such alarm, and I assured Mr. Rowe that there was not.  He may enter an appearance at any time before the four defaults and decree of sale be pronounced.  He has referred to an arraugement [sic] between Mr. Foster and myself.  That arrangement was to this extent only, that during his absence at Quarter Sessions, I would not expedite the case, so as to shut him out from the opportunity of entering an appearance, - I have not done so.  If Mr. Foster's presence be so indispensable as the learned gentleman considers it, it is competant for him to apply that the day for pronouncing the third default be postponed.  I shall freely assent to a postponement for a reasonable time.  One remark more; - the learned gentleman says that he is amazed.  I assure him, that I am astonished too to hear from him that this is the first intimation he has had of these proceedings.  If this be the first intimation, I should be glad to know from what source should he derive the knowledge which induced him in this very cause to apply for a writ of prohibition against the entertainment of it by the Vice-Admiralty Court; and where did he derive the intimation that prompted him to commence an action of trespass in the Supreme Court against the parties promovent in this case, and to lay the damages at £2000?

Mr. Rowe - The intimation which I stated I had not received referred to the moving of the defaults.  The ship had been arrested upon a warrant, which the Supreme Court, as I understood, had declared to be an illegal warrant.

Mr. Therry - I deny with due deference to the learned gentleman that the Supreme Court decided any such thing.  They were not called upon to decide that point; they were only called upon to grant or to refuse a writ of prohibition, and they refused it.  One honourable Member of the Court it is true, did express an opinion as to the illegality of the warrant, His Honor the Chief Justice and Mr. Justice Stephen confined themselves to a decision upon the application for a writ of prohibition, and did not express any concurrence in that opinion.  The warrant has been amended on grounds which I shall be ready to explain and defend when the period for doing so shall arrive.

The Judge then pronounced the second default, and named Saturday for pronouncing the third default; but, at the suggestion and request of Mr. Rowe, the learned Judge postponed the day for pronouncing the third default until the Tuesday following.[3 ]

 

Vice Admiralty Court

Forbes C.J., 27 March 1830

Source: Australian, 3 March 1830

 

VICE ADMIRALTY COURT.

SATURDAY.

Mr. Chief Justice Forbes having taken his seat,

Mr. Foster moved, that in the case of the King v. The schooner Darling, the order for an amendment of the warrant which had been obtained in that case, be discharged, on the ground that where a writ used is a nullity, it cannot be amended; and the writ having been issued in this case for a party to appear, under a statute which was not applicable to this Colony, the writ was a nullity, and all proceedings consequent upon it.  In support of his motion, Mr. Foster cited cases from 1st Bosanquet and Fuller 392, and 4th Robinson 288; and in continuation contended, that if in seizing the vessel quo warranto,[4 ] or under the warrant stated, death had ensued, the offence would only have amounted to manslaughter; whereas, had the legal process been regular, the crime would have amounted to murder.

Mr. Therry in reply observed, first, that Mr. Foster had no more right to address the Court than any of the spectators, and that his speech was a complete nullity, as he (Mr. F) had no locus standi in the Court; consequently no right to appear there pro or con.  In the second place, Mr. F. contended he had a right to amend the warrant, this being a qui tam[5 ] proceeding  that he appeared there with all the power of the King's Proctor or AttorneyGeneral; and finally, when the information happened to be incorrect, he considered he had still full power to amend it; in support of which, the learned gentleman quoted passages from 1st Wilson, 256.  The amendment he wanted to tack on to the warrant, was nothing more than adding another count to an information;  and in Maning's Exchequer Practice, 714, it was laid down as a matter of course, that the AttorneyGeneral could at any time add another count to an information.

Mr. Foster in answer contended, that he had a right to make an objection, without a formal appearance  his objection was, that the proceedings should be stopped altogether, as a nullity had been made something of, by an improvident order of Court; that he never doubted the AttorneyGeneral in a qui tam action had a right to amend; that unless the learned gentleman on the other side had shewn, that the King could seize his subjects property whenever he pleased, he had shewn nothing; and in conclusion, he again contended, that such an amendment as the one sought, ought never to have been made.

The learned Judge observed, that he would take the case at an early day, and give it his most serious attention, as it involved the setting bounds to a new course of practice.

Adjourned to Wednesday, at the Supreme Court Office.

 

Vice Admiralty Court

Forbes C.J., 16 June 1830

Source: Australian, 18 June 1830

 

On Wednesday Mr. Chief Justice Forbes, as the Judge of the local Court of Vice Admiralty, gave judgment on the law points involved in the protracted, [?] of the Darling schooner --- ruling that the forfeiture of the vessel was incurred for breaches of the revenue, as stated in the information, provided the evidence adduced could be held to sustain the two first counts.  The learned Judge at the same time directed a verbal amendment of a clause in the second count, and directed the contending parties to proceed on the examination of witnesses, in order to determine whether or no the information was sustainable by facts.  Thus when the matter seemed to be got somewhere near an ending, it in reality has advanced little beyond the middle stage if so far.  O the glorious dubieties and procrastinations of the law.

 

Notes

[1 ] Part of this was also recorded in Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462, p. 261.  The Select Cases version commences with the following summary of the decision, apparently written by Dowling J.:

"The Vice Admiralty Court of N.S.W. has a concurrent jurisdiction with the Supreme Court in Revenue causes by virtue of 4 G 4. C. 114. s. 57. and prohibition will not be to restrain it from proceeding in such causes.  The English Custom Law 6 G  4. C. 108 Stat 2. & 3. Edw 6 English jurisdiction 108 is not in force in New South Wales.  Prohibition cannot be obtained before libel filed in the inferior Court."

See also Sydney Gazette, 22 December 1829, suggesting that if the decision had gone against the jurisdiction of Admiralty, the case would have been heard in the Supreme Court sitting as a Court of Exchequer.

This decision was reported in the Australian, 31 December 1829, as follows:

"The three Judges having taken their seats in banco,

"Mr. Chief Justice Forbes delivered his opinion respecting the application for a prohibition relative to the seizure by the Collector of Customs of the schooner Darling, in the course of which the Learned Judge remarked, that according to Act of Parliament, the informer had his election as to which Court he would proceed in; and thus that his Majesty's Attorney General might proceed ex officio in any Court he thought proper; but then came the important question, ``has the Court of Vice Admiralty any jurisdiction in this Colony in case of a breach of the Revenue Laws?"  He (the Learned Judge) was of opinion, that as this was a possession of the British Crown, the Navigation Laws extended hither under the 7th and 8th William III.  In the same manner as they did, or do to any of his Majesty's possessions in Europe, Asia, or America, and if there were no enactment to silence the 6 Geo. IV. 114, which went to regulate the trade in H. M.'s West India Islands, and the Colonies abroad, he considered that point conclusive; but the Act adve[r]ted to, he was of opinion left it optional with the parties, power to apply to the Governor to stay proceedings, and send the case to England for the opinion of the King in Council.  The case he also thought was not ripe for the interposition of the Court, as the warrant on which the vessel had been seized was not a sufficient authority [f]or the Court to proceed upon, being under 6 Ge[o]. IV. 108, which applied rather to the United Kingdom.  He was further of opinion, that the Vice Admiralty Court has jurisdiction in this Colon[y] in a breach of the Revenue Laws under the statue, but he considered it premature to come before the Court for a prohibition previous to filing the libe[l].

"Mr. Justice Stephen followed on the same side.

"Mr. Justice Dowling in delivering his opinion observed, that until the libe[l] be filed, prohibition can in no case be granted, that the law had been expressly so laid down, and until this was done, he considered the application premature.

"Mr. Therry said, that injust[i]ce to Mr. Cotton, Collector of Customs, he should remark, that Mr. C. had received advice from the Attorney and Solicitor General of the Colony, that the 7 Geo. IV. 108, was in force in this Colony, and under that advice he considered himself bound to act."

[2 ] See also Australian, 19 February 1830.

[3 ] See also Sydney Gazette, 16 February 1830; Australian, 19 February 1830; and on the effect of this case on other litigation, see Noble v. Cotton, 1830.

[4 ] By what authority.  A writ requiring a person to show by what authority he or she holds office or acts.

[5 ] Quit tam pro domino rege quam pro se ipso in hac parte sequitur: a person who sues, sues as much on behalf of the King as herself or himself.

 

Published by the Division of Law, Macquarie University