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

Hogan v Brown [1830] NSWSupC 72

assault, magistrate, action against, treadmill, statute of limitations

Supreme Court of New South Wales

Forbes C.J., 24 September 1830

Source: Australian, 1 October 1830[ 1]


A FLOGGING CASE - FRIDAY.  The Chief Justice presided to day when the following Special Jury were sworn viz. Messrs John Rickards (foreman), J. H. Grose, James Farmer, Phillip J. Cohen, Simeon Lord, James Mitchell, John King, R. Cooper, H. Marr, Robert Johnson, James Barnett D. Maziere.

HOGAN vs. BROWN, J. P. - This was an action brought to recover compensation in damages for an assault upon the plaintiff, who it appeared sometime ago was brought to the Police Office Sydney, where the Defendant was officiating as a Magistrate, on a charge of refusing to work upon the tread mill in pursuance of a previous sentence, alleging himself to be a free man, and saying he could bring people to prove that fact; but one of the clerks in the Police Office on the other hand deposing that he had examined the indent of the plaintiff's conviction in the principal Superintendant of Convicts Office, and that according to his computation the plaintiff would not be free till the month of October next, defendant sentenced the plaintiff on his continuing contumacious and refusing to take his discipline on the mill, to 20 lashes, which were inflicted by one of the common flagellators, and for this the plaintiff still alleging himself to be a free man, brought his action.  Mr. Moore Crown Solicitor, submitted that the plaintiff should put up with a nonsuit, inasmuch as he had not brought his action within the time provided by stat. 24 Geo. 2. C. 48, which enacts that no suit or information against a Magistrate in the discharge of his functions, shall be sustainable, unless brought within 6 months from the cause of action arising; which time the plaintiff in this case had permitted to transpire, not bringing his action till 4 days after the expiration of the 6 months.

The learned Chief Justice said that this rule of law left the Court no discretion in the present case but to nonsuit the plaintiff, who accordingly lost his case.


[ 1] Eventually, Governor Bourke admitted that there had been an error in Hogan's case.  The governor wrote to Viscount Goderich on 25 January 1833 (Historical Records of Australia, Series 1, Vol. 17, p. 21) saying that Hogan had been sentenced in Ireland to seven years' transportation under the Insurrection Act.  The sentence commenced on 18 September 1822.  Hogan's claim to be free in 1829 should have been accepted, but he was sentenced by a magistrate to punishment and also confined on the orders of the Principal Superintendent of Convicts until 1830.  He sued both the Superintendent and the magistrate but gained nothing from the actions.  These actions, said the governor, were instigated by an attorney, and now the attorney was behind a claim for enormous costs.  Governor Bourke thought that he should have acted more respectfully, by not suing and not resisting authority: ``a less obnoxious demeanor would have obtained from him all due consideration".  Now he deserved some small compensation for the government's error, and £50 was sufficient.

See also Hogan v Hely, 1831.

Published by the Division of Law, Macquarie University