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

Noble v Cotton and others (1830) NSW Sel Cas (Dowling) 920; [1830] NSWSupC 25

Admiralty Court, Supreme Court, exchequer jurisdiction, revenue laws, smuggling, Vice Admiralty Court, jurisdiction of

Supreme Court of New South Wales

Stephen and Dowling JJ., 31 March 1830

Source: Dowling, Select Cases, Vol. 2, Archives Office of New South Wales, 2/3462

[p. 303]

[Where a cause of forfeiture was pending in the Vice Admiralty Court of this Colony the Defts below brought an action at law against the seizing officers for seizing the Vessel sought to be condemned, the Court postponed the trial of the action until the proceedings in the Vice Admiralty Court were determined.][1 ]

 

Source: Dowling, Proceedings of the Supreme Court, Vol. 34, Archives Office of New South Wales, 2/3217

[p. 1]

Wednesday 31st March 1830

CoramStephen

Dowling J.[2 ]

Noble v Cotton & ors

On a former day a motion was made to postpone the trial of this case, - Stephen J. & Dowling J. only present we took time to consider the application and now

Dowling J. delivered the Judgment of the Court to the following effect

This was an application on behalf of his Majesty to postpone the trial of this cause (which is now at issue, and set down for trial this week) until the 1st December next, on two grounds, first that the identical subject of this action is now Subjudice in the Vice Admiralty Court of this Colony, that the [p. 2]  Crown Revenue is involved in the question, and consequently that the Court is bound to suspend the trial of the action until the proceedings in the Vice Admiralty Court shall be determined; and secondly, that the defendants (two of whom are officers of H.M.'s Customs, and the third, the acting deputy marshall of the Vice Admiralty Court,) cannot safely proceed to the trial of this case on account of the absence of a material and necessary witness named Samuel Gimby.

This application was not opposed by any matter set forth by affidavit.  We are therefore to pronounce  our decision upon the statements contained in the affidavit in support of the motion.

Upon the second ground we are of opinion that the affidavit is not sufficient to warrant us in postponing the trial.  It does not shew what steps have been taken by the Defendants to [p. 3] procure the attendance of the witness Gimby, nor does it show whither he is gone.  The deponent, it is true, states that he has been informed that the witness Gimby will return to this Colony before the 1st December next; but he does not go on to say that such information he believes to be true.  The affidavit being defective in these particulars, we ought not, we think to postpone the trial on that ground.

With respect to the first ground, we have taken it into mature consideration, and are of opinion that we ought to suspend the trial of this action until the proceedings in the Vice Admiralty Court shall be determined.

The King's Attorney General having come publicly into Court, & given us to understand and be informed, that a revenue question, in which the interests of the Crown are involved incidentally, is to be discussed in a private action in this Court, against Custom House officers for an act done [p. 4]  touching & concerning the Collection of the public revenue, we apprehend that upon such an intimation alone, without affidavit, we sho.d  be bound to suspend the proceedings until the question were regularly determined at the suit of the Crown.  The King's Attorney General is an officer of whom we must take judicial notice, and he may call upon us in mero motu [?] to act upon his information in all matters in which the rights & interests of the Crown, or in other words the rights & interest of the public are involved.  This is the King's Court, in which his Majesty is by intendment of law actually present, & we H.M's judges, as conservators of the prerogative rights of the Crown - the head and fountain of justice, are constrained to act in such a manner as shall be conducive to this end.  This I take to be one of the first principles of the British Constitution.  It is however sworn on affidavit, that the cause of action which is the subject of this proceeding [p. 5] in this Court, is in fact a matter now subjudice in another court of competent jurisdiction, and that the question in both Courts is identically the same, with this difference only, that the parties are transposed, - the Crown seeking in the one to condemn a vessel called the Schooner Darling for an act of smuggling, & in the owners of the vessel, seeking in the other a compensation in damages against the Custom House officers for seizing the vessel, in order to her condemnation, the action in this Court, being in fact brought after the commencement of the proceedings in the Vice Admiralty Court.  Under such circumstances I apprehend that this Court has no alternative, not only upon general principles, but upon decided authorities, - and is bound to stay the trial in this court.

When a similar application was made on a former day, the [p. 6] Court to had [?] to encounter this difficulty; namely, that there was nothing before us to shew that the proceedings in the two Courts could be identified, because for anything which then appeared to the contrary, the action might have been brought for an act done by the defts wantonly, & not within the scope of their authority as Custom House officers.  That omission has now been supplied.  It is not sworn, & not denied ``That the alleged trespass for which this action is brought, is an act done in due conformity with the process issuing forth of the Court of Vice Admiralty, and in order to bring said Schooner Darling within the jurisdiction of said Court, and that the Schooner Darling is the identical vessel of and concerning which, proceedings are now pending in the Court of Vice Admiralty."

It having been formally decided by us, that the Vice Admiralty Court of this territory has a concurrent jurisdiction with this Court [p. 7] in matters of revenue, comformably with the provisions of the statute 6. G. 4. c. 114. s. 53 and that this court owes comity to that, upon this subject, I apprehend that we must take notice judicially upon the information of the Attorney General, that the King's revenue is involved in the question now at issue in this Court, pending the same identical question in the Vice Admiralty Court.

I take it to be quite clear that had the Attorney General, in virtue of the King's prerogative elected to proceed for a forfeiture of the Schooner Darling in the Exchequer jurisdiction of his Court, the Court would have had no difficulty in retraining the plf in the present action from proceeding at law for the alleged trespass until the suit at the instance of the Attorney General was determined.  What difference then is there in principle, as respects this point, arising from the circumstance of the Crown having elected to proceed in the Vice Admiralty Court pursuant to the [p. 8 ] 6 G 4 c. 114 s. 53?  I apprehend none, because that Statute has given jurisdiction to the Vice Admiralty Court in causes of this nature.  In the mother country this question could never have arisen, inasmuch as it is a notorious and well settled rule, that the Court of Exchequer in Westminster Hall claims exclusive connaisance [?] of all matters of Crown revenue.  The Admiralty of England does not take cognizance of such questions; but the Admiralty of the Colonies does by force of the 6 G 4. c. 114. s. 53, which is only a re-enactment of the 49 G 3. & the Statute of 7 & 8 William 3.  It would not only be highly inconvenient and unjust, but I think, in derogation of the Constitution rights of the Crown, in which the public weal is deeply involved, if under the circumstances now disclosed to us, this action were suffered to proceed pending the determination of the same identical ques[p. 9]tion in another Court of Competent jurisdiction.  The jurisdiction of the Vice Admiralty Court, would be absolutely null and of no effect, if it were competent to a person proceeded against in that Court for a breach of the Colonial revenue laws, to proceed eo instanti in this Court for the every act done by Custom House officers, necessary to enforce the penalties of the law in that Court.  It is well known that the proceedings of the Admiralty Court, from its constitution and practice, are slower than those of the common law Courts; and it might happen that from some technical or other circumstance, quite independent of the merits of the case, that the levying officer might be liable to damages and Costs in an action at common law, although ultimately the Vice Admiralty Court might on very just grounds proceed to condemnation of the vessel under [p. 10] the seizure so made by the revenue officers.

It is well known as a matter of history in cases of this nature, that in the Colonies, questions of revenue are almost universally determined, not in the common law Courts, but in the Courts of Vice Admiralty.  Whether this arises from a just jealousy of the common law tribunal in such matters or not, I do not pretend to say, but those who are conversant with the practice of the Colonies, are well acquainted with the fact now stated and probably hence arises the jurisdiction given to the Vice Admiralty Courts of the Colonies in cases of revenue.

This, I take to be a question of vital importance to the Colonial revenue.  In short if we were not to yield  to this application the revenue laws could never be enforced; for the moment a Custom House Officer seized a [p. 11] vessel for a notorious breach of the revenue law, & instituted proceedings in the Vice Admiralty Court, he would be hampered and harrassed by an action in the common law Court for the very act performed by him in discharge of his public duties; & by reason of the greater celerity of the common law proceedings, might be subjected to damages & costs before the question of the legality of his conduct could be determined in the Vice Admiralty Court.  From the moment that my mind was informed of the identity of the two causes, I had not a shadow of doubt as to the propriety and legality of this application; but it being a question of general importance, we thought it right to take time to consider it; and we are now clearly of opinion that this rule must be made absolute.  We regret that we have not the benefit of the opinion and judgment of the enlightened [p. 12] head of this Court, publicly declared, but we have had an opportunity of conferring with his honor in his sick chamber, and having explained to him the grounds of the motion he concurs generally with us in our view of the case.

Rule Absolute for postponing the trial until the 7th December next.

 

Notes

[1 ] On this case, see also Sydney Gazette, 16 March 1830; Australian, 17 and 31 March 1830; and see Noble v. Cotton, 1831.

See The Schooner Darling, 1829.

[2 ] Marginal note in manuscript: " Note Forbes was at this time confined to his bed with illness.-"

Published by the Division of Law, Macquarie University