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

Ex parte McKey (1832) NSW Sel Cas (Dowling) 225; [1832] NSWSupC 11

New Zealand, Supreme Court jurisdiction over - Supreme Court, jurisdiction of - Supreme Court, geographical limits on jurisdiction - imprisonment for debt, mesne process

Supreme Court of New South Wales

Hearing, March 1832[1 ]

Source: Dowling, Select Cases, Archives Office of N.S.W., 2/3466[2 ]

 

[p. 146]

 

[The writs of the Supreme Court of New South Wales do not run in New Zealand though the Court has an Admiralty Jurisdiction to try in the Territory Criminal offences committed by British Subjects in that Island.]

Exparte Hugh McKey

In re Nelson

A Vessel called the American having been wrecked in Torres Straits a merchant of Sydney purchased the Hull and the remaining of the stores as she stood in the straights for the benefit of the London underwriters.  Before possession could be taken, the Nelson; McKey finding her wreck in the course of a voyage in that quater, dismantled her of stores &c and took them in the vessel to New Zealand, where the Nelson was stated now to be.

Keith moved for a Capias ad [p. 147] respondendum[3 ] against McKay to arrest him at New Zealand for the value of the stores &c taken from the vessel contending that New Zealand being one of the dependencies of New South Wales a writ of this Court would there run. 

He relied upon the language of the N.S.W. act 4. c.83. s.3 & 4.

 

Notes

[1 ] From its position in the Select Cases, it is likely that this hearing took place in early March 1832.

[2 ] On the law's limits over New Zealand, see Goderich to Bourke, 14 June 1832, Historical Records of Australia, Series 1, Vol. 16, pp 662-665, announcing that James Busby had been appointed as Resident in New Zealand.  Part of the aim of the appointment was to ``repress the outrages, which unhappily British Subjects are found so often to perpetrate against the persons and property of the Natives and the peace of Society in those Regions."  Before this appointment, there was no means of compelling offenders or witnesses to travel to New South Wales.  This change was precipitated by the unsatisfactory outcome of R. v. Stewart, 1831.

See also Historical Records of Australia, Series 1, Vol. 15, pp 702-705, on Marsden's concern about the whalers' outrages in New Zealand.

[3 ] The writ of arrest on the mesne process, under which a defendant could be arrested and imprisoned prior to judgment on the main claim.

Published by the Division of Law, Macquarie University