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

Sparke v. Campbell [1837] NSWSupC 63

civil procedure - reception of English law, civil procedure

Supreme Court of New South Wales

Dowling A.C.J., and Burton and Kinchela JJ, 30 September 1837

Source: Australian, 3 October 1837[1 ]

Sparke v. Campbell - Mr. Windeyer moved, that the rule nisi obtained in this cause to set aside the assessment of damages, with all subsequent proceedings, be now made absolute.  Mr. Foster showed cause.  A summons had been taken out against the defendant in this action on the 4th of August last, being the day preceding that of return of writs, and while one of the clerks in the office of the plaintiff's attorney (Mr Nichols) had gone to the Supreme Court office to issue the summons, the defendant called at Mr Nichols' office, and made enquiries whether any proceedings were about to be instituted against him, and in reply was informed of the exact state of the case.  He then desired that a copy of the of summons might be left at the office of his solicitor, Mr C. H. Chambers, who would accept service for him, but in the course of the day he set a letter to Mr Nichols, saying, that Mr Chambers (who was now his attorney in the same cause) declined accepting service on his behalf.  A copy of the summons was then left on the following day with the landlord of the Hibernian Hotel in York-street, where the defendant had been lodging for some days previous, and who promised to deliver it.  Judgment having gone by default, the case was set down for assessment of damages on the 31st August, and on the 9th September, the plaintiff's attorney was served with a notice from Mr. Chambers, as attorney for the defendant, that the proceedings were irregular, and cautioning him against submitting the case for assessment of damages.  The plaintiff's attorney, however, disregarded the notice, and obtained a judgment.  It was urged upon affidavits put in on the part of the defendant, that his usual place of abode was at Dayworth, Hunter's River, within the jurisdiction of the court - that he had left the Hibernian Hotel, at which he was a mere temporary lodger, on the 14th August, and proceeded to a friend's house at Parramatta - that he did not return to Sydney until the 16th of the same month - and that it was not until some days afterwards he received notice of the action having been brought.  On behalf of the plaintiff Mr Foster contended, that it was a mere trick on the part of the defendant in leaving his lodgings until after the return day of the summons, in order to avoid service - and that even if the rule of court in this case were to be strictly adhered to, the defendant ought to have applied in the vacation to a Judge in chambers to set aside the proceedings, and not have put the opposite party to unnecessary further expense.  The learned gentlemen cited from ``Dowling's practice cases," and 1st and 6th ``Taunton," to show that such had been held to be the proper rule of practice by the Judges in England, and he contended that the same rule applied to this Colony.  Mr. Windeyer was about to address the court in reply, when their Honors intimated their opinion, that they could not dispense with the safe and wholesome rule of court, which went to provide for process being left at the usual place of abode of a defendant where personal service could not be effected.  Mr Justice Burton observed, that the arguments of Mr Foster appeared to him at first to be well worthy of the attention of the court, but upon looking at the cases cited, they proved to have all occurred in the Court of Common Pleas, whereas, upon reference to the Charter of Justice, the Supreme Court was to be guided by the rules of the Court of King's Bench.  Rule made absolute with costs.

 

Notes

[ 1] See also Sydney Herald, 2 October 1837; Sydney Gazette, 3 October 1837.

Published by the Division of Law, Macquarie University