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

Ex parte M'Gaa [1838] NSWSupC 18

Court of Requests, jurisdiction - Patriotic Association

Supreme Court of New South Wales

In banco, Dowling C.J., Burton and Willis JJ, 3 March 1838

Source: Sydney Herald, 5 March, 1838[ 1]

Exparte Allan M'Gaa. - Mr Forster said he had been instructed to move for a writ of prohibition restraining the Commissioner of the Court of Requests from issuing execution in a case where judgment had been obtained by Sir John Jamison, William Charles Wentworth, and William Hutchinson.  The learned gentleman after reciting the Patriotic Association's bond under which the judgment was given, argued at great length, to shew that the section of the Act which says, that the Commissioner shall not give judgment in any matters affecting any fee of office, duty payable to the Crown, Annual Rent or other such matter, whereby rights in future may be bound, took the matter entirely out of the jurisdiction of the Court.

The Chief Justice said, that there was no doubt the Commissioner had jurisdiction; it was an action of debt on a bond.

Mr. Justice Burton said, that the words of the Act were any 'such' matter whereby rights in future may be bound, alluding to the fees of office, duties to the Crown, or annual rent, neither of which described the subject of the action; indeed he had no doubt that the matter was perfectly within the jurisdiction of the Court, and looking at the bond, the judgment appeared to be right in law, and if there was any equitable objection, the Commissioner was quite competent to decide it.

Mr. Therry observed, that where parties had shewn him they did not know what they signed at the time, he had given them judgment.

Mr. Justice Willis said, that the Commissioner's jurisdiction could not be doubted.

 

Notes

[ 1]See also Australian, 6 March 1838; Sydney Gazette, 6 March 1838.

Published by the Division of Law, Macquarie University