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

Doe dem. Johnstone v. Simpson [1839] NSWSupC 72

civil procedure - reception of English law, procedure

Supreme Court of New South Wales

Dowling C.J., Willis and Stephen JJ, 12 October 1839

Source: Sydney Gazette, 15 October 1839 [1]

SATURDAY. -- Doe on the demise of Johnstone v. Simpson.

Mr Donnelly, supported by Mr Manning and Mr Broadhurst, moved that this cause, which had been struck out of the paper of motions for new trial on the previous Saturday, be restored to the paper; and also for a rule calling upon the lessor of the plaintiff to shew cause why the judgment signed therein, and all subsequent proceedings had thereon, should not be set aside.

On the previous Saturday, this case, with others, appeared in the paper of new trials as remanets from the last term; and, when it was called on, an objection was raised that the notice of this motion had not been filed within the four days required by the 46th rule of the Court, inasmuch as, one of the days being Sunday, the notice was not filed until the fifth day. On the objection being made, it was argued on behalf of the defendant, that the notice in this case had been filed strictly in accordance with the established practice of the Court in such cases, and that Sunday never had been reckoned since the promulgation of the rule, in 1824, as one of those days -- that it was analogous to the rule for judgment required in the Courts in England, which was a four day rule, and in which, if Sunday intervened, it never counted -- that according to this reading of the 46th rule of the Supreme Court, the notice had always been filed -- that the officer of the Court had always required such practice to be followed, and that that construction had been adopted by the Court. The Chief Clerk of the Court, who does the duties of Master in the Court of Queen's Bench in England, or Prothonotary in the Court of Common Pleas, was referred to on the point of practice, who reported to the Court that the practice always had been as above stated, and that he had an impression on his mind that a case had been decided by the whole Court confirmatory of such practice. The Court upon this decided that their now construction of the rule was to reckon Sunday as one of the four days, and that the notice in this case having been filed on the fifth day, the case should be struck out of the paper; His Honor the Chief Justice observing that they should be sorry to shut parties out if it appeared that they had been taken by surprise, and Mr Justice Willis observing that he had tried the case at Nisi Prius, and was quite sure that there was no ground whatever for applying for a new trial, and that his mind was made up against it; upon which the Court ordered this, and two other cases which were stated to be similarly circumstanced, to be struck out of the paper, which at once cleared off all the arrears of business from the previous term.

Upon the strength of the Chief Justice's observation, and the hardness of the case where a particular practice to the reverse of the decision had prevailed for fifteen years, the present application was made upon the following affidavits:-- That of the defendant's attorney, which stated that he had been a clerk in the Supreme Court office from March, 1828, to December, 1836 since which he has practised as an attorney, and that the practice upon the rule in question at the time he entered, was not to reckon Sunday if it intervened -- that the same practice was invariably followed up to the present time -- that the Chief Clerk certified that such practice of not reckoning Sunday had been followed by the profession and by the officers of the Court, and had been recognised by the Court ever since 1824, when the rule was first made -- that the Chief Clerk was under the impression that the Court had directed that Sunday should not be reckoned, although he could not recollect the name of the case -- that the notice for a new trial, in this case, had been filed by the advice and upon the recommendation of Counsel just for the purpose of delay -- that the notice in this cause had been filed in strict accordance with the established practice of the Court, the profession, and the clerks of the Court for the last fifteen years -- and that several members of the profession, who had declined to make affidavits, authorised the statement that their knowledge of the practice was as stated above.

This affidavit was corroborated by the several affidavits of Mr Rodd, Mr Dowling, Mr Want, Mr Nichols, Mr Poole, and the managing clerks respectively of Mr O'Reilly and Mr Nichols, to the effect that they had known the practice on the rule in question for several years, and that it had been not to reckon Sunday -- that that was the practice which had been invariably followed by the profession, the officers of the Court, and adopted by the Court itself.

Mr Justice Willis, who tried the cause, now certified to the Court, that he was quite sure justice had been done between the parties at nisi prius, and that he for one should not be inclined to restore the case; upon this, the Court said, that as justice was stated to have been done, and no grounds appearing upon affidavit, upon which they could say the defendant was damnified, they refused to restore the case, and objected to be made a Court of review of their own decision.

The effect of this most extraordinary decision has been, without any previous intimation, to alter the fifteen years' practice of the Court, and to give that alteration a retrospective effect.



[1] See also Sydney Herald, 14 October 1839.

Published by the Division of Law, Macquarie University