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

Ex parte Buchanan (1839) 1 Legge 102; [1839] NSWSupC 51

building law - statutory construction - judicial review of legislation - magistrates, right to summon parties - mandamus - natural justice, judge in own cause - courts, jurisdictional basis

Supreme Court of New South Wales

Dowling C.J.,  Willis and Stephen JJ, 29 June 1839

Source: Australian, 2 July 1839 [1]

Exparte William Buchanan. -- In this case, a rule nisi was obtained last term, calling upon Henry Croasdill Wilson, Joseph Long Innes, and Sydney Stephen, Esquires, magistrates, of the territory, to show cause why they refused to adjudicate on a complaint made by William Buchanan, the surveyor or supervisor appointed under the Building Act.

Mr Stephen appeared on behalf of the magistrates.  He said, that the application was made to the magistrates under the fifty-sixth clause of the eighth William IV, No. 6; which enacts that certain sums shall be paid by the master workman, or person causing a building to be erected; and that in default of payment, any justice or justices shall is[s]ue his warrant to distrain for the amount.  In this case, the complaint made by Mr Buchanan, the surveyor under the Act, was that Mr Nash had become liable for certain sums which had been demanded from him, and which he had refused to pay.  The magistrates contended that there was nothing in the Act which gave them power to hear and determine the case, but upon adjudication of the surveyor, assessed the sum due, the magistrates were called upon to issue a warrant.  If power was given to magistrates by an Act of Parliament to issue a warrant in a certain case of felony, then the common law right of the magistrates came to their aid, and empowered them to hear and determine the case; but here the magistrates, having no inherent common law power could not go out of the colonial Act which gave no power to hear and determine.  In other parts of the Act, the magistrates had power to hear and determine, but this clause was defective in that respect, and this being a penal statute, giving a new jurisdiction, the magistrates could have no power by implication.  The magistrates had no power to issue a summons to compel the attendance of a party, and if they were to issue a warrant against a person and he were detained in custody, an action for false imprisonment would lie against them.

The Attorney General said, that the affidavit of Mr Buchanan, under which the rule was grated, set forth that he applied to the magistrates, who issued a summons against Nash, who appeared, and the magistrates dismissed the case on the ground that they had no jurisdiction.  This Act was almost a copy of the London Building Act, the 14 Geo. III. cap 78, the sixty-third section of which is in almost the same words as the fifty-sixth clause of the Sydney Act, except that the London Act said, that the magistrates should determine what sum were to be paid, while the Sydney Act provided, that for certain rates, certain sums shall be paid.  If this clause was not sufficient, the whole Act would be a nullity, and the surveyor, who had no salary, would e unable to obtain his fees.  If the magistrates were satisfied that the money was due, and the party refused to pay it, it was their duty to issue their warrant.  In this case, the surveyor's affidavit stated that the building was a second rate one, and that a certain sum was due, and therefore it was the duty of the magistrates to issue the warrant.  If the magistrates had issued their warrant, the party against whom it was issued would have the power of appeal, but the surveyor had no power of appeal.  It was laid down in Blackstone, that the judges are to extend the provisions of a statute, so as to give effect to what the Act is intended to enact.

Mr Stephen said, that to determine what was due, the magistrates would be forced to adjudicate, which the Act did not give them power to do.

Mr R. Windeyer as amicus curiae made some observations on the London Act being seldom observed, and,

Colonel Wilson said, that he was chairman on the occasion, and had considerable doubts on the matter, which made him wish to take the opinion of the Attorney General on the point, but his learned friend Mr Stephen, and his gallant friend Captain Innes, were decided on the matter, and he acted as their mouth-piece.  He did not appear for the purpose of opposing the mandamus, but to say that as an unlearned person, he did not clearly understand that the Act gave him power to hear the case.  If the Court thought proper to issue the mandamus he would obey it.

At the suggestion of Mr Justice Stephen, the Court took time to consider the point.


Dowling C.J.,  Wills and Stephen JJ, 12 July 1839

Source: Sydney Herald, 17 July 1839[2] 


Friday, July 12. -- Before the three Judges. In Banco.

At the opening of the Court, the Judgment upon the application for a mandamus to compel the Magistrates to act under the Building Act was given.

The Chief Justice. -- This was an application at the instance of Mr. Buchanan, Town Surveyor of Sydney, for a writ of mandamus to be directed to H. C. Wilson, Esq., and two other Justices of the Peace, commanding them to issue their warrant for levying by distress and sale of the goods and chattels of Mr. W. Nash, certain rates of payment, claimed to be due to the applicant for his trouble in viewing, and seeing that all the rules and regulations contained in the Sydney Building Act, 8 Wm. IV., No. 6, had been well and truly observed.  It appears, as alleged, that Mr. Nash had become liable to pay Mr. Buchanan certain rates, as Town Surveyor, in the performance of his duty under the Act, and having, upon application refused to pay them, Mr. Buchanan resorted to the Bench of Justices in Sydney for a distress warrant under the 56th section to levy the same; but the Justices, doubting their jurisdiction, refused it, and we are now called upon to determine whether this is a case in which the Court will grant a mandamus.  The local ordinance in question appears to have been framed upon, and almost copied from the London and Westminster Building Act, 14 Geo. III., c. 78, but there is a difference between the 63d section of that Act, and the corresponding section (56), of the local ordinance, which is, in my opinion, very essential.  By the 64th section of the London Act, it is enacted, ``that before any building or wall, or new or old foundations, or on foundations partly new and partly old, within the limits of this Act, shall be begun to be built, the master-workman, or person causing such building to be built, shall give twenty-four hours' notice thereof to the surveyor within whose district the same shall be; and such surveyor shall view such building, and see that all regulations are observed, and such surveyor for his trouble thereon, shall be paid by such master, workman, or person causing such building or wall to be built, such sum of money for his trouble therein as two justices shall, by any writing under their hands, order, not exceeding" (the scale of the fees therein set out), ``and in default of payment of such sums, or such other sums as such justices shall appoint, the same shall, by warrant of one justice be levied by distress and sale of the goods and chattels of such master-workman, or other person, together with the costs of distress."  The 56th section of the Local Ordinance is nearly in the same terms, but omitting the important words, ``as two justices shall, by any writing under their hands, order," and also the words ``or such other sums as such justice shall appoint."  By the London Act, it is obvious that a jurisdiction is given to the justices to hear and determine, and award by writing under the their hands, what sum of money is due to the surveyor for his trouble, according to the rates prescribed, and in default of payment of the sum so adjudicated to be due, or such other sums as the justices shall appoint, they are authorised to grant a warrant of distress to levy the same.  This jurisdiction so given, necessarily imports the power of summoning the parties before the justices hearing the complainant, and the defendant and their witnesses respectively, and deciding judicially whether any thing, and what is due to the surveyor.  The justices are not absolutely to award the scale of rates prescribed, but to award a quantum meruit, not exceeding that scale, for the trouble which the surveyor has had.  The extent of his labour and trouble is matter of evidence, and is not left to the mere judgment of the surveyor himself.  The jurisdiction thus carved out, is consonant with the principles of natural justice, and the constitutional principle on which every court of justice is founded.  ``In every court," as Sir W. Blackstone says (3 Com. 25), there must be at least three constitutent parts, the actor, reus, and judex; the actor or plaintiff who complains of an injury done; the reus or defendant who is called upon to make satisfaction for it; and the judex, or judical power, which is to examine the truth of the fact, and, if any injury appears to have been done, to ascertain, and by its officers to apply the remedy."  It is clear that no such jurisdiction is given to the justices by the Sydney building Act.  They have no power of hearing and determining whether the surveyor's claim is just or reasonable.  It is sufficient that the surveyor informs them that he has not been paid, and without further inquiry he has a right to demand a warrant of distress and sale.  In effect, the justices are mere instruments in the hands of the surveyor - he is the judex and they his officers to apply the remedy pointed out by the Act.  It was contended, that it was impossible to carry this section of the ordinance into operation without violating common reason, inasmuch as it is contrary to common reason, nay, absurd, that a man should be in a judge in his own case.  On the other hand it is said, ``Ita lex scripta est - and the court has no power to depart from it, without usurping the unconstitutional province of legislating.  It was agreed, in the words of Professor Christain, ``that if an Act of the Legislature is clearly and unequivocally expressed, it is neither void in its direct nor collateral consequences, however absurd and unreasonable they may appear;" but it was admitted, ``that if the Act will admit of doubt, it will not then be presumed that that construction can be agreeable to the intention of the legislature, the consequences of which are unreasonable; but where the signification of a statute is manifest, no authority less than that of Parliament can restrain its operation.["] [3]  Agreeing in this doctrine as I do, and bound as this Court is to pay the like respect to the Acts of the Local Legislature when duly passed, in pursuance of the Statute by which the Local Legislature is erected, as they would the Statutes of the Imperial Parliament of Great Britain, still I apprehend it is open to us to put such a construction on its laws, as shall not involve unreasonable consequences, which it must be presumed it could never intend.  As a general principle, it is repugnant to the law of England, that, ``a man shall be a judge in his own case" how can we suppose that the legislature really contemplated such an unreasonable proposition, especially with the London Building Act in its purview, which act, if it can be construed in pari materia with this, shews that the Parliament of England took emphatic care to guard against such unreasonable consequences as would be involved by the Local Act.  The reasonable presumption is, that in perusing an Act of such magnitude, and embracing such a vast variety of complicated provisions, the compiler had omitted by mistake or accident, the most vital jurisdiction conferred on the Justices of the London Building Act.  It is clear that the Justices of Sydney have not in express terms any power to hear and determine, and I can find no authority which would give them jurisdiction by implication.  If we were now to hold that they had jurisdiction to hear and determine, that would be legislating, not expounding.  It is true, as was contended, that where an Act of Parliament enacts any matter or thing, it tacitly gives the right of carrying it into effect by all legal means; and therefore, though the words used are not express to all matters necessary for the purpose, the Court will so construe the statute, that is object may be obtained; but the case put in illustration of that principle does not bear out the proposition contended for in the present case.  In that case (Rex v. Simpson, 10 Mod. 248.) the defendant was convicted of deer stealing, under 3 and 4 W. and M., c. 18, and the question was, whether he could be convicted in his absence or in default of appearance, or should have been brought before the Justices before he was convicted.  The statute was silent on the subject, and only required the conviction to be on the oath of one credible witness.  The Court decided that the conviction was good; for that if he could not be convicted, but on his appearing, the consequence would be, that by refusing or omitting to appear, the statute would be defeated.  In that case, there was a Judge, with power to hear and determine, and there was nothing repugnant to law of justice in convicting a man behind his back, if he did not choose to appear and make defence.  But here the Justices have no power to hear and determine.  If they had, then we should follow up the principle of the case cited, and so construct the Local Ordinance, that its object might be attained.  The provision of the Local Ordinance, was likened to the power of distress given by a landlord for recovering his rent.  The right of distraining for rent stands upon a very different footing, and however, many enlightened persons have questioned the policy of such a right, it has never been extended to any other relation in the transaction of mankind.  The doubt I have, is that the Local Legislature really intended to omit the jurisdiction given by the 63rd section of the London Building Act, in copying that into the Sydney Act; and in a case so doubtful, and involving such consequences, in violation of the principles of natural and political justice, I think we ought not to interfere by mandamus, which if we did, might subject the Magistrates to an action.  It appears to me that they had reasonable ground for doubting their jurisdiction, and on that ground, we ought not to compel them to do an act which may subject them to an action.  In Rex v. the Justices of Buckinghamshire, I. B. and C: 487, and 2 Dow, and Ryl. 689, Abbott, C. J., said -- ``since I have had the honour of sitting in this Court, I have always expressed very great reluctance in compelling Magistrates to do anything which might subject them to the chance of an action.  In those cases where the duty of the Magistrates is clear and explicit, we interfere by mandamus, and suffer no idle suggestion that an action may be brought to prevail with us; but when we cannot see that his duty is plain and obvious, but may be matter of doubt, we do not interpose."  In the present case, I shall conclude by saying, in the language of the same eminent Judge.  ``I think we ought not to compel the Magistrates to issue their warrant.  I forbear saying anything more than that I entertain doubt upon the question.  I do not wish to prejudge a question which may hereafter be considered, should any other Magistrates be found, who shall issue their warrant, and thereby raise the point for discussion.  When such question shall be raised, it will be the duty of the Court to hear it discussed, and decide upon it.  At present, I wish to be understood as giving no judicial opinion upon it; and that the ground on which I discharge this rule is, that I cannot myself clearly see that these Magistrates may not be subjected to an action if they should issue their warrant."

Mr. Justice Willis said, that when the application was first made he was disposed in favour of the mandamus, but upon consideration, and especially after hearing the judgment of the Chief Justice, he was of a different opinion.  The reason why he first thought the mandamus should issue was that the Magistrates having the power of issuing execution, it necessarily implied that they had the power of taking the previous steps, the major power necessarily including the minor, but upon consideration he thought that the necessary power was not given.  It was quite clear that if the Magistrates had the power of conviction given them, and the Act stopped there, that they could not issue execution.  It is a rule always followed not to issue a mandamus wherever the matter is in the least doubtful, and therefore he agreed with the Chief Justice that the mandamus should not issue.

Mr. Justice Stephen thought that the London Building Act itself is deficient, but there the Magistrates have the power of awarding what sum is to be paid to the Surveyor.  He agreed with his learned seniors. -- Rule discharged.



[1]  See also Sydney Herald, 1 July 1839; Sydney Gazette, 2 July 1839.  This is one of the few cases of this period to be reported.  See (1839) 1 Legge 102.

[2] See also Australian, 16 July 1839, which reproduced the Chief Justice's judgment in the same words, but gave less detail on the judgments of Willis and Stephen JJ.  Minor ambiguities in the Herald's version of the Chief Justice's judgment have been corrected here by reference to the Australian.

[3]  It is clear that the quotation should have ended here, but neither the Herald nor the Australian did so.

Published by the Division of Law, Macquarie University