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

Roope v. Osborne (1841) N.S.W. Sel. Cas. (Dowling) 896; [1841] NSWSupC 2

covenant - Court of Requests - legislation, judicial notice of

Supreme Court of New South Wales

Dowling C.J., Burton and Stephen JJ, 1841

Source: Dowling, Select Cases, Vol. 6, State Records of New South Wales, 2/3464, p. 209


                                                              Roope v Osborne

Dowling CJ.     Covenant.  At the trial before Burton J. the Plf had a verdict for 5£ & now Foster moved on notice, that upon payment of the damages recovered, without costs, all further proceedings should be stayed, on an affidavit that the cause of action was maintainable, & triable in the Court of Requests for the district of Illawarra.  It was objected on shewing cause, that assuming an action of Covenant to be within the purview of the Court of Requests act, still it was not shewn that this action could be lawfully tried in the district of Illawarra for non constat, that Illawarra was [p.210] a town or place at which a Court of Requests is holden.  It might be that a Court of Requests was holden at Wollongong, but the Court could not take judicial notice, thatWollongong was in the district of Illawarra.

We are unwilling to decide this case on this point, but we cannot get over it.  We are bound to take judicial notice of the Local ordinance 310.4. no.2 by the 2d sec of which the Governor is authorised, by proclamation to appoint courts of requests to be holden at the several towns therein mentioned, namely, Sydney, Parramatta, Liverpool, Penrith, Windsor & Campbell Town in the County of Cumberland; at Wollongong & Nobs Bons or Berrima in the County of Cawder; at Bathurst in the County of Bathurst & at Maitland in the County of Northumberland.  No such place as the district of Illawarra is mentioned, & we cannot assume against the law, that there is any Court of Requests for the district of Illawarra, at which this cause could have been tried, & consequently the affidavit on which this motion is founded, is not sufficient to enable us to decide the question whether an action of Covenant is within the jurisdiction of the Court of Request.

Burton J.          Holds Covenant is within the Court of Requests.- but concurs on the other point.-

[p.211] Stephen J.      

The objt. cant be get rid of.-

Does not agree that Covenant is triable in the Court of Requests.-

                                                              Roope v Osborne

Dowling CJ.     This was an action of Covenant on a lease to recover unliquidateddamages.  At the trial before Burton J. the plf recovered only 5£; & last term a motion was made to deprive the Plf of his costs on the ground that this sum was recoverable under the N.S.W. Court of Requests Act 3. will.4. No 2. the cause of action having arisen at Wollongong in the district of Illawarra at which place a Court of Requests is periodically holden.-

The question was reserved for consideration.  

By the 1s Section of the local ordinance the Court of Requests has "full power & authority to hear & determine in a summary way, all actionsplaints & suits for the payment & recovery of any debtsdamages, or matternot exceeding 10£ sterling," except as excepted, an action of Covenant not being one of the exceptions.  The 7h Section deprives a [p.212] plaintiff of his costs, who sues in the Supreme Court for any debt or demand, except as excepted in the 1st Section not exceeding 10£ andrecoverable in the Requests or for any debt or demand which might have been recovered in the Court of Requests.  This section uses the words "damages, ormatter", in the first section.  I think however that both sections must have the same construction, as far as the jurisdiction of the Court of Requests is limited to  cause of action not exceeding 10£ in amount or value.-  I am clearly of opinion that under the comprehensive words of the first section, the Court of Requests has jurisdiction of an action of Covenant, where the party confines his demand for damages to 10£; but that where the party bona fide seeks unliquidated damages in this Court, he is not to be deprived of his costs because he leapp [?] to recover less that 10£.  The Court of Requests act being in restraint of the common law right of a party to bring his suit in the superior [p.213] Courts of Justice, there ought to be clear words to oust the jurisdiction of this Court.  Here it appears that the Plf sought to recover unliquidated damages, & brought his action in the expectation of recovering more than 10£.  We are not at liberty to look into the reason why he did not recover more than 5£.  If inCovenant a party chooses to limit his claim of damages to 10£ he may sue if he pleases in the Court of Requests, & the Commissioner may take cognizance of the action, but he is not compelled to confine his demand to that amount, if he thinks a higher Court of Justice will afford him a more ample compensation.  The words of the Court of Requests act are very extensive & would comprehend every species of money demand & claim for damages, except in the cases specially excepted, provided the demand does not exceed 10£.  The words "all actions, plaints, & suits, for the payment of recovery of any debts, damages or matters," would include assumpsit, debt, covenant, trover, trespass, & case provided the party did not seel to recover more than 10£.  In how many actions of trespass quare clausum fregit, trespass on the case, [p.214] & trover, brought in this Court, has the Plf recovered far less than 10£ damages! and yet did any branch of the profession conceive that the party was thereby disentitled to costs under the Court of Requests act?  If in the construction of this act, the measure of damages given by a Jury, upon an unliquidated demand, were to be held the demand for which the action was brought, it would cut by the roots a vast number of suits which have been very properly brought in this court for many actions of trespass quare clausum fregit - of trover - of case for libel, & others brought in this Court the damages have been no more than a farthing, & yet could it be held that the Plf would be deprived of his costs by operation of the Requests Act?  it is true that in the cases to which I have alluded the costs have been regulated by Statute, but having reference to the jurisdiction given by the local ordinance, then are cases in which the parties might have sought a remedy in the Requests if he limited his demand [p.215] to 10£.  The 7h Section applies to demands "which might have been recovered".  Now if this was a demand for unliquidated damages, it could not have been recovered & therefore it is not a case which falls within the purview of the act, which has references to actions of trifling amount & involving no legal difficulty not exceeding 10£.  With every desire to give the most liberal construction to the act, I think that in an action of this kind, because the party happened to recover only 5£ he was to be deprived of his costs such a decision would embrace all actions of covenant, no matter how large the amount of damages which the party might seekbona fide to recover.  In actions of covenant there are often important questions of law involved, & it would be unjust to compel the party to limit his remedy to the summary jurisdiction of a Court of Requests & deprive him of the benefit of the decision of a higher tribunal.  Looking to the general scope & intention of the act, which has for its object, the cheap & speedy administration [p.216] of justice in trifling disputes between man, requiring neither the expense of a jury, not the possession of much legal acumen in the functionaries appointed to determine the rights of the parties, I think nothing but express words should oust the jurisdiction of this Court in an action of covenant for unliquidated damages.

Burton J. differs

Stephen J. concurred with me.

Rule discharged without costs.

Published by the Division of Law, Macquarie University