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

Starke v. Weller [1841] NSWSupC 75

civil procedure - appeals

Supreme Court of New South Wales

Dowling C.J., Burton and Stephen JJ, 16 July 1841

Source: Sydney Herald, 19 July 1841


            In this cause his Honour the CHIEF JUSTICE had submitted the following case to the other Judges:--

            "On the 16th September, 1840, his Honour Mr. Justice Willis, sitting alone in Equity, dismissed this bill with costs. Under the then existing rules of practice (28th), the plaintiff, within fourteen days from the date of the decision, petitioned and obtained an order for a rehearing of the cause before all the Judges.

            "Before a hearing could be obtained in pursuance of this order, the local ordinance 4th Vict., No. 22, was passed, on the 16th October, 1840; by the 20th section of which, the Judge nominated by the Governor was authorised to "sit and determine, without the assistance of the other Judges or either of them, all causes and matters at any time depending in the Supreme Court in Equity, and coming on to be heard and decided at Sydney," subject to appeal in the manner thereinafter provided.

            "In pursuance of this order made on petition for rehearing this cause before all the Judges, the cause was set down before the Chief Justice alone on Friday, the 9th of July instant, when it was objected that the Chief Justice had no jurisdiction to hear the case alone, the order alluded to having lapsed by the change made in the mode of proceeding by the late local ordinance, and consequently that there could be no rehearing of the case before a single Judge. It was contended that this was not a causenow depending, for it had already been decided, and the right of rehearing under the old rule was gone. It must be an original hearing or nothing; notwithstanding the expenses to which the parties had been put in examining witnesses from time to time atthe former hearings before Mr. Justice Willis, that in effect the suit had abated.

            "The Chief Justice suggested that the parties should by consent allow him pro forma to affirm the decision by Mr. Justice Willis, and bring the cause on for rehearing before all the Judges. This was resisted by the defendant, and the Chief Justice declined going into the case alone, until he consulted his brother Judges, whether in their opinion he had jurisdiction, under the peculiar circumstances of the case to hear and determine the case alone, in pursuance of the order obtained under the 28th rule of practice (now of no force) which authorised a rehearing before all the Judges.

            "He therefore requests that their Honors will be pleased to certify their opinion in this matter."

                                    "(Signed)                      "JAMES DOWLING."

            15th July, 1841."

            On the above case he received the following opinion, which was delivered on Friday.

            "We have considered this case, and we are of opinion that the cause was one "depending in the Supreme Court, and coming on to be heard and decided at Sydney," within the terms of the 4th Victoria, No. 22, sec. 20, at the time when that Act was passed; and consequently we think that the Chief Justice had power to "sit and hear and determine thereon" alone: but still subject to an appeal, as by 4th Victoria, is provided."

                                    "(Signed)                      "W. W. BURTON,

                                                            ALFRED STEPHEN."

Published by the Division of Law, Macquarie University