Skip to Content

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

Melbourne Corporation, In re Falkener (1843) NSW Sel Cas (Dowling) 247; [1843] NSWSupC 18

quo warranto, local government

Supreme Court of New South Wales

Dowling C.J., Burton and Stephen JJ, 18 April 1843

Source: Dowling, Select Cases, Vol. 6, S.R.N.S.W. 2/3464, p. 400.

Where a councillor of the Corporation of Melbourne moved to impeach the right of another person to act as a councillor on the grounds that the Corporation of Melbourne had no lawful existence; held that a writ of quo warranto would not lie on the grounds that the objection, if upheld, would be equally applicable to the title of the objector.*

In the matter of the application of John Pascoe Fawkner, made to Willis J., the resident Judge at Port Philip, for a rule calling upon John Stephen to shew cause why an information in the nature of a quo warranto should not be filed against him to shew by what authority held and exercised the office of a town councillor of the Corporation of Melbourne.

Dowling C.J. By an act of the Governor and Council of this Colony entitled "An act for the further advancement of the law and for the better advancement of justice" (5 Vic. No. 9 (1841), s. 11) it is enacted. "That it shall be lawful for the resident Judge at Port Philip from time to time in any cause or matter, civil or criminal, pending before him, to state on cause or direct to be stated, and to transmit to the Judges of the Supreme Court at Sydney, under his hand and seal, for their opinion and decision thereon, any special case, or to reserve for such opinion and decision any point or points of law at his discretion: and the said Judges, after argument before them (or without argument if they think fit) shall as soon as conceivably may be, certify and transmit to such judge their opinions and decision thereon accordingly, which decision shall thereafter (on the point or matter in question) be binding and conclusive".

On the 22nd day of March last the Judges of this Court received under the hand and seal of Willis J., the resident Judge, a paper writing bearing date the eighth day of March 1843 in the following terms:

To their Honors the Judges of the Supreme Court of New South Wales at Sydney.

I John Walpole Willis, Resident Judge of the Supreme Court of New South Wales for the district of Port Philip, pursuant to 5.Vic. No. 9, s. 11 do hereby transmit to your Honors as Judges of the Supreme Court at Sydney, the following case for your opinion and decision thereon:

On the 26th day of January W.J.P. Fawkner, a member of the Melbourne town council, obtained a rule nisi for leave to file a criminal information in the nature of quo warranto against Mr John Stephen, who had been recently elected a town councilor on the affidavits in support of the application hereto annexed. On the 31st January last, cause was shewn by Mr Stephen in person against the rule on the three several grounds, correctly stated, as Mr Stephen admits, in the opinion I have given on the subject, as contained in the printed paper also hereunto annexed, and on the further grounds that if the act for the incorporation of Melbourne be valid, the 58th section provides a remedy and that therefore there was no necessity to apply for a writ of quo warranto; and further that the affidavits in support of the rule were insufficient and rebutted by those filed on behalf of him the defendant John Stephen. Certified copies of these affidavits also are hereunto annexed. The rule has been enlarged till the 15 of April next, and will be further enlarged from time to time, until the decision of the Supreme Court at Sydney be obtained. Given &c.

Annexed to this paper writing was a copy of a printed newspaper entitled " The Port Philip Gazette " under date Saturday March 18th 1843, containing (notwithstanding the enlargement of the rule until the 15th of the present month of April for the decision of the Judges) the reported opinion of the learned Judge on the case, with the following note in His Honor's writing - "I hereby certify that the above is in substance the opinion given by me in this case". John Walpole Willis. Resident Judge.

At the same time were received certified copies of the affidavits filed respectively in support of and against the application for the quo warranto. We have taken the earliest opportunity afforded with reference to other public duties, to consider the case thus transmitted for our decision, and have appointed this day to deliver our opinion.

We collect from the papers thus transmitted to us, that the learned Judge has not decided or given any opinion on the only question properly arising on the affidavits in support of and against the application for the quo warranto, namely whether Mr John Stephen at the time of his election as town councillor had the proper qualification required by the Melbourne Corporation Act, 6 Vic. No. 7 (1842), s. 12. There is indeed the elaborate opinion of His Honor upon other points; but these as it appears to us, neither the relator nor the defendant was competent by law to take, inasmuch as they went to maintain that the Corporation of Melbourne had no lawful existence. Both these parties swear that they are members of the corporation, the one a businessman and the other a town councilor, to which the latter had been duly elected and which office he had accepted and had signed the declaration prescribed by the Melbourne Corporation Act . It was competent to neither of them therefore to set up an objection which if tenable applied to the title of both.

It is a settled rule, that the Court will not permit one corporator to object to the title of another, if the objection that he makes to the title of that other be equally applicable to his own; R. v. Cudlipp (1796) [ R. v. Cudlipp (1796) 6 T.R. 503, 10 E.R. 670 ]. In that case Lord Kenyon said this was an objection "which has always been held to be fatal in cases to which it applied, namely, that persons who make this application all stand in the same situation as the defendant, and that they have no title to their respective offices if their objection to the defendant's election were to prevail". So in R. v. Cowell (1825) [ R. v. Cowell (1825) 6 Dow & Ryl 336 ] it was held that the Court would not file a quo warranto information against one corporator for defect of title, at the instance of another whose title is equally deficient, although the latter has enjoyed his office many years uninterruptedly. In that case the Court said "The rule laid down in R. v. Cudlipp is a sound and wholesome rule, and one which it would be very injudicious to depart from". It is strictly applicable to the present case, and therefore we are bound to act upon it, and to refuse the information now applied for.

The length of time during which the relator has been holding his office, under the very defect which he now seeks to bring home to the defendant, by no means cures the objection or entitles him to more consideration from the Court". These cases are no doubt converse to the present, in as much as the objection was not made by the relator here but by the defendant himself, but if it would not lie in the mouth of the relator to make the objection, supposing it to be a sound one, a multo fortiori it was not open to the defendant to make it, for if allowed it would be an admission at once that he could not be a town councilor of Melbourne, an admission utterly inconsistent with his affidavit, which it seriously maintains that he was only duly qualified in respect of property to be elected, but had been in fact elected and had accepted the office. He, at all events, could not be allowed to blow hot and cold. Such an objection, in answer to the application was perfectly suicidal, and repugnant to common sense; for it amounted to this, that the defendant pretended to shew a right to be a councilor of the Corporation of Melbourne by shewing that no such corporation existed. The affidavits in the case, and upon which alone the Court below could be called upon to decide, are wholly silent as to any objection to the lawful existence of the Corporation of Melbourne.

It appears to us therefore that the learned Judge ought not to have allowed either the defendant or the relator to make any such objection, and with all deference and respect be it spoken, the opinion delivered by the learned Judge thereon was wholly irrelevant to the only question at issue, was manifestly extra-judicial and consequently of no obligation upon anybody in point of law, as impeaching the act of the Governor and council, by which the Corporation of Melbourne was established.

It is not without repugnance that we observe upon the informality in this statement of the case presented for our consideration. It does not contour a succinct finding of facts, or statement of the points raised and questions intended to be reserved for our consideration. Professing to state a case, in due form, the learned Judge refers us first to the affidavits annexed and secondly to a newspaper report of His Honor's opinion, to collect three several grounds "correctly stated as Mr Stephen admits" to be the grounds taken by him; and then specifies two other grounds as part of the case. The informality thus obvious leaves us to guess only at the question which it is competent for us to decide, for no question is distinctly and categorically put for our determination. In order however, to avoid the seeming disingenuity of sending back the case for more correct and formal statement we have taken upon ourselves to read the newspaper report of the opinion to which we have been referred.

The written case states that in that opinion there are three several grounds stated to have been taken by Mr Stephen, but we have been unable to find more than two, both of which go, not to the question arising on the affidavits, but to the force and validity of the act of the Governor and Council establishing the Melbourne Corporation. We have already intimated our clear opinion that it was not competent for Mr Stephen to make, or for the Court below to entertain, such grounds on such an application. If the learned Judge desires our opinions upon questions not properly sub judice, we must disclaim all authority or power to comply with his request.

The only question as it appears to us, which it was the province of the Court below to determine on this specific proceeding was whether the relator had made out such a constat of facts as to justify the granting of a quo warranto information. That question was to be determined on consideration of the affidavits on both sides. The learned Judge below has not drawn any conclusion from the affidavits, nor certified his opinion thereon. He has sent them in the gross for our determination, leaving us to extract and decide upon the question or questions therein presented.

In the case, as stated by the learned Judge, one of the defendant's grounds of opposition to the motion was "that the affidavits in support of the rule were insufficient and were rebutted by those filed on behalf of the defendant". Presuming that the learned Judge desires our opinion upon this point, we have no hesitation in holding that the application was sufficiently answered to warrant the Judge in discharging the rule; leaving the relator to any other remedy he might be advised to adopt.

The main ground of the application for the quo warranto was that the relator had been informed and believed that the defendant at the time of his election had not the property qualification requisite. Two other deponents also swore to the same purport, from information and belief. These affidavits are met by the direct and positive affidavits of the defendant, and others, which prove distinctly a property qualification and occupation in and by the defendant, such as is required for a businessman and councilor by the Melbourne Corporation Act . Both sets of affidavits contain other matters not necessary to the determination of the property qualification but on this part of the case we abstain from offering any observation. Whether the only remedy open to the relator was to sue under the 58th section of the Melbourne Corporation Act for penalties it is scarcely necessary to discuss, for as the Act does not oust the Supreme Court of its common law jurisdiction in granting quo warranto, there seems to be no objection to such a proceeding, though it is a matter in the discretion of the Court whether it will grant a quo warranto information or not: R. v. Davies (1755) [ R. v. Davies (1755) Say. 241, 96 E.R. 866 ], R. v. Trevenen (1819) [ R. v. Trevenen (1819) 2 B. & A. 479, 106 E.R. 441 ].

Upon the main and only legitimate question arising upon the affidavits we are of opinion that the application was satisfactorily answered and that the rule nisi for the information ought to have been discharged. When the question, as to the validity of the Act constituting the Corporation of Melbourne, shall regularly and properly arise, if it ever shall do so, there are (as it appears to us) other points than those to which Mr Justice Willis has adverted, on which the decision of that question will depend. We abstain, however, from offering any opinion whatsoever, at present, which may tend to prejudice the arguments on the other side in a matter, as yet not under our cognizance; and on which we hold that it is irreconcilable with the duty of any judge needlessly to give rise to discussion.

Upon the only point determinable in the case presented for our consideration, we are unanimously of opinion that the rule nisi for the quo warranto information must be discharged with costs. Such costs, when taxed by the proper office to be paid by the relator to the defendant and we so decide accordingly.

Published by the Division of Law, Macquarie University