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

Ex parte Pearse (1844) NSW Sel Cas (Dowling) 264; [1844] NSWSupC 3

mandamus - common informer, reward - liquor laws

Supreme Court of New South Wales

Dowling C.J., Burton and Stephen JJ, 15 April 1844

Source: Dowling, Select Cases, New Series, Vol. 2, S.R.N.S.W. 2/3468 p. 29

Whether a common informer, entitled to a moiety of penalties paid and received by virtue of 2 Vic. No. 18 (1838), has the right to sue under the statute.*

Dowling C.J. During last term, the Court granted a rule nisi for a mandamus to be directed to Charles Windeyer and Thomas Broughton Esquires, two of Her Majesty's justices of the peace in and for the city of Sydney and county of Cumberland, to hear and determine at the instance of a common informer an information against one Thomas Stone for selling spirituous liquors without being duly licensed, contrary to 2 Vic. No. 18.

The justices had refused to proceed with the case on the ground that they were of the opinion that a common informer was not authorized to exhibit such an information. The application was stated to have been made, not in a hostile spirit, but rather for the convenience of the justices who were anxious to have the question determined by the adjudication of this Court. On shewing cause against the rule nisi, it was contended that as 2 Vic. No. 18 did not, in express terms, give the right to a common informer to sue for the penalties incurred by the Act, the justices had no jurisdiction to hear and determine an information at the instance of a common informer.

The question arose upon the construction of the 80th section of the Act, by which it is enacted "That one moiety of all fines and penalties paid and received by virtue of this act, shall go to the use of the party or parties informing and suing for the same. After payment and deduction thereof, the sum or sums of money collected, levied or received, under and by virtue of this Act, shall be paid into the hands of the colonial Treasurer, and be appropriated to the use of Her Majesty, her Heirs and Successors for the public uses of the said colony, and the support of the Government thereof". This is the only clause in the Act bearing upon the point raised, except the 74th section which enacts that all offences against the Act shall be heard and determined in a summary way, according to the law in force for the time being, regulating summary proceedings before justices of the peace, "except only, where some other special course of proceeding may be directed by this act". On referring to the Summary Jurisdiction Regulating Act 5 Wm 4 No. 22 (1835), we do not find any express provision authorizing common informers to sue for penalties. It contains a general clause, section 6, enacting the manner in which penalties imposed shall be distributed, but does not, except by implication, point out that a common informer may sue for them. That section will not therefore aid the construction of the special course of proceeding directed by 2 Vic. No. 18, s. 80 which we are now called upon to interpret.

The question is whether we are bound by necessary implication and intendment, to hold that inasmuch as the 80th section says that one moiety of all fines and penalties paid and received, i.e. when paid and received, shall go to the use of the party informing and suing for the same, it is a common informer who may sue. Or, in other words, inasmuch as a common informer has a right to receive the moiety of the penalties when paid, he has an equal right to set the justices in motion and demand the infliction of the penalties.

The case of Fleming. v. Bailey (1804) [ Fleming v. Bailey (1804) 5 East. 313, 102 E.R. 1090] (which appears to have influenced the justices below in refusing to entertain the information) was cited as an express authority for holding that a common informer cannot sue, although he may receive a moiety of the penalty when paid under the local Act. In the case referred to, a common informer brought a qui tam action for three penalties of £20 each, for a violation of the Printer's Act , 38 Geo. 3 c. 78 (1798). By the 35th section of that Act any penalty exceeding £20 may be sued for by any person in any Court of Record at Westminster, and any penalty not exceeding £20 should and might be recovered before any justice of the peace. The plaintiff in that case sought by cumulative penalties of £20 each to bring the case within the jurisdiction of the King's Bench. However the Court held that as the statute only gave a common informer a right to sue in a court of record where the penalty exceeded £20 the jurisdiction of the King's Bench was ousted, and the plaintiff, by seeking to recover cumulative penalties of £20 each, did not come within the privilege of suing in a court of record. The plaintiff's counsel endeavored to maintain that the jurisdiction of the King's Bench was not ousted; whereupon Lawrence J. said "A common informer cannot sue at common law; therefore you must shew some clause in the Act giving him a power to sue in this particular case." The counsel then referred to the 36th section which enacts, "that all pecuniary penalties imposed by this Act, when recovered, either by action in any court, or in a summary way before any justices, shall be applied by way of, one moiety to the plaintiffs in any such action, or the informer before any justice; the other moiety to the King". Upon this Lawrence J. observed, "That only applies to the penalty when recovered, but does not give the informer the original power to sue for it"; and Lord Ellenborough said, in giving judgment, "A common informer can have no right to sue for any penalty but where power is given to him for that purpose by the statute".

If the case cited had turned upon the question whether the informer could sue before justices for penalties not exceeding £20 and the Court had held in the negative, we might have felt ourselves bound by the decision. However the only point in judgment was whether, as the informer sought to recover cumulative penalties of £20 each, he had a right to recover in a court of record, and the Court held that he had not, because the power of suing was not expressly given. The observations thrown out by Lord Ellenborough C.J. and Lawrence J. were with reference to that point only, and cannot be regarded as a decision on a point not before the Court, and which it was unnecessary to determine. At the utmost, supposing what was thus thrown out by the judges could be applicable to the question raised in this case, they were incidental observations, and must be regarded as obiter dicta. We have been unable to find any case in which Fleming v. Bailey has been recognized as an authority for anything more than what the Court there decided, namely, that suing for cumulative penalties of £20 did not give the informer the power of suing in a superior court of record. We cannot therefore extend that case beyond what the Court plainly intended.

In the modern case of Beilby v. Scott (1840) [ Beilby v. Scott (1840) 7 M. & W. 93, 151 E.R. 692], which was a qui tam action for penalties under the Pilot Act , 6 Geo. 4 c. 125 (1825), s. 70, one of the questions raised was whether under the 83rd section, the plaintiff had a right to maintain the action as a common informer. By that section "One third of all fines or penalties to be levied in pursuance of the act, shall go to the person who shall inform or sue for the same &c". The Court intimated a clear opinion that the action was properly brought by a common informer, although the judgment of the Court in the defendant's favour turned upon the substantial question arising on the construction of the Pilot Act . In that case Fleming v. Bailey was not even alluded to. It is scarcely to be believed that it would have escaped the research of the counsel or of the Court, if it could be deemed an authority for holding that the common informer could not sue because the right of suing was not given in express terms.

There being no authority to support the very strict interpretation of the local Act contended for, we must resort to the received principle which has been acted upon in numerable instances, that where a statute gives the penalty to a particular party, it must be construed to give him a right to sue for it. In Hawkins, Pleas of the Crown , London, 1824 , ch. 25, s. 17 it is thus laid down: "where a statute gives any part of a penalty to he who will sue for it, by action or information &c, I take it to be settled at this day, that anyone may bring such action or information and lay his demand qui tam pro domino rege quam pro se ipso". In this case the local Act says "that one moiety of all fines and penalties paid and received by virtue of the act shall go to the use of the party or parties informing and suing for the same &c". Now it appears to us that by the plain intendment and the necessary construction of this clause, the legislature gives to the party entitled to receive, the right to demand his portion of the penalty.

The rule must therefore be made absolute for the mandamus.

Published by the Division of Law, Macquarie University