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

Ex parte Palmer [1847] NSWSupC 25

certiorari, prohibition, Court of Requests

Supreme Court of New South Wales

Stephen C.J., 23 August 1847

Source: Sydney Morning Herald, 7 September 1847, in Supreme Court Collection, Vol. 2, p. 10




Mr. MARTIN appeared on behalf of Mr. William Nottingham Palmer, in support of a Judge's summons, calling upon Alfred Cheeke, Esq., the Commissioner of the Court of Requests for the county of Cumberland, to show cause why a writ of certiorari should not issue, commanding the said Alfred Cheeke to send to the Supreme Court under his hand and seal the record of a certain cause tried in the said Court of Requests on the tenth day of August last, in which John Cochran was plaintiff and the above-named William Nottingham Palmer was defendant, together with all things touching the same. The grounds stated in the summons were two --- first, that there was no evidence whatever to warrant the assessors in finding a verdict for the plaintiff; and, secondly, that the Commissioner had taken no part with the assessors in deliberating upon the said verdict. Affidavits had been filed on behalf of Mr. Palmer, showing that no evidence had been adduced by the plaintiff in the Court below to warrant the verdict given by the assessors; and, further, that the Commissioner had expressly admitted, that he had taken no part in deliberating upon such verdict. Mr. Martin proceeded to show, first, that the writ of certiorari was not taken away; and, secondly, that there were sufficient grounds to warrant the issuing of it in the present case. The writ of certiorari, he contended, could not be taken away virtually or by inference, but by express words alone; and in support of this he cited R. v. Morley and others, 2 Burr, 1040. He cited also the cases of R. v. Terret, 2 T.R., 734, and R. v. Kaye, 1 Dowl. and Ry., Ma. Ca., 114, in the latter of which it was held, that where a statute creates a certain offence as regards a particular branch of manufacture, and a second statute extends that offence to another branch of manufacture, and the writ of certiorari is subsequently taken away for any conviction under the second act, yet the certiorari is not taken away for any conviction under both acts. He then read the 34th section of the Court of Requests Act, 6 Vic., No. 15, by which it is enacted that no proceeding had by virtue of that act, shall be removed by certiorari or otherwise. The restriction there was confined to proceedings had "by virtue" of the act; and unless the proceedings in the present case were by virtue of the Act 6 Vic., No. 15, the writ of certiorari was not taken away by that section; but it was quite clear that these proceedings were not by virtue of the 6 Vic., No. 15, for the jurisdiction now exercised by the Court of Requests for Cumberland was given to it by the 3rd and 4th sections of the Small Debts' Act, 10 Vic., No.10, and every verdict or judgment in these Courts was given by virtue of that Act. The 34th section then, of the 6th Victoria, No. 15, could not take away the right to the certiorari now asked for; and there was no clause in the Small Debts Act taking it away, except as to proceedings in the Courts of Petty Sessions. There being no clause, therefore, in any Act expressly taking away the writ, it might be issued to remove a record of the judgment and other proceedings from the Court of Requests. The next question to consider was, whether sufficient grounds had been shown for the issuing of it in the present case. It was laid down, that although some grounds must be shown, still a slight one would be sufficient. 2 T.R., 90. And further, that although the superior court will not interfere where there has been any evidence to warrant the decision in the Court below, yet it will interfere where there was no such evidence, or to see that the legal inference has been drawn from the evidence. 5 T.R., 336, and the note in Paley, pages 297, 298. Here there was no evidence at all to warrant the verdict. This was the first ground. The second depended upon the construction of the 5th section of the 6th Victoria, No. 15. By that section it is stated, that the Commissioner is to be assisted by two assessors. How could the assessors be said to assist the Commissioner unless he did something which they were to take a part with him in performing? The clause further provided, that in the event of a difference of opinion between the assessors the verdict of a majority, consisting of one assessor and the Commissioner, should be equivalent to the verdict of all. Why should the word all have been used unless it had been contemplated that there should be sometimes a verdict of all? Besides, on looking to the third section of the Act it would be seen that in cases up to ten pounds the Commissioner decided upon the facts alone; but by the fifth section it was provided, that in cases above ten pounds he was to be assisted by two assessors. This must mean, that he was to be assisted in the performance of the same duties as he performed in the ten pounds cases. In the present case it was sworn that the Commissioner had taken no part in giving or in deliberating upon the verdict, and therefore that there was no verdict or judgment as required by the Act. On these grounds he submitted the writ of certiorari ought to issue.

Mr. BROADHURST, who appeared on behalf of Mr. Cheeke, contended, first, that there was some evidence to warrant the verdict, and read an affidavit of the plaintiff's attorney in the Court below, in which the evidence was set out at full length, and he submitted that if there was such evidence the Supreme Court would not do what would in effect be granting a new trial. The construction put upon the 5th section of the 6th Vic. No. 15 was wholly untenable, for there it was distinctly enacted that the Assessors were to be sworn to give a true verdict upon the evidence, which verdict was to be the verdict of the Court. The Commissioner therefore had nothing to do with deliberating upon or giving the verdict. It was besides too late to apply for a writ of certiorari after judgment, and the writ of certiorari only lies to Courts of Record, and the Court of Requests was only a Court of Record for the particular purpose mentioned in the 10th section of the Act.

Mr. MARTIN in reply contended that the Court of Requests was a Court of re cord independently of the 10th section, for by the 20th section power is given to the Commissioner to fine and imprison for contempt, and every Court to which this power is given is immediately thereby made a Court of Record. Bac. Ab. Courts D. 2. Besides, admitting it not to be a Court of Record, still a certiorari lies, unless taken away. "Where any Court is erected by statute a certiorari lies to it." Groenvelt v. Burwell, 1 Ld. Raymond, 469, and Rex v. Inhabitants of Glamorganshire, 1 Ld. Raymond, 480, to the same effect. The case as to certiorari not issuing after judgment, referred to Courts to which special acts respecting the certiorari applied, but not to the Court of Requests.

The CHIEF JUSTICE took time to consider, and said that he would consult the other Judges. On the Wednesday following, he said that he would not decide the matter himself, as it was of considerable importance, but would enlarge the Judge's summons until the first day of next term, which was accordingly done. He suggested at the same time, that perhaps a writ of prohibition would be the proper remedy.

Dickinson J., 30 August 1847

Source: Sydney Morning Herald, 7 September 1847, in Supreme Court Collection, Vol. 2, p. 11




Mr. MARTIN appeared on behalf of Mr. Palmer in support of a Judge's summons, calling upon Mr. Cheeke, the Commissioner of the Court of Requests for Cumberland, and John Cochran, the plaintiff in a certain cause in the said Court, in which the said Palmer was defendant, to show cause why a writ of prohibition should not issue, prohibiting them from enforcing any writ of execution in the said cause, or from doing anything further therein, or from holding or prosecuting any further act or proceeding therein; on the grounds that the said Commissioner misconstrued the Court of Requests Act by allowing the assessors to give a verdict without joining with them in deliberating upon it; and that there was no evidence to warrant a verdict. The first was the main ground on which he relied, and he used the same arguments as in the previous application in the matter, to show that the assessors ought to assist the Commissioner in deliberating upon the verdict. He cited the case Brymer v. Atkins, 1 H.B., 187-188, to show that a prohibition will issue under such circumstances. He also cited several authorities in Bac. Ab. Prohibition, H. and I.

Mr. GOWLAND, who appeared for the Commissioner and the plaintiff in the Court below, argued as Mr. Broadhurst did in the previous application, that the two assessors were to give a verdict, which verdict was to be the verdict of the Court. He also contended that prohibition could not issue in the present case, and cited Dutens v. Robson, 1. H.B., 100, and Grant v. Gould, 2. H.B. 101, and Home v. Earl Camden and others, 2. H.B. 476.

Mr. MARTIN replied, pointing out the inapplicability of the cases cited by Mr. Gowland.

Mr. Justice DICKINSON delivered his opinion as follows:-

This was a case brought before me at Chambers, as one of urgency, and was stated to be such in the summons.

An action was brought in the Court of Requests, the Commissioner did not deliberate with the Assessors when they considered their verdict; the Commissioner announced the result of their deliberation, in these words: "the Assessors find for the plaintiff, seventeen pounds." A motion to prohibit execution was made, upon the ground that the Commissioner not having joined in deliberation with the Assessors, that verdict was not warranted by the statute 6th Victoria, No. 15, sect. 5.

By that section the Commissioner is to be assisted by the two Assessors; the Assessors shall be sworn to give a true verdict, which shall be the verdict of the Court; if the Assessors differ, the verdict of one Assessor and the Commissioner shall be equivalent to the verdict of all.

It will be observed that where the statute says, that the Assessors shall be sworn to give a true verdict, such verdict shall be as the verdict --- not of themselves as in the case of a Jury, but of the Court, and the statute could hardly have intended that that should be delivered as the finding of the whole Court, unless the whole Court had deliberated upon it.

It appears to me, moreover, that the Assessors are appointed by the statute to assist the Commissioner; as the statute appoints a person legally educated to be the Commissioner, the legislature could not have intended that the Assessors should assist the Commissioner in points of law; the only assistance therefore they could render him, would be in determining the facts, and estimating the damages, and he would require no such assistance unless it was his duty to deliberate upon the facts.

It is moreover provided that the verdict of the Commissioner and one Assessor shall be equivalent to the verdict of all. No effect can be given to the word "all," unless it can be seen from the wording of the enactment that the legislature contemplated the occasional agreement of all in their verdict, which could not properly be without a general consultation. My opinion is, that the Commissioner should deliberate with the two Assessors; he should then ascertain their opinion; if they agree he must announce their common opinion as the verdict of the whole Court; if they disagree, he must announce the common opinion of himself and one of the Assessors, as the verdict of all the Court. Were it otherwise, there must necessarily be two deliberations, first by the two Assessors, and secondly by the Commissioner with the two Assessors, in order to enable him to form his opinion. I am of opinion therefore, that the Court of Requests has in this instance (though upon a subject matter within its cognizance) proceeded in a manner not authorised by the statute which gives it jurisdiction, and therefore the prohibition must issue.

An order was therefore taken out, and by virtue thereof a writ of prohibition was issued, prohibiting Mr. Cheeke, and the plaintiff Cockran, from enforcing any writ of execution in the case in the Court below, or taking any further proceedings thereon.

Stephen C.J., 11 October 1847

Source: Sydney Morning Herald, 12 October 1847, in Supreme Court Collection, Vol. 2, p. 16


In this case, as in the last, a Judge in Chambers had been called upon in vacation, under the same Act of Council, to exercise an extraordinary jurisdiction, viz. --- to issue a prohibition to the Commissioner of the Court of Requests, to refrain from further proceedings in a cause which was tried before him, in which Palmer was defendant, and against whom a verdict passed ion that Court. The learned Judge being satisfied that the application was well founded, and that it was a case of emergency, did grant a writ of prohibition; but which, under the particular Act of Council before alluded to, to be of any use beyond the first day of Term, must be confirmed. To-day, therefore.

Mr. LOWE moved that the Court would confirm the said order. It appeared that the Commissioner had misconstrued, as it was alleged, the 5th sec. Of the 6 Vic. 15 (the Court of Requests Act). The cause in question came on to be tried before him and two assessors, and that the assessors found a verdict for the plaintiff., The error complained of was, that the Commissioner did not take part in the verdict, as that section compelled him, but allowed the Assessors alone to find a verdict. It was contended that taking all the statutes to be found in pari material , that the legislature when they introduced this clause, could only have intended that the Commissioner should take part in, and be assisted by the Assessors in the verdict; though it must be confessed that that meaning was not very clearly expressed by the clause. Then as to a writ of prohibition being the right remedy to prevent the Court of Requests from proceeding to judgment, &c., on the verdict, Brymer v. Atkins, 1. H. Blackstone's Rep. 187; Bacon's Abt. Letter J.; Grant v. Gould, 2 Black Rep. 100 were cited.

Mr. BROADHURST, on behalf of the Commissioner, and the plaintiff in the cause, appeared against the confirmation of the order; and contended, first, that this was not a case for a prohibition to issue in; having previously made a point to the effect from the proceedings now before the Court, (the same point, in fact, on which the last case was dismissed), the Court had nothing to confirm, for it did not appear that the Judge who made the order had jurisdiction to do so; but upon the learned counsel being informed of the decision in Palmer's case, and as the facts of the present case were stronger than that, this pointy was not further argued. A prohibition it was said, will only lie to a Court that takes recognizance of matters not within its jurisdiction, but in a manner against the laws of the land. The proper remedy was here, by way of "appeal," or "review." Here too, sentence has passed, and the objection made to the proceedings does not amount to an error on the face of them, and therefore now, prohibition will not lie, it being too late. Again, secondly, the affidavit used on the other side, which informed the Court in what manner the verdict was found, ought not to have been received; because it ought to be viewed in the light of proceeding from one who lay by and took the chance of getting a verdict, but being disappointed, then complained of the mode of trial. It was submitted that as to the construction put upon the section by the Commissioner, it was the correct one; and that he did right in abstaining from assisting or taking part in the verdict delivered by the assessors. It was the practice in this very Court, when trial by jury was not so common as it is now, but when a Judge was assisted in the trial of a civil cause, by two assessors, that the Judge who presided (at least it was stated to be so by the late Chief Justice, and Sir W. Burton) did not take part in the verdict. For these reasons, therefore, it was lastly urged that the motion must be dismissed, and as it was of an experimental nature, with costs. The following cases were cited in the course of the argument:--- Christie v. Unwin, 11 A. and E.; 2 H. Blackst., Ricketts v. Bodenham, 4 A. and E. 433; Humby v. Robinson, 3 M. and W.; Exparte Smythe, 3 A. and E. 719; and 2 C.M. and Ros., 753; 2 Bing. 341 and 463.

Mr. LOWE was called upon in reply, to answer some of the objections urged upon the other side, that weighed with the Court. And first, as to the construction the Commissioner had arrived at, that was wrong, urging the same arguments as before. And secondly, as to the lying by and taking the chance of a verdict in his favour, --- and therefore a prohibition would not now go; upon examining into the nature of the error complained of, it would appear that the act and its consequence were the operation of an instant, it would have been impossible for the injured party to have objected to the error at the time --- therefore this objection ought not to prevail. Then as to the last point, that because sentence had passed the writ could not issue. But here, if this objection were to prevail, it would be successfully contended, that the same act that caused the error would also cure it; for it is the very way in which the verdict was arrived at, is the thing complained of; yet because that verdict is a verdict, therefore the injured party cannot have a remedy. It would be a wrong without a remedy, --- a thing unknown to the English law. Here the Court stopped Mr. LOWE, and the CHIEF JUSTICE said, that although there was great difficulty in arriving at a safe conclusion upon reading the 5th section of the Act, and whichever way it was construed, it would be attended with difficulties; yet the one attended with least difficulty is to decide that the Commissioner ought to have taken part in the verdict. As to the point of laying by, &c., that ought not, and had not, any weight with the Court, for it was at the utmost a mere point of law, and an ordinary bystander would not have noticed the irregularity; and, therefore, the non-notice at the time of its happening ought not to preclude him from taking advantage of it at a later period. And as to the other objection, whether a prohibition ought to go, here was a clear misconstruction, if not violation, of the Act; and that misconstruction did not happen until the very verdict or sentence was passed; and therefore the cases cited to show that the writ was too late, were not in point, for, under the circumstances, the writ could not have been asked for before.

The other Judges concurred, and the prohibition was confirmed, without costs.

Published by the Division of Law, Macquarie University