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

O'Neill v. Clarke [1847] NSWSupC 45

Small Debts Act, procedure

Supreme Court of New South Wales

Stephen C.J., June 1847

Source: Sydney Morning Herald, 9 June 1847, in Supreme Court Collection, Vol. 1, pp 118-119

His Honor the CHIEF JUSTICE delivered the following judgment in Chambers:-

In this case the defendant applied to a Judge, to restrain the plaintiff from entering up judgment for more than £10, or to give the defendant leave to enter a suggestion, to deprive the plaintiff of costs. The application was heard before the Court; and dismissed on a technical objection, the defendant having leave to come again.

2. The defendant then applied anew, in the same terms as before, not to the Court, but to a Judge. By arrangement, however, the matter came on for argument before the Court. The plaintiff had actually signed and recorded judgment, prior to this second application. The application, however, was in the same terms as before - not to try to set aside either the judgment, or the taxation of costs; but to restrain the plaintiff from "having or entering up" judgment, for more than £10, or that the defendant might enter a suggestion on the record. The Court held, after consideration, that the plaintiff could not avail himself of the judgment, as the case then stood; there being no Judge's certificate under the Small Debts' Act. They held, nevertheless, that the then application could not be granted; as the plaintiff might thereafter obtain such a certificate, and also as the application could not be supported on the grounds taken.

3. In the summons returnable before the Judge, one of the grounds assigned was, that no such certificate had been given. The whole of the argument, however, before the Court, (although the absence of such a certificate, under the Small Debts' Act, was certainly mentioned by the counsel, in the course of his speech,) was rested in fact on the Court of Requests' Act. Independently of this, the absence of a certificate under the former Act could be no ground for entering a suggestion, of matters applying only to the latter:- and it was no ground for the Order asked for, restraining the plaintiff from entering up judgment, for more than ten pounds: since such a certificate might have been given, the very next day. The Court had, perhaps, power to mould the Order asked for, so as to meet the object; or to do justice to the parties. But there was nothing then before us, to show on what scale the costs had been taxed:- the fact, that no certificate whatever had been given by the Judge, was admitted; but the only certificate spoken of in the affidavits was, a certificate as to the Requests' jurisdiction:- and the taxation was sworn to have been objected to, accordingly, on the ground that as the action was within the Requests' jurisdiction, the plaintiff was not entitled to any costs:- whereas, had the Small Debts' Act been relied on, the application would have been, not to prevent a judgment at any time, but merely to set aside the then judgment as premature. The taxation, as in any event erroneous, would have been objected to; first, as being before certificate given, and secondly as being on the ordinary, instead of the petty or reduced scale.

4. Notwithstanding the declaration of the Court, that the judgment could not be made available, the plaintiff has now caused or directed a levy to be made, under a writ issued on that judgment; for the damages awarded, and for the full costs as taxed. The defendant thereupon applies to me, in Chambers, to set aside the judgment, or to reduce the amount of the levy. The only material fact sworn to, however, in support of the application, is that the plaintiff has obtained no certificate. It is not sworn, that the action was commenced after the passing of the Small Debts' Act; and, although the defendant gives notice of his intention to refer to "the judgment roll , and other proceedings in the cause," he omits to give any notice of reference, (Prac. 179,) to the previous affidavits. The first objection taken, therefore, to the application, is, that the Judge has no judicial knowledge, that the action was in fact posterior to the Small Debts' Act. The plaintiff then claims to refer to the Judgment Roll: but it is objected, that this will prove nothing The writ of summons, which might have been referred to, is not forthcoming; and I have not been able to ascertain, where in fact it is

5. The second and third objections are, that the subject has already been twice before the Judges; and that, as the defendant had no express leave reserved, he cannot come a third time:- and that the defendant should have applied to set aside the taxation of costs; and not merely the judgment and proceedings subsequent thereto. The answers were, that no express leave was necessary; but that, at all events, the defendant may apply to be relieved from a fresh step:- and, as to the taxation, that as the judgment is necessarily wrong, according to the previous decision of the Court, the taxation may be left out of the question. It is to be observed, that the fact still is left undecided, on the affidavits, whether the taxation has been on the reduced scale or not.

6. I have conferred with the other Judges on this very perplexing matter; but it will be seen, that the decision must be regarded as my own only. Where I have obtained their opinion, however, I mention the fact for the guidance of the parties. We agree, that the execution cannot be allowed to be put in force; but the difficulty is, to see our way clearly to a decision, on the present application. It was objected for the plaintiff, (which I have omitted to mention in its proper place,) that a single Judge, the application not being put on the ground of urgency, cannot do what is here asked. The proceedings may, however, at all events, be stayed until the Term; and, on the whole, as the signing of the judgment is the act of the plaintiff, not in reality of the Court, we are of opinion that the judgment may be set aside by the Judge. We think, further, that an application directed plainly to one object, in which a party is entitled to succeed, may be moulded by the Court, or a Judge, so as to embrace another object, without reference to which it could not be sustained. So that, if the defendant could not procure a vacation of the judgment, without the disposal also of the taxation of costs, the latter may be directed on the present application. We are also of opinion, under the circumstances, that the defendant was entitled to apply as he has done; and that no leave was necessary.

7. The difficulty still remains: what is now to be done. I have considered, with my colleagues, whether I could look at the Judgment Roll. I am of opinion that I may. Not, however, under the Rule in Prac. 179; but, because it has been the constant practice, independently of that Rule, to refer to the record, in (I believe) all the jurisdictions of the Court - and because there is at all events one occasion, in which the Court at Westminster do so; namely, on a motion for a new trial The record, indeed, is in the breast of the Court itself; and where a Judge of the same Court sits, to adjudicate on a point which that record will determine, it seems to me that he ought to refer to it for that purpose. These grounds, however, were not submitted by me, for the opinion of the other Judges; as it then occurred to me to consider the point, under the written Rule merely. At the time of our conference, also, I thought that the writ of summons, fixing the time of the commencement of the action, was among the papers; in which case, the question of reference to the record became immaterial.

8. The record being referred to, the next question is, does it sufficiently prove, that the action was commenced after the 30 th day of October last. And, though not without hesitation, I think that (in the absence of any evidence to the contrary) it does; as the day of filing the declaration is the 6 th March, and the injury is therein stated to have occurred, on the 1 st February, 1847. But, independently of this, I think myself bound by the recent decision of the Court, in this very case; which was, that the judgment obtained was then erroneous. On whatever grounds, or state of facts the Court so held, such was the decision; and, therefore, without proof by the plaintiff of some new fact, to make that judgment now available, such I conceive must be my decision now.

9. That being so, I have here an application specifically to set aside that judgment; and the ground on which the application rests, and is specifically rested, is the true one. It is, that as yet no certificate has been obtained under the late Act, to entitle the plaintiff to costs, according to the judgment. I therefore set aside the taxation of costs, as well as that judgment and all proceedings under it; with costs to be paid by the plaintiff.

Published by the Division of Law, Macquarie University