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

Reynolds v. Tree [1847] NSWSupC 48

practice, power of Judge in Chambers

Supreme Court of New South Wales

Full Court, 11 October 1847

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

Before the full COURT.


In this case, during vacation, His Honor Mr. Justice Therry had granted an order to stay proceedings in the above cause, by virtue of the 27th section of the 4th Vic. 22, which empowers a single Judge in Chambers, during vacation, in a case of emergency, to exercise the powers of the full Court. The same Act enacts that the party who succeeds before the Judge as aforesaid must apply to the Court on the first day of term, to have that order confirmed.

Mr. FOSTER, therefore, (it being the first convenient opportunity since the term commenced) now moved that the same order be confirmed; whereupon

Mr. FISHER took these preliminary objections to the motion, viz., that the Judge's order was mot verified by affidavit, nor was there an affidavit that the plaintiff had been served with a copy of the said order.

Mr. FOSTER, in answer to these objections, proposed to read an affidavit, which no doubt would have cured to objection made to-day, but the reception of which was objected to by Mr. FISHER, as it was not in existence on the first day of this term, when the motion ought to have been made. Stephen's Prac. 179. The original order was produced during the argument, by the Prothonotary, and

His Honor the CHIEF JUSTICE, in giving judgment on this point, intimated that it was undoubtedly the practice of this Court, during the hearing of an argument, to receive an affidavit --- made even during the argument --- as to the mere service of an order, and the Court saw no reason to depart from that practice now. And as to the "order," an order was produced in the matter, bearing the signature of the Judge who made it; and that the Court was bound to recognise, and, therefore, the preliminary objections were held untenable.

Mr. FISHER: Then, as the Court had decided that the order was properly before the Court, he took another objection, viz., that upon the face of the order it did not appear that this order had proceeded from the extraordinary jurisdiction of the Judge, which had been invoked under a particular Act of Council; nor did it appear the Statutory conditions had been complied with. This also led to some discussion, when the Court decided that this was rather a substantial answer to the motion than a technical one.

Mr. FOSTER then proceeded on the merits; but as the case was ultimately decided upon the last objection, they were not fully gone into.

Mr. FISHER contended, that as a Judge in Chambers had been, during vacation, called upon to exercise an extraordinary jurisdiction, in staying the proceedings in this cause, conferred upon him by a particular Act of Council; and no doubt that jurisdiction could only be exercised under particular circumstances; that which was the fruit of the exercise must stand or fall by the particular Act in question. Now the Court was called upon to confirm an order, made by a Judge, by virtue of that Act; but the said order did not contain any reference to the Act, under which it was made; nor moreover did it embody facts from which the Court might even now draw an inference, that it was such a case of emergency for the immediate interference of a Judge, which was absolutely necessary, before a Judge could so interfere. There was therefore nothing before the Court to confirm. Christie v. Unwin, 11 A. and E.; and the cases of Goold v. M'Swyny, and Boyd v. Walker, the latter decisions of this Court were referred to.

The CHIEF JUSTICE said, that in all cases it had been so decided, that before this particular interference of a Judge could be exercised, a foundation for that interference must be laid; and that foundation consisted in having it clearly set out in the summons that it was a case of emergency; and without that fact, a Judge had no jurisdiction; and that he was inclined to think that the order itself made upon the hearing of that summons, ought to bear upon its face sufficient to show that the Judge, who made it, had jurisdiction. At all events in this case, where there was no affidavit setting out the facts of the emergency which influenced the Judge--- before the Court-and with only a judge's order before it, which also did not state that the case was originally one of emergency, the Court had nothing before it to confirm.

The rest of the Court concurred.

The motion was dismissed without costs.

Published by the Division of Law, Macquarie University