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

Simpson v. Doran [1847] NSWSupC 51

Small Debts Act, Court of Requests

Supreme Court of New South Wales

December 1847

Source: Sydney Morning Herald, 7 December 1847, in Supreme Court Collection, Vol. 2, p. 25

SIMPSON v. DORAN.

This was an action of trespass to personal chattels, and had been tried in the Supreme Court, the Jury finding a verdict for the plaintiff, damages £10. The Judge who tried the cause, pursuant to a request made to him, had certified that in his opinion, "the action was not vexatiously brought in the Supreme Court, but was an action proper to be tried therein;" upon this certificate being granted, the plaintiff proceeded to tax his costs, and the Prothonotary allowed them on the usual full scale, amounting to upwards of £60.

The Court was now moved by Mr. BROADHURST, on the part of the defendant, that the Prothonotary should review his taxation; it being contended on his behalf that the late Acts in Council left untouched the Court of Requests jurisdiction, under the 6th Vic., No. 15, so far as it affected the matters in dispute in this cause, the cause of action having accrued in the county of Cumberland, and the defendant living in that county. It was clear, therefore, that this action might have been tried in the Court of Requests for that county; and although certificate had been granted, yet it was not such a one as was contemplated by that statute, viz., the 6th Vic., 16; it being one given under the Small Debts Act. At any rate, it was contended, if this Court should be of opinion that this construction was not right, yet the plaintiff, although having obtained a certificate under the Small Debts Act, was only entitled to the reduced scale of costs allowed by it.

For the plaintiff it was contended by Mr. FOSTER, that the 6th Vic., No. 15, had no manner of bearing on the case, and the action was one, upon the rendering to be put on all the Court of Requests Acts, that could not be brought in a Court of Requests; and though a certificate had been obtained, out of abundant caution, yet it was useless.

The COURT, however, thought that the Prothonotary ought to review his taxation, as he had clearly erred in allowing the items he did; for upon reading the Acts in question it was evident the plaintiff under the circumstances of this case was only entitled to the reduced scale of costs mentioned in schedule "D." of the Small Debts Act, and as the defendant, according to the rules always adopted by the Court, had not obtained all he asked for, each party must pay his costs of the present application.

Published by the Division of Law, Macquarie University