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

Solomon v. Hayes and Forbes v. Elvin [1847] NSWSupC 53

costs, Court of Requests

Supreme Court of New South Wales

Dickinson J., 11 September1847

Source: Sydney Morning Herald, 13 September 1847, in Supreme Court Collection, Vol. 1, pp 12-13






In the first of these cases the defendant applied to set aside the plaintiff's proceedings with costs, for irregularity, or failing that, to deprive the plaintiff of costs under the Court of Requests Act, (6th Vic., No. 15, sec. 11), or the Small Debts Act (10th Vic., No. 10, sec. 12.)

The facts of the case were these. The action was brought to recover £7 12s. 6d. for goods sold and delivered within three years from the commencement of the action. The defendant's usual place of abode, from the time of the accruing of the cause of action until the present time, was in Sydney, within the district of the Sydney Court of Requests. The cause was tried a few days ago before a Commissioner of the Court and two Assessors, under a writ of trial, granted in pursuance of the Acts of Council 4 Vic., No. 22, sec. 26, and 5th Vic., No. 9, section 20, when a verdict was obtained by the plaintiff for the sum above mentioned. The irregularity complained of was, that the notice of trial (which was correct in all other respects) was addressed to "Mr. Turner, attorney for the defendant," instead of to "Mr. John Ryan Brenan," who was the defendant's attorney, and upon whom the notice was served. Mr. Brenan, however, attended before the Commissioner, and obtained a postponement of the trial for an hour or two, to enable him to conduct a case at the Police Office, coming on at the same hour, and that on his return, he for the first time objected to the form of the notice. It further appeared that Mr. Brenan's clerk attended before the Prothonotary to tax the plaintiff's costs on the verdict, and made no objection as to any irregularity in the notice of trial, but insisted that as the plaintiff had no certificate to entitle him to costs none could be allowed. The postea returned by the Commissioner stated that both the plaintiff and the defendant appeared on the trial by their respective attorneys. No certificate to entitle the plaintiff to costs had been obtained from the Commissioner before whom the cause was tried, under either of the Acts referred to.

Mr. DRISCOLL, on behalf of Mr. Brenan, appeared in support of the application, and contended that the irregularity was fatal, and that the proceedings must therefore be set aside; he further contended that if he failed in that part of the application, the plaintiff must be wholly deprived of costs, either under the Court of Requests Act, or the Small Debts Act. The defendant being amenable to the jurisdiction of the Court of Requests, it was clear he might and ought to have been sued there; and the plaintiff not having sued in the Supreme Court, and obtained no certificate, that the action could not have been maintained in the Court of Requests, as section 11 of that Act clearly deprived him of costs. If, however, that section did not apply, the plaintiff was clearly restrained from obtaining costs by section 12 of the Small Debts Act, the action being within the jurisdiction of the Petty Sessions for the district of Sydney; and the plaintiff having recovered less than £10, and not having obtained a Judge's certificate in terms of that section to entitle him to costs.

Mr. JOHNSON, who appeared for Mr. Yarnton, the plaintiff's attorney, contended 1st, that there was no irregularity in the notice of trial, as it was served on, and addressed to, the attorney for the defendant, and that the name was mere surplusage, and could not, and in fact had not, misled the other side. That even if it were irregular, the irregularity was waived by Mr. Brenan appearing at the trial and obtaining a postponement, and by the attendance on the appointment to tax costs. With respect to the application to deprive the plaintiff of costs, he argued first, that the Court of Requests Act only deprived a plaintiff of costs in actions which would be brought in pursuance of that Act, and not to actions authorised to be maintained in the Court of Requests by the Small Debts Act. That section 3 of the latter Act, by implication, totally repealed the jurisdiction clause in the former Act, and that no action is now maintainable by virtue of the Court of Requests Act; and the recent decision of the full Court in Walker v. Goodman and another, shows that the clause in the Court of Requests Act, depriving a plaintiff of costs, only applies to actions which can be sued for in pursuance of that Act. He also contended that no deprivation of costs under either Act attached, unless the cause were tried before a Judge of the Supreme Court. The case of Yabsley v. Buckland, pronounced by the full Court, decided that such was the case under the Court of Requests Act; and the reason which governed that decision applied much more strongly to the provision in the Small Debts Act, as that, in addition to having similar words with the Court of Requests Act as to a Judge certifying for costs, enacts, that the Judge trying the case may order a suggestion to be entered on the record to deprive the plaintiff of costs, which could not be exercised by a Commissioner or any other person than a Judge of the Court; he further argued that as the Commissioner had to join with the Assessors in giving a verdict, he was more ion the position of a juryman than a Judge; he contended also, that as the acts relied on by the applicant derived the plaintiff of a right both as to costs and of trying his cause, according to the course of common law, they ought to be continued strictly. He also urged that the Commissioner of the Court of Requests for the county of Cumberland had now no jurisdiction in cases under £10 to proceed otherwise than according to the course of the common law, by a jury, &c., which there were no means of obtaining, and the Petty Sessions of Sydney have declined to act.

Mr. DRISCOLL, in reply, contended that no ground had been shown in answer to the application; and if the arguments of Mr. Johnson were valid, as to the Commissioner having no power to certify, the plaintiff must lose his costs, by reason of having elected to go before a tribunal which had no power to grant a certificate to entitle him to recover them.

The next case, depending partly on the decision in this, it was arranged that it should be proceeded with, and both cases disposed of together.


This was an application to deprive the plaintiff of costs under the Court of Requests Act, the sum recovered being above £10 and under £30, and the cause having been tried under a writ of trial in like manner as the last case, and no certificate having been obtained to entitle the plaintiff to costs.

Mr. ICETON, in support of the application, argued that section 11 of the Court of Requests Act applied, and that the Commissioner stood in the same position as the Under Sheriff at home under writs of trial; and that the Commissioner was a Judge within the meaning of the clause relied on, and had power to certify to entitle the plaintiff to costs; and, therefore, the want of such certificate was an insuperable objection to the plaintiff's recovering any costs. He also argued that the fact of the Commissioner joining in the verdict, in no way affected the question as to his power as Judge to certify, inasmuch as when the Court of Requests Act was passed, the presiding Judge in the Supreme Court was bound in the same way to join with the assessors in giving the verdict, but was, nevertheless, the Judge before whom the trial took place, as much as when the verdict was wholly given by a Jury; and, therefore, that the Commissioner, under a writ of trial, was the Judge upon such trial, and had power to certify.

Mr. JOHNSON, contra, relied upon his argument in the former case as to this point, and further contended that the Under Sheriff in England, sitting under a writ of trial, had no power to certify to deprive a plaintiff of costs, in cases, which if tried before a Judge of the Court, from which the writ issued, such Judge would certify for that purpose; in support of this position he cited Archbold's Practice, vol. 1, p. 296, and the cases there noted of Wardrope v. Richardson, 1 A. and E. 75, Jones v. Bond, 5 Dowl. P.C., 455, and Story v. Hodgson, id. 558.

Mr. ICETON replied, and His Honor delivered judgment to the following effect:- In the former case I will first dispose of the third point, which is virtually to set aside the proceedings for irregularity, I strongly incline to think I have not jurisdiction to make the order asked for; but supposing I have jurisdiction, I think under the circumstances the defendant is not entitled to avail himself of the defect, if it be one, and I am not at all disposed to stay judgment on such an objection; the notice could in no way mislead or prejudice the defendant, and the objection appears to be a mere bit of sharp practice.

As to the second point (that seeking to deprive the plaintiff of costs under the Small Debts Act) I think the plaintiff cannot be deprived of his costs on that ground, because the section relied on contemplates a trial before a Judge, who can certify; and the Commissioner of the Court, I think, is no such Judge, according to Jones v. Bond, 5 Dowl. 455, and Story v. Hodgson, 5 Dowl. 558. Moreover, the certificate must, by section 12, be made by a Judge, who can order a suggestion to be entered on the record, to deprive the plaintiff of his costs, and the Legislature could not have intended to grant such a power by implication to any other person than the existing Judges of the Supreme Court.

With regard to the Court of Requests Act, 6 Vic., No. 15, I am of opinion it is repealed by the 10 Vic., No. 10, section 3, to all intents and purposes, except with regard to the judicial establishments, called Courts of Requests in Cumberland and in Melbourne, in the county of Bourke.

His HONOR, upon these grounds, dismissed both applications, but (as the main points on which the decision went were new ones) without costs. His Honor also stated that he was of opinion that the Commissioner of the Court of Requests, for the county of Cumberland, had no power to proceed in cases under £10, otherwise than according to the course of the common law, by a jury, &c.; but His Honor remarked, he did not know what means existed to obtain the attendance of a jury.

Published by the Division of Law, Macquarie University