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

Walker v. Goodman [1847] NSWSupC 57

trespass to land, costs, statutory interpretation

Supreme Court of New South Wales

August 1847

Source: Sydney Morning Herald, 19 August 1847, in Supreme Court Collection, Vol. 2, p. 6

This was an action of trespass, quare clausum fregit, tried before me in May last; in which the plaintiff complained of divers trespasses, on his cattle station at Maneroo, by the bringing of sheep thereon; whereby not only was the grass consumed, but the plaintiff's cattle were dispersed, and he was put to great trouble and expense, in collecting them. The defendants pleaded not guilty, and a denial that the plaintiff was possessed of the place in question. The trial lasted the greater part of two days. There was a great deal of evidence, as to the fact of the commission of the trespasses , and as to the plaintiff's possession of the tract or place trespassed on. The main point of contest was, whether that particular place formed part of the plaintiff's licensed run, or station. But there was a question, also, whether the trespasses were authorised by the defendants; they not being owners of the sheep, otherwise than as trustees --- and one defendant, indeed, appearing to have been an agent only. The parties beneficially entitled were minors, of whom the defendant was the father. The evidence failed against him, and he therefore was acquitted. Against the other defendant, the plaintiff obtained a verdict. The extent of damage actually done, and injury in fact sustained, was considerable; but the Jury, from whatever cause, gave a verdict for 40s. only. The consequence is, an application by the defendant, to deprive the plaintiff of costs.

By the Court of Requests Act, 6 Vic. No. 15, Courts of Request had no jurisdiction over cases of trespass to land. But, by the Small Debts Act, 10 Vic. No. 10, s. 3, that jurisdiction is given; except where the title to the freehold shall be in question, or the case shall relate to any annual rent, or other matter in which rights in future may be bound, or the claim shall have arisen more than three years before the issuing of the summons. By the latter Act, no provision whatever is made for depriving a plaintiff of costs, in respect of cases which he might have prosecuted in the Court of Requests. But, by the former, s. 11, he is so deprived, in respect of any cause "for which an action might have been brought, in pursuance of that Act , before any Court of Requests," --- where he shall recover no more than he might have there recovered. The application is, accordingly, that the plaintiff here may be restrained from having judgment, for any costs whatsoever, and that on payment of the damages all further proceedings may be stayed; on the grounds, that the cause of action in this case is one, for which an action might have been brought before a Court of Requests, (that is to say, the Court of Requests for the City of Sydney, in which both the defendants habitually resided, at and long before the time of action brought,) and that the plaintiff has recovered no more than might have been recovered in that court. No leave was in terms asked, to enter a suggestion on the record; but, by arrangement between the parties, a suggestion is about to be entered in case the Court shall think one necessary and shall see fit to allow the same. It was contended on the argument, that the freehold did not come in question, as the plaintiff held only under a Crown license; and it was admitted, that the action was brought after the 10 Vic. No. 10; that the plaintiff's claim was not of three years' date; and that the case did not relate to any annual rent. It was suggested, on the other hand, for the plaintiff, that he had obtained But to this it was replied, that such a certificate will not entitle a plaintiff to costs, as provided for by that Act, in any case where, (as here,) though he might perhaps have sued in a Court of Petty Sessions, he could also have sued in a Court of Requests.

The case was argued by Mr. Michie for the defendant; whop maintained that, although the jurisdiction in question was given by the Small Debts Act , yet the latter was incorporated with the Court of requests Act - both being in pari material , and referring immediately the one to the other --- and so, that both might be read as one enactment. For this, he cited Dwarris on Statutes, p. 699. he contended, therefore, that for the purposes of the provision in s. 11 of the Act, it could reasonably be said that the action might have been brought " in pursuance of the Requests Act;" although the addition of the Small Debts Act, no doubt, was the particular portion of the law that extended the jurisdiction. On the other hand, Mr. Fisher for the plaintiff contended, that, without the entry of a suggestion, he could not (under the Court of Requests Act, at any rate,) be deprived of costs; and that, in a case of this kind, where the plaintiff's right to possession of the land, substantially, was in contest, the Court would not give its sanction to such a proceeding. Moreover, that after notice given for a new trial, as there had been in this case, a suggestion would at all events not be allowed. He cited several cases on these points; to which, however, we need not now particularly refer.

We have considered this very perplexing question; the difficulty of deciding which is enhanced, by the embarrassment arising from two sets of provisions, apparently not intended to have had coexistence, in the two Acts cited. The defendant here, however, relies on the Court of requests Act; and by that, as altered ort affected by the Small Debts Act, he must succeed or fail. To what the parties may be entitled, under the latter Act merely, we are not now to give any opinion. Having heard, however, an argument on the necessity of a suggestion, to deprive a plaintiff of costs in Petty Sessions cases, under that Act, (a concession which we shall certainly not allow to be drawn into a precedent,) we will here repeat what we then said; that we adhere to our decision on that point, in the case of O'Neill v. Clarke , in April last. But, by the Court of Requests Act, as we have shown, a plaintiff is not deprived of costs, unless he could have sued in pursuance of such Act . And we are of opinion that, supposing this case to have been one within the jurisdiction of that Court, (a question now unnecessary to decide,) it was so by virtue exclusively of the Small Debts' Act. The plaintiff, therefore , would have sued in the Court of Requests, (had he been able to sue, and had he sued there, for the cause of action in this case,) not in pursuance of the Requests Act, but of the said Small Debts Act alone; and consequently, --- as there is no provision in the last mentioned Act, extending the provision respecting costs in the former, to the cases newly placed under the Requests' jurisdiction, --- the question of costs in this case, as in others of its class, is left unprovided for. Or, rather, such of them are provided for, as are Petty Sessions cases; and, for such of them as are not within that jurisdiction, there is no provision. It is, simply, one of the instances of the casus omissus . Here, however, as already observed, the defendant does not deal with the case as one within the Petty Sessions' jurisdiction, but as a Court of Requests' case solely; and his application must, consequently, be dismissed. And, as he has sought to deprive the plaintiff of a right, to which the law (independently of local enactments) clearly entitled him, it must be dismissed with costs.

The authority cited from Dwarris by Mr. Michie, appears to us not by any means to support the conclusion, sought to be drawn from it. The same citation is in Bac. Ab. Statute , B; and it will be seen, that the instance given has scarcely any application, to a case of this kind. The passage relied on was the following: "Wherever an old action is given in a new case, all that before appertained to the action is likewise given." The reason of this is obvious; and it is mentioned as an illustration, merely, of the rule, that where anything is given by a statute, all that is necessary to make it effectual, (or that is necessarily incident to it,) is equally given. The case put was an action of waste; in which, by statute, treble damages (though not mentioned) would be recoverable, as given by implication. But here, the case is essentially different. An entirely new action is given to a Court, without anything being said as to costs. And because, in the Act constituting that Court, a particular provocation respecting costs was inserted, with regard to actions over which it then had jurisdiction, we are asked to decide that the action newly added, is subject to the same provision. Before we can so decide, however, we must read the two Acts as if they were, and always had been, from the beginning, literally one; or we must declare, that an action authorised only by the second Act, was actually brought in pursuance of the first. But if, in one section of an Act, certain incidents are attached to particular actions, and in a subsequent section another action is authorised to be brought, and nothing is said respecting the incidents, the more natural conclusion is, that in the latter case those incidents were meant to be withheld.

On most mature consideration, however, of the Small Debts Act, and the particular terms in which its provisions, with respect to the Court of Requests, are framed, we entertain the gravest doubts whether --- (whatever may have been the intent of the framers ---) the provision as to costs, in the Court of Requests Act, is not wholly repealed in all cases. To what circumstances the inadvertency, if it be one, is owing, we have not the means of ascertaining; nor is it for us to enquire. But it certainly does strike us, at present, that instead of the two Acts being (as contended by Mr. Michie) incorporated, the latter act is for the most part a substitution for the former one; and that many of the provisions in the Court of Requests Act, are consequently altogether at an end. By s. 1, of the Small Debts Act, the 6, Vic., No. 15, is wholly repealed; except as to the Court of Requests for Cumberland . All pending actions in which, however, a re to be continued , and heard and determined, under the provisions thereinafter contained. It would seem, from this, that the new Act was intended to be the guide, and not the then existing Act, for actions in the Court of Requests. Then, by the 3 rd section, a jurisdiction is conferred on those Courts --- not an additional , but a comprehensive and complete jurisdiction, over all classes of cases, to the extent of thirty pounds, for debts or damages liquidated or unliquidated. The mode of proceeding, for cases between ten and thirty pounds, is next prescribed. But no mode is provided for cases under ten pounds. The reason for this omission may be found, perhaps, in the next section, which provides simply for all causes of action, for sums not exceeding ten pounds, in the Courts of Petty Sessions. The omission in s. 3, would further seem not to have been accidental, from the enactment in s. 12; which deprives a plaintiff of costs, only, in cases not exceeding ten pounds, and where he might have sued in some Court of Petty Sessions, omitting all reference to actions for any higher amount. We express these opinions, however, not without some degree of doubt; and we shall be glad, on a more fitting occasion, to enter into a reconsideration of this question.

Dickinson J., 10 September 1847


Source: Sydney Morning Herald, 15 September 1847, in Supreme Court Collection, Vol. 2, pp 13-14




Mr. Justice DICKINSON delivered the following judgment in this case:-

This was an action of trespass quare clausum fregit brought in the Supreme Court. The defendants pleaded 1st, the general issue; 2nd, that the plaintiff was not possessed of the close alleged to be trespassed upon by the defendants; 3rd, that that close was not the plaintiff's. At the trial the plaintiff succeeded upon all the issues against the defendant Goodman, with forty shillings damages, and upon the second and third of them against the defendant Polack, who, however, obtained the verdict upon the general issue.

The PROTHONOTARY having taxed the costs, each party has made an application to me to order that learned officer to review his taxation. The two applications were heard together on Wednesday last, and for the purposes of the argument the following admissions were made by the plaintiff:-

1. That the witnesses for the defence, except one Newcombe, were all subpoenaed on behalf of defendant Polack solely and exclusively, and not at all on behalf of defendant Goodman, or in reference to any evidence they could give on his behalf.

2. That they were subpoenaed exclusively in reference to the issue of not guilty.

3. That they were all material and necessary on behalf of Polock upon the issue of not guilty.

That they all attended upon the trial of this cause.

On the part of the defendant Polack it was admitted:-

1. That a verdict was found for the plaintiff against Goodman on the first issue, and for the defendant Polack on the same issue, and for the plaintiff against both defendants on the second and third issues.

2. That the defendants' attorney objected to the plaintiff being allowed any costs without a certificate under the Act of Council 10 Victoria No. 10.

3. That the Prothonotary had refused to allow the court fees paid by the plaintiff.

4. That the Prothonotary had taxed the defendant Polack's costs upon the usual scale, disallowing one-half of the general costs.

5. That the Prothonotary had allowed to the defendant Polack the expenses of witnesses subpoenaed to prove that the close trespassed upon was not called "Benbooka."

The case was argued at great length by Mr. Fisher for the plaintiff, and by Mr. Johnson for the defendant. They examined minutely and discussed with great ability the several clauses of the recent Act, 10 Vic., No. 10, which relates to the costs of suing in the Supreme Court upon causes of action for which a Jury has awarded less than £10 damages.

Mr. Fisher argued that the action was not such as is mentioned in section 12 of the before mentioned Act, and therefore that the plaintiff's costs ought not to be settled according to schedule D, as the Prothonotary had taxed them; but that if he was right in taxing the plaintiff's costs as he had done, that he should then have taxed the defendants' costs according to the same scale. On this point he cited Parsons v. Pitcher, 6 Scott, 298, and Williamson v. Heath, 4 2 B., 402. He moreover urged that the learned Prothonotary should have allowed the plaintiff his Court fees under section 14, as an action of trespass is not an action where there is a sum demanded. He lastly contended that Polack's witnesses were subpoenaed to prove that the close mentioned in the declaration was not named "Benbooka;" but that it was evident from the verdict upon the other issues that the defendant must have succeeded upon the general issue upon some other ground than the failure of the plaintiff to prove the name he had given in the declaration to the close trespassed upon. In support of the last argument Mr. Fisher cited Lardner v. Dick, 2, C. and M. 389, and Crowther v. Elwell, 4 M. and W. 71.

Mr. Johnson, for the defendant Polack, argued that as the freehold was not in dispute at the trial, the action was within the Act; that the cases of Parsons v. Pitcher and Williamson v. Heath did not apply, as a stricter rule of construction must be applied to the exposition of a legislative enactment than that which is admissible in carrying out the spirit of Directions to Taxing Officers, as in the last mentioned English decisions; moreover, that there was a difference between the wording of those directions and that of the Colonial Act 10 Vict., No. 10, sec. 13 --- as in the former the words were "the plaintiff's costs shall be taxed according, &c.;" in the latter the provision is, "the plaintiff shall recover costs according, &c." On this point he further urged, that the Legislature never could have intended that the defendant, who was forced by the plaintiff into the Supreme Court, should be subjected to the same reduction of costs as was imposed by the legislature on the plaintiff in voluntarily resorting to the superior tribunal. He contended also, that the plaintiff was not entitled to Court fees, as such were not mentioned in schedule D, and he objected that there was no evidence before me of the ground on which the jury delivered their verdict for the defendant Polack on the general issue; and that if there were, that was no valid reason for the disallowance of the expenses of his witnesses.

Mr. Fisher, in reply, contended, that the action was not within the Act, as title to land was in question, and that future rights would be bound. He cited Wright v. Winch, 2 B., and Ald. 662.

Mr. Johnson then, in support of the defendant's application, objected that the Prothonotary had allowed the plaintiff for items not specified in schedule D, to which Mr. Fisher answered that sec. 13 did not say that the plaintiff shall only recover the costs mentioned in the schedule, but costs only according to the scale of costs mentioned therein, and that there were some incidents (for instance, a demurrer) of a cause not specified in this schedule.

I have considered the above arguments, and have perused the cases cited, and have examined the provisions of the Act 10 Vict. No.10. As a tort is in its nature the separate act of each person engaged in committing it, I must regard this question as if the plaintiff and the defendant Polack were the only parties to the suit in which Polack has succeeded, on a plea which goes to the whole cause of action; and is, therefore, unless the law in that respect is altered by the Act 10 Vict., No. 10, entitled to judgment on the whole record, and to the general costs of the action, i.e. to his aliquot portion of the full costs, less the costs of the issues for the plaintiff, inclusive of the expense of preparing evidence, and a portion of the briefs and counsels' fee. See 1 Wm. Saund. (Ed. 5) 300 A Column, (2) Spencer v. Hamerton, 4 Ad. And El. 413, Hazlewood v. Back.; 9, M. and W., 1, Griffiths v. Jones, 2 C. M. and R. 333, Statute 3 and 4, Wm. IV., C. 42, Sec. 22, and Act 5 Vict. No. 9, S.26, cited in Sir Alfred Stephen's Practice, p. 243.

The question therefore is, does the Act 10 Victoria, No. 10, affect the law as thus expressed. I am of opinion, 1st, that an action of trespass quare clausum fregit , is such an action as is contemplated by the 12th Section of that Act. By the 4th Section, the Courts of Petty Sessions have jurisdiction over all actions, whether sounding in unliquidated damages or not, with some exceptions in that clause specified. Now in this action the title to the freehold could not have been in dispute, for the denial that the close is not the plaintiff's, is the same that he is not possessed of it. Fleming v. Cooper, 5 Ad. And El. 221, and no title beyond bare possession in the plaintiff is admissible under either of the pleas, Whittington v. Boxall, 5 B, 139. Neither could any right in future be bound by the verdict in this case, as the only facts that could have been ascertained would have been first, that at a certain time the defendant trespassed on a close; second, that at the time of such trespass the defendant was possessed of that close, and a verdict and judgment only operate as an estoppel when the identical fact decided is a second time in controversy. See judgment in Duchess of Kingston's case, 2 Smith's L. C. Subject to the judge's certificate, the 12th section enacts, that in ALL actions where the plaintiff shall recover no more than £10, he shall have no costs in addition to the sum recovered, and at all events (certificate obtained or not), the plaintiff, when he recovers less than £10, shall lose his costs, upon a suggestion being entered on the record that the cause of action had arisen more than three years before the commencement of the same action, and that there had been no promise in writing to pay the amount, or an acknowledgement in writing of the same being due. In other words, the plaintiff shall be liable, at all events, to lose his costs when he recovers no more than £10 in an action of debt or indebitatus assumpsit for a cause of action more than three years old, unless within this time there has been a written acknowledgement, and in all other cases he shall lose his costs upon recovering less than £10, unless he obtain from the Judge the certificate mentioned in section 12. I am of opinion, therefore, that the 12th section is not confined to such cases of debt of liquidated damages, where there may be a promise to pay or an acknowledgement of the sum due, but that it extends to all actions, and therefore to such an action as this of quare clausum fregit ; that it is apparent, from the record in its present state, that there has been in this action no dispute about the freehold, and that by the verdict delivered, no right in future will be bound. I am moreover of opinion that the reduced scale of fees mentioned in section 13, applies only to the plaintiff's costs, and that the fair construction of the clause is, that the plaintiff shall have only reduced costs, upon his obtaining the Judge's certificate, and that construction clearly excludes the defendant's costs. I think, moreover, that the cases Parsons v. Pitcher, and Williamson v. Heath, have no application to the 13th section, for the reasons urged by Mr. Johnson. I am of opinion, therefore, that Mr. Prothonotary was correct in taxing the defendant's costs upon the usual scale.

I think the plaintiff is not confined to the items specified in schedule D. Had the Legislature intended that he should have been limited to those items, it would naturally have said "recover only the costs mentioned in schedule D," by using the words "according to the scale of costs." The Legislature must have meant that the plaintiff should recover for every necessary proceeding in his action, according to the exact sum in the schedule, when the proceeding is therein specified, and in proportion to those specified, when the particular proceeding is not set down in schedule D. As according to the practice of this Court the plaintiff states his damages , in the writ of summons (see Stephen's Practice, p. 146), and by rule of Court is ordered to endorse on the summons the exact amount he claims (see St. Pr. Pp87, 88, and 147) when the writ is issued for the recovery of a debt , I think the Legislature in framing clause 14, must have intended actions of debt or indebitatus assumpsit, by using the words "actions where the sum demanded shall not exceed £30, &c." I therefore am of opinion that Court fees may be demanded and paid in all actions of trespass quare clausum fregit brought in the Supreme Court.

I am of opinion, however, that the Act 10 Vict. No. 10, section 12, has no application to this case, as the record stands between the plaintiff and the defendant Polack. That section only applies where the plaintiff is to have a judgment for a sum recovered by him. In this case he has recovered by the verdict nothing against the defendant Polack. The plaintiff's costs, therefore, as against Polack, must be taxed as in ordinary cases.

As it appears from the defendant's last admission that Polack's witnesses were subpoenaed merely to prove that Benbooka was not the name of the close mentioned in the declaration, then as the verdict on the pleas denying the close to be the plaintiff's, and that he was possessed thereof, could not have been found for the plaintiff unless he had proved that the close was named Benbooka, I think that the costs of those witnesses ought not to have been allowed to the defendant.--- (Nicholson v. Dyson, 11 M. and W. 545). I am of opinion, therefore, that the Act 10 Vict., No. 10, sec. 12, has no application to the costs of this action as between the plaintiff and defendant Polack, that the costs of each party must be taxed according to the usual scale, and I therefore order that the Prothonotary do review his taxation according to the opinion I have above expressed, and that each party do pay his own costs of, and occasioned by, the respective applications.


Published by the Division of Law, Macquarie University