Skip to Content

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

Ward v. Morning [1847] NSWSupC 58

elections, voting rights

Supreme Court of New South Wales

November 1847

Source: Sydney Morning Herald, 2 November 1847, in Supreme Court Collection, Vol. 2, pp 20-21


This was a qui tam action; the declaration was in debt, and stated that between the 10th day of |March and the 10th day of April, 1847, it was the duty of the defendant, as collector of Gipps Ward, to make out a list of the voters for the members of the Legislative Assembly, and to return the same to the proper authorities, that the plaint between those days was entitled, as being in the occupation of a house within that ward, of the clear annual value of £26, to have his name placed in such a list; but that the defendant unlawfully neglected and refused to place the name of the plaintiff in such a list, whereby and by force of the statute in such cases made and provided, the defendant had forfeited £50, and an action had accrued to the plaintiff, who sues as well for himself, &c., to demand of the defendant the said sum of £50. There were several other counts similar to the above, claiming distinct penalties, for distinct defaults. The defendant pleaded the general issue. The case was tried in August last before His Honor Mr. Justice Therry, the plaintiff contenting himself with merely proving that the defendant was collector, and that he had omitted to place the names of those persons in the Electoral List, some of whom were present at the trial to be persons whose names ought to have been inserted. The prima facie case was not such, by any evidence on behalf of the defendant, as to show that it was not a wilful omission or otherwise; but he merely relied upon the Act of Council, alleging that a mere omission, without being wilful, would not work a forfeiture under the Act. The Jury, under His Honor's direction, found a verdict for the plaintiff on three of the issues, assessing the damages of each at £20.

Mr. DARVALL now moved for a new trial, on the ground that the verdict was both against law and evidence. That the declaration was on its face bad in law --- no Imperial Statute imposing the penalty sought to be recovered, and lastly of misdirection. It was therefore contended, as the declaration had alleged, that by virtue of the statute, &c., and as the word statute had a known signification in law, either signifying an Imperial Stature, Statute Staple, or Statute Merchant, it could not be treated as signifying also a Colonial Act of Council; it was the Colonial Act that gave the penalty, and not an Imperial Statute. To make this declaration good, it must have been alleged by virtue of the Act, &c., imposing this penalty, &c., and therefore now the word statute cannot be rejected as surplusage; and on this ground there ought to be arrest of judgment. Then as to the misdirection of the Judge, the Jury ought to have been told that the plaintiff before he could succeed in this action ought to have made out a clear case of wilful neglect or refusal against the defendant, and which was not made out at the trial. It was contended that this Act ought to receive a very critical construction, as it was penal in its nature. The clause, the 61st, that gives the penalty, does not, in enumerating the several officers, who if they neglect, &c., name the office of "collector," which this defendant was proved to be, and therefore it may fairly be urged that a collector was not a person intended by the legislature to be mulcted for a breach of duty cast upon him, and it would be straining the words "or any other officer, person," to include the collector. Dwarris, 736, 689, and 726. And as to the omission, to do the act in question, it was urged, that the omission to be proved, by the plaintiff must be shown by him to have been a wilful and careless omission, for to read the Act in any other way would be putting a very inequitable and hard construction upon the Act; it would be rendering officers who had to act it liable to all sorts of penalties for omissions that ingenuity of man could not foresee.

The COURT, as to the point made in arrest of judgment, intimated that perhaps to use the word statute instead of Act, was a ground of demurrer, but now after verdict, that objection would not avail the defendant; and that taking the whole statute together, it was clear that a collector came within the meaning and operation of the forfeiture clause, and therefore on these points relieved Mr. Lowe, who appeared in support of the verdict, from addressing the Court on these points.

Mr. LOWE then submitted that all the plaintiff had to do in a case under this Act, was to show simply that an omission had been made, and it was for the defendant to prove that it had not been a wilful omission; this he had done, --- Citing the King v. Burrell, 12 A. and E., 460, and Rex v. Shear, 4 Gale and Davidson, and 3 Q.B. 31.

Mr. DARVALL was heard in reply, and contended that the cases cited were not in point; and cited a decision of this Court in 1843, - The Queen v. Lowe.

The COURT intimated that the verdict ought not to be disturbed; here it was only necessary for a plaintiff suing for a penalty founded under the Act to make out a prima facie case; this being done, it was for the defendant to show, if he could, that the omission was accidental, excusable, or otherwise, and this the defendant had not done.

Mr. Thurlow was the attorney for the plaintiff; and Messrs. Rodd and Dawson for the defendant.

Published by the Division of Law, Macquarie University