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

Campbell v. Burdekin [1848] NSWSupC 11

equity procedure - reception of English law - res judicata - lis pendens

Supreme Court of New South Wales

Manning J., 20, 28 March 1848

Source: Sydney Morning Herald, 30 March 1848, in Supreme Court Collection, Vol. 2, p. 56 [1]

BEFORE his Honor the PRIMARY JUDGE, in Equity.




On Monday, the 20th instant, the SOLICITOR-GENERAL and Mr. BROADHURST moved, upon affidavits, to have an appearance taken off the file, which had been entered for the defendant, Ann Burdekin, under an order of the Primary Judge.

The order was made upon the ex parte application of the plaintiff, and upon reading the affidavit of the service of a subpoena to appear and answer the emended bill which had been filed herein by leave of the Court, (after judgment for the defendant on demurrer to the original bill), and the certificate of the Master in Equity that no appearance had been entered by the defendant.

The following grounds for the motion were urged:---

I. That the subpoena was served on the defendant's solicitors and not on the defendant personally; that such service was not sufficient; and that, therefore, the defendant was not bound to appear, nor liable on default to have an appearance entered for her.

II. That a rule of this Court (standing rule in Equity, No. 9) having provided for the trial of a suit ex parte, when the defendant does not appear and answer the bill, the Primary Judge had no power to order the entry of an appearance in pursuance of the English practice, under the 8 th of the Chancery Orders of August, 1841, notwithstanding the general adoption of these orders by this Court.

III. That the subpoena was invalid, by reason:---

First. That it was not entitled, "In the Supreme Court in Equity."

Secondly. That the memorandum at the front of it, warning the defendant of the consequences of not appearing, was not in the prescribed form, and was erroneous.

Thirdly. That the name and address of the plaintiff's solicitor was written on the front of the subpoena, instead of being "endorsed" as required by the order of Court.

Fourthly. That the praecipe for the subpoena was irregular in certain particulars.

IV. That the amended attested copy of the Bill served on the defendants, purported to be signed by two gentlemen of the bar, of whom one had left the colony before leave to amend the Bill was given, and could not therefore have signed the amended bill.

V. That the Primary Judge's order purported to be drawn up on reading, inter alia, the Master's certificate of the defendant's not having appeared, whereas the certificate bore date a day later than the order.

VI. That the affidavits in support of the application for leave to enter an appearance, were not served upon the defendant.

VII. That whereas the bill prayed for a subpoena under the seal of the Court, the writ was issued under the seal of the Master in Equity.

Mr. DONNELLY and Mr. FISHER opposed the motion, and in reference to the fifth point, produced an affidavit that the Master's certificate was obtained before the order was passed. The learned counsel insisted that all the points were untenable, and that the regularity of the subpoena and praecipe, and the correctness of the attested copy of the bill, could not be questioned upon this motion, or at this stage of the suit.

His HONOR decided against the defendant on all the points except the first, upon which he reserved his judgment.


Before the Primary Judge, March 28th.

His HONOR gave judgment for the plaintiff upon a point reserved; deciding that service of a subpoena to appear and answer an amended bill was sufficient if made upon the defendant's solicitors in the suit, and that personal service on the defendant was unnecessary.

The application made for the defendant on the 21st instant was therefore dismissed.

Stephen C.J., Dickinson and Therry JJ, 17 April 1848

Source: Sydney Morning Herald, 18 April 1848, in Supreme Court Collection, Vol. 2, p. 66


BEFORE the three Judges, sitting in their appellate jurisdiction.


This was an appeal from the decision of the Primary Judge in Equity, to the full Court, in its appellate jurisdiction. The following are the facts of the case:--- His Honor the Primary Judge in Equity had made an order, upon the exparte application of the plaintiff, upon reading an affidavit of service of a subpoena to appear and answer the amended bill herein, and upon the certificate of the Master to enter an appearance for one of the defendants, (Ann Burdekin.) On the 20th of March last, His Honor the Primary Judge was applied to for an order to take that appearance off the file; at the hearing of the motion several objections were raised--- (all of which were duly reported in this journal at the time)--- but His Honor refused to accede to the application, and it was dismissed with costs. Out of this, His Honor's decision, the present petition of appeal arose. Before, however, the grounds of appeal were opened, Messrs. Donnelly and Fisher, for the plaintiffs, took the following objections to the petition of appeal; first, that this being an appeal to an order of His Honor the Primary Judge, it ought now to come before the Court by way of motion, "by a note or memorandum, &c.," and not by way of petition; secondly, that if it ought to have been by petition, then it does not specially set forth the grounds and reasons of and for such appeal; and if it ought to be by way of "note or memorandum," then it also ought to set forth the grounds, &c., (vide Prac. 309, 310); and thirdly, that the plaintiff had only three days' notice of "appointment" instead of four days.

Mr. BROADHURST was heard contra: he contended that the objections were too late, the Court having received the petition, and made an order thereon; if any objections could have been raised to it, they ought to have been out forward by way of separate motion. Again, it was said, the language of the rules in pages 309 and 310, was only directory, and the 11 Vic., 22, had altered the practice in this respect; at any rate, if by petition is not the correct way of appealing in this case, yet it in itself amounts to a "note or memorandum," &c., and sets forth the special reasons, &c.

The Court, after considering some time, decided that this appeal ought to be made, not by petition, (as they must hold the document before the Court was), but by way of "note or memorandum;" but that note or memorandum need not state specially the grounds and reasons for the appeal, and that the statute referred to did not alter the practice. The Court further decided, that the main objection to the petition, it being a mere irregularity, was now too late; it might, even to-day, have been made, as in former cases, a ground of objection by a separate motion; but now the petition had been read, and the Court was in full possession of the appeal. His Honor the PRIMARY JUDGE concurred with the rest of the Court, but yielded (as he said) with a little hesitation, as to that part of the decision which said that the "note or memorandum" need not set forth the grounds of appeal, as he thought the reason of the rule applied equally to the note or memorandum as to the petition.

The SOLICITOR-GENERAL, Mr. BROADHURST, and Mr. LOWE, then proceeded with the appeal. By them it was stated that there was one ground taken, that must be held fatal, and it was this: Rule 9, Prac. 285, prescribed a course for the plaintiff in this suit to have adopted; he might by following out the directions of that rule, have proceeded and obtained an exparte decree against the defendant, who did not enter an appearance to the suit, instead of coming to the Primary Judge under the 8th and 14th Rules of the 26th of August, 1841, (English rules) to obtain from that Judge an order authorising him to enter an appearance for the defendant. These two rules, it was contended, were not at all in force in this colony; they had never been adopted in this colony by the colonial rule No. 9 of the 2nd June, 1845; because that rule had a saving clause as to all the then existing rules of this Court which would be inconsistent with the then adopted rules: the practice just alluded to, which was open to the plaintiff to have had recourse to, was in existence before that rule of adoption was passed. Those two rules could not be in force in this colony, because the latter in point of number contained matters that could not apply in the colony, viz., the direction as to the form of indorsement on the subpoena, which that rule itself prescribed, was to be in a peculiar form. Again, the said rule 8 could not apply to this colony because it refers to the expiration of eight days, whereas the subpoena in this case refers to sixteen days. Again, those two rules must be read together, as the cases decided on them in England show---therefore the former cannot be acted on in England without the Court is informed that the exigencies of the latter have been also complied with, therefore one cannot be in force without the other, because it would have no subject matter to operate upon. The case of Goold v. M'Sweeney was referred to, to show how strictly this Court will construe its own rules. And as the Court below had acted in accordance with the jurisdiction, that these two rules taken in conjunction were supposed to give, this appeal ought to succeed. The next ground was, that supposing the Court below had such a jurisdiction as it had exercised, it was necessary that before that jurisdiction could be exercised, the Court should be satisfied that the defendant had been personally served with the subpoena to answer and appear; here the facts were, as proved by the affidavit on which the original order was obtained, that the clerk only of the solicitor for the defendant had been served with the instrument; the same affidavit did not state where the service took place, and was altogether in many respects deficient. If the Court should be satisfied that under the circumstances service on the solicitor would be sufficient, yet even this would not be satisfied by proof of service only on his clerk; the name even of the clerk is not given, and it could not be considered that the clerk was the agent of the solicitor. But, it was contended, that the service ought to be made personally on the defendant, for unless she appeared, serious consequences would happen to her. Lastly, it was contended, that the subpoena was not properly entitled in the Court "in Equity," and that the praecipe for the writing did not contain the name in full of the parties to the suit.

Messrs. DONNELLY and FISHER appeared in support of the decision of the Court below; and first, as to the subpoena, whatever doubt may have existed as to the manner in which this instrument had been served, that doubt had been cleared up by an affidavit produced on the other side, which clearly proved that it had been served on the solicitor of the defendant; and as this was an amended bill, the defendant having appeared personally to the original, yet faulty, bill, it was not necessary, pursuant to the practice, to effect a personal service. By the rules of the Court, the solicitors in the cause are to be viewed in the same light as the six clerks in the Court of Chancery in England are. Cases were then referred to, to shew, from which it might be implied, that personal service was not required to an amended bill. In serving a solicitor, it was said, it is not necessary in this colony to state where his offices are; they, under our rules, are always to be ascertained. However, giving these objections the greatest weight that was due to them, they only amounted to an irregularity, and which was committed on the 10 th of March, but no notice of it was taken by the defendant until the 21st of the same month; therefore the objections now came too late from the defendant; the same rule obtaining here as in the common law side of the Court, that irregularities must be objected to at once, or they will be held to be waved. Then as to the jurisdiction of the Court in the matter, it was submitted that the rules 8 and 14 were in force in the colony; so far as they could be; the particular indorsement to be made on the writ of subpoena being somewhat altered, to suit the circumstances of the colony; the plaintiff, therefore, it was contended, had a cumulative remedy---he might have obtained an exparte decree, before the English rules were generally adopted in this colony; that therefore the 8 th and 14 th of those rules were inconsistent with it, and were affected by the saving clause in the adopting rule. Besides, the rules were not in pari material, they were distinct, and the one might be read without the other; in this colony the one, or the one part of the same rule, might be held to apply here, and the other not, as was the case with some English statutes, as the statute of Uses, portions of which had been held to apply, and part not. The two rules have been substantially followed in the practice, as applicable to this case, in the colony. Lastly, it was contended that the initiatory proceeding, such as a subpoena, did not come within the rule referred to, as showing that the subpoena had been improperly headed, that rule only applying to the later proceedings taken in the cause.

The SOLICITOR-GENERAL replied, still contending that the two English rules were not in force in the colony, never having been adopted, and if adopted must have been null and void, and inoperative, because they could not have been made to work.

Court reserved judgment.

Stephen C.J., 31 May 1848

Source: Sydney Morning Herald, 1 June 1848, in Supreme Court Collection, Vol. 2, pp 80-81

His HONOR the CHIEF JUSTICE delivered the judgment of the Court in the above case, as follows:---

This was an appeal from an Order made by Mr. Justice Manning, as Primary Equity Judge, on the 20th March last, sustaining a prior order made by His Honor of the 15th February preceding, under the 8th of the General Rules of the Court of Chancery, of the 26th August, 1841, allowing the plaintiff in this suit to enter an appearance for the defendant. The case was argued during last term, by the Solicitor-General, Mr. Broadhurst, and Mr. Lowe, for the defendant, and by Mr. Donnelly and Mr. Fisher for the plaintiff:---when, as the point appeared to us to involve questions of some difficulty, concerning the operation, respectively, of the English Rules of August, 1841, and the 21st April, 1828, in connexion with those of this Court, we took time to consider our judgment.

The said Rules of 1841 were adopted, by our Rules of 2nd June, 1845; of which the 9th provides, that the several Rules and Orders of the High Court of Chancery, in force in England on the 1st July, 1842, should after the 1st July 1845 be in force in this Court, except in so far as they should be inconsistent with any other Rules of the Court left unrepealed. The Rule of this Court, passed on the 14th January 1841, was at the same time amended; so as to include the same English Rules. By that last mentioned Rule, as it originally stood, the course of practice, and forms, and manner of proceeding, which were in force in England on the 1st day of July 1840, were introduced; except in so far as the same are otherwise provided for by the Standing Rules of this Court, or by certain other Rules not now in question, and therefore not necessary to be here further alluded to.

The 8th General Rule, of the 26th August 1841, under which Order appealed from was made, is as follows. "If the defendant, being duly served with a subpoena to appear to and answer the bill, shall refuse or neglect to appear thereto, the plaintiff shall (after the expiration of eight days from such service,) be at liberty to apply to the Court, for leave to enter an appearance for the defendant." And the first question was, whether the subpoena in this case had been "duly served" on the defendant. The bill had been amended; and the subpoena was, to appear to and answer that amended bill. The defendant's counsel made no objection on that score. They admitted that an order might equally be made, under the said 8th Rule, whether the subpoena were to answer an amended bill, or an original one. It was moreover not disputed, that a subpoena to answer an amended bill may, under the English Rules of April 1828, be served on the defendant's solicitor merely. But a service here, they contended, on the solicitor only,---which was the service relied on,---was bad; inasmuch as, by the 17th of our Equity Rules, it is required to be on the defendant himself.

Now that 17th rule was established in the year 1838; at which period, as we conceive, the English Rules of April 1828, were in force in this Court. By one of those, (No. 20,) the service of a subpoena on the Clerk in Court, in the case of an amended bill, is made good service. But, admitting the Rules of 1828 generally to have been in force, (by the 31st of the Standing Rules of 1834, or otherwise,) at the time of the making of the Equity Rules in 1838, it was contended that still the English Rule No. 20 was abrogated, in effect, and personal service on the defendant made necessary, by the terms of the said 17th Equity Rule. That Rule prescribes, that when the plaintiff obtains leave to amend, if no reingrossment is necessary, he shall give notice to the defendant, to hand over the attested copy of the original bill to him, for amendment; and such copy, when amended, (or, where the amendments are considerable, an attested copy of the new engrossment,) shall, at the time the amendments are filed, "if requiring no new appearance or answer, be served on the defendant's solicitor, if demanded; or, if a new appearance or answer be required, then such amended copy, or attested copy of a new engrossment, shall (if demanded) be duly served on the defendant, together with the subpoena issued for that purpose,"---The distinction is here drawn, said the defendant's counsel, between service on the party, and service on his solicitor; and, where an appearance of answer is required, (as in this case,) the service must be on the former.

The force of that argument depends on the rule of construction, which was adopted in Hyde v. Johnson, 2 B.N.C. 776, and followed by this Court in the case of Elyard, and in that of Rosetta Terry's Examination, in the construction of the 15th and 70th sections, respectively, of the Insolvent Act. But, as we had occasion to observe in the mater of Rostron's Insolvency, in reference to the 86th and 47th sections of the same Act, (cited on the recent application of Bryant, under the 86th section,) the question is after all one of intention, in every case. And that intention is to be collected from the whole of the enactment, or enactments, and their general scope and tenor, as well as from the particular terms used; although the latter must prevail, of course, where they are express,---and the ordinary rule of construction is to be followed, where there is no other guide. Appling the same principles to the Rules of this Court, (without saying that a less strict construction might not be allowed, in determining what was the intention of the Judges in the framing of their rules,) we are of opinion that the 17th Equity Rule does not, in any case of an amended bill, require service of the subpoena on the party. The English Rule, which we are here assuming to be of contemporaneous operation with that Rule, provides that the service may be on the Clerk in Court. The second of the Equity Rules, in reference perhaps to that very Rule, among others, substitutes the solicitor for that officer, "in all matters where, by the English Rules, a Clerk in Court is mentioned." We find nothing specific, in any part of the Equity Rules, as to the mode of service of a subpoena. We do find, however, in some of those Rules (and, as we think, in the 17th Rule itself) that the word plaintiff or defendant is used, indiscriminately, as denoting sometimes the party himself, and at other times his solicitor. By the 7th Rule, the plaintiff is to serve a notice, signed by his solicitor; but it will hardly be contended, that the party himself is to serve that notice. By Rule 9, the plaintiff's solicitor may publish a notice, in a certain event; after which, the plaintiff may, on filing a certain affidavit, set his cause down. In the 12 th Rule, he is required to serve the defendant, personally, with a particular notice. By the 13 th, the defendant's solicitor is to serve on the plaintiff's solicitor, a copy of the answer or plea; which latter, the plaintiff may proceed to set down for hearing. In the 17th, according to the words used, the plaintiff is to give notice to the defendant, to hand over to him the attested copy of the bill. From Rule 6, however, it is clear that such attested copy might (and probably would) be, in the hands of the defendant's solicitor; not those of the defendant himself. Since, moreover, (according to Rule 17,) it is to be handed over by the defendant, why is the amendment to it to be served on his solicitor? Yet so, in terms, the Rule prescribes. If we assume that a subpoena ought to be served personally, for what purpose was it necessary to provide that, in that case, the amendments to the bill should be served with it? They are only to be so served, "if demanded." But the party himself seldom makes any demand:---that is the business of the solicitor, as the 6th Rule pretty obviously implies. But, in fact, as has been seen, where the defendant was clearly meant to be served personally, as distinguished from his solicitor, (as in the 12 th Rule,) the word "personally" is introduced. And then we see that, by the English Rule, a subpoena to answer an amended bill need not be so served; but may be served on the defendant by his solicitor. We conclude, therefore, taking the whole together, that such may be the mode of service under our own Rules; there being nothing distinctly to repudiate that construction.

It is scarcely worthwhile to consider the question, whether the Rules of April 1828 were really in force, at the time of the framing of our Equity Rules. Whether then in force or not, or brought into operation by the republication of the 31st Standing Rule, with the other Rules of the Court, in February 1840, (*see Sup. Court Prac. p. 55. and 56,) or whether they were introduced only by the Rule made on the 14th January, 1841, it is clear that they were in force at the time of the service of the subpoena in this case. But if they came first into operation by the Rule of January 1841, there is perhaps still less ground for the supposition, that so material a provision as that contained on the 20th of them, allowing service on the Clerk in Court in certain cases, was meant to be excluded. If introduced in 1841, they were virtually posterior to the 17th Rule of 1838; and may, therefore, have the effect of controlling it. The 17th Rule was not passed to regulate the mode of serving a subpoena; but that of amending a bill, and serving a copy of the amendments. For serving those on the defendant personally, no good reason could have existed. It may be safely concluded, therefore, that they were never meant to be served in the mode, whatever that might be, in which the subpoena was served. But, by the 20th of the English Rules, when introduced, the subpoena to answer an amended bill became (or it then already was) specifically provided for; that is, by service on the solicitor being made good service.

There were two other points made as to the subpoena; first, that the one issued in this case was not merely to answer, but to appear and answer the amended bill---and secondly, that the service was not on the solicitor, but on some clerk only; not shown to be his clerk, at his (the solicitor's) office. There was another objection, of a more technical kind; that a subpoena is a "proceeding" in the cause; and requires therefore to be intituled. We shall content ourselves by saying, that we think there is nothing in any of those points. They received a sufficient answer at the bar.

The next question is, whether the 8th of the Rules of August 1841, under which the Order appealed from was made, be in force; or can be acted on in any case where, as here, the exact form and precise words have not been followed, which are prescribed by the 14th of those Rules. This last Rule directs, that the memorandum at the foot of a subpoena shall be "in the form following; that is to say---Appearances are to be entered at the Six-Clerks' Office, in Chancery-lane, London; and, if you do not cause your Appearance to be entered, within the time limited, &c." All of this was, in fact, followed in the present case; except that for the words Six-Clerks', and Chancery-=lane, London, were substituted the words Masters', and King-street, Sydney. It was insisted, that the form given was material, and could not be varied; that it was a part of the subpoena, and to be read with it; just as the 14th Rule was to be read with the 8th. The plaintiff's counsel did not dispute, in fact, that the memorandum is taken to be, according to the English practice, a part of the subpoena; so that, unless shown to have been duly served, no Order for the entry of an appearance can there be obtained. But they contended that the variation n adopted here, being a necessary variation, was not a departure from the Rule; which, if the precise words were to be followed, would become of necessity a mere dead letter. On the other hand it was urged, that this showed that the Rule had never been in operation; for that, if intended to have been introduced, the form would have been adapted to our local circumstances, by the only competent authority. And, to shew further the improbability of such an intention, the different form of our subpoena, in allowing a greater number of days than eight, in certain cases, and the fact that a very effectual mode is provided by the 9th Equity Rule, for obtaining a decree without entering any appearance, were commented upon.

We have fully considered the question involved in these objections; and we are of opinion, that the 8th Rule of 21st August 1841 was introduced, with the other Rules of that date, by the General Rule of 2nd June, 1845, and that the subpoena and memorandum served in this case, though not in exact accordance with the letter of the 14th Rule, were sufficient to being the case within the said 8th Rule. The Colonial Rules of 1838 did, no doubt, provide a remedy for a defendant's neglect to appear; and, in that respect, they were in anticipation of the English Rule now in question. But the General Rule of 2nd June 1845 introduces all English Rules, in force in July 1842, except only in so far as they shall be inconsistent with the Colonial Rules. There is nothing inconsistent, however, in two concurrent remedies for the same evil; where, as here, both are of a similar character, and either may be adopted without defeating the other. Neither is there anything inconsistent in the provision, that the plaintiff may apply "after" the expiration of eight days. In so far, however, as it could be implied that the plaintiff, thereupon, (without waiting for the full number of days requited,) may obtain the Order mentioned, there would be an inconsistency with the Rule which allows a longer time; and so far, therefore, by the express terms of the Rule of 1845, the 8th Rule would not be in force. Then, as to the form of memorandum. Is the Court to say that a subpoena has not been duly served, within the meaning of the 8th Rule of 1841, because the memorandum at the foot, instead of following the exact words of the English form, requires the defendant to enter his appearance in King-street, instead of Chancery-lane, London ? It would surely be more reasonable to hold, that as the latter form could not be followed, it would not be in force at all---in any part of it. As to the subpoena itself, its form was prescribed by the Rules of 1833; but "with such alterations and variations as circumstances may require." The memorandum at the foot, so far as the Six-Clerks' Office and Chancery-lane are concerned, is an adjunct to the form so prescribed. What entitles us to suppose, that when repeated in the Rules of 1841, with additional sentences, the same form became unchangeable even as to a word; vitiated, unless insensible; nugatory, if varied at all to preserve the meaning?

But taking the Rules of 2nd June 1845, and 14th January 1841, together, it is plain that no Rule of Form is adopted, which in any part is inconsistent with (or where otherwise provided for by) an unrepealed Colonial Rule. Now, by No. 10 of the Rules of June 1845, the Master in Equity is to perform all the duties, discharged in England by the Six Clerks. By the same Rule, wherever "in any form directed to be used in this Court," in Equity, the words Chief Clerk are used, the words "Master in Equity" are to be substituted. Is there, then, any prescribed form of subpoena in this Court? We can find, certainly, no distinct Rule prescribing one. We find, however, the form used in this case, (with the exception that the Master's Office is substituted in the memorandum, for that of the Chief Clerk,) attached to the Equity Rules, as promulgated by the Judges in the year 1840. Such, accordingly, appears to have been the form in actual use, in the Court, to this day; save that, in compliance with the 14th of the Rules of August 1841, the foot memorandum is in the extended form there given. With that exception, and the substitution of the words "Supreme Court, in Equity," for the words "High Court of Chancery," and the reference to a Decree passing ex parte, instead of the mention of an Attachment, the subpoena is in the form directed by the English Rule. It appears to us, under the circumstances here stated, that the form so used may be taken to have been directed, by the authority of the Judges; but that, if not, yet it is substantially in the form prescribed by the Rule of 1833, with such variations only as circumstances required---and so, allowed by that Rule. But, after all, the question turns on the Rules of August 1841; by the 8th of which, the point on which the Judge had to be satisfied was, whether the defendant had been duly served. The form of the writ, if the substance was preserved, was comparatively unimportant. We think, however, that in form and substance the subpoena was duly served; and the defendant's Appeal, therefore, is dismissed with costs.

We cannot but regret that so much of public time has been wasted, in the renewed discussion of objections utterly beside the justice of the case, whatever the question in dispute may be; and by the decision of which, though at the cost of great labour to the Court, (by reason of the many Rules which it has been necessary to consider,) no material benefit can result to either of the parties, or to other litigants. The Rules of the Court, as has been observed by Lord Plunkett, in perfect accordance with opinions expressed by the Vice Chancellor of England, and by Lord Cottenham, are its creatures; not its masters. (See 6. Sim. 212; 3. Myl. and Cr. 244; and 2. Myl. and Cr. 476.) They are framed, not for purposes of technicality, or mere form; but to afford facilities to parties, in the conduct and defence of cases. They ought not to be taken advantage of, therefore, to defeat or retard their decision; not should parties seek rigorously to enforce them, to the letter, regardless of their substance and spirit, and as the great object for which they were established---that of securing the cheap and prompt, yet safe and effectual administration of justice. In the establishment of any Rules, great difficulties are unavoidable encountered; as every one may observe, who will take the trouble to go through the numerous Rules, which have been promulgated, amended, revoked, re-established, and then amended again, consolidated, or suspended, by successive Chancellors, in England, during the last twenty years. The task of occasionally introducing some of these, when apparently settled by the experience of a few years, or some which learned men have recommended, without wholly remodelling the past established practice, is one of very serious labour and responsibility; and in the attempt, there will be found occasional discordances, and questions of construction, which may render Judicial interposition unavoidable. It is to be hoped, that these evils will not in future be needlessly aggravated, by the persevering litigation of unessential points; the discussion of which, in this case, without advancing the question for trial one single step, has induced nothing but profitless expense and delay.

4 October 1848

Source: Sydney Morning Herald, 6 October 1848, in Supreme Court Collection, Vol. 2, p. 116



His HONOR Mr. Justice Manning delivered judgment as follows, upon the matter discussed on Friday, the 29th ultimo:---

I am of opinion that this plea must be overruled. It is either a plea of res judicata or of lis pendens. As the former, I think it bad, because the decree pronounced in the first suit was not a final adjudication upon the points in issue, and because the plea does not allege that the decree has been signed and enrolled. The absence of signature and enrollment has been distinctly held to prevent the decree from being pleaded as a direct bar; but it was contended that it might nevertheless be pleaded to show that the bill is exhibited "contrary to the usual course of the Court." For this virtual contradiction of the rule, no binding authority was adduced; and it would seem that the proper course, where the decree is not enrolled, is to set it up by the Answer.

As a plea of lis pendens, it is also, in my opinion, not sustainable. First, because it does not expressly aver that the second suit is for the same purpose or subject matter as the original one. This objection is one of substance, and not depending on technical grounds only; for if such an averment had been made, the plaintiff might have had (as a matter of course) the usual reference to the Master to examine and report on the identity of the two suits,---whereas the effect of the plea would be to impose upon the Court the duty of the Master, and to give the Court, as its materials for comparing the suits, such parts only of the first bill as the defendants have set forth, instead of the bill itself, which the Master would have had to examine. Secondly, because upon the face of the plea, there does not appear such a degree of identity in the subject of the two suits as to make the dependency of the first an absolute bar to the second. This point does not depend either upon the statement of facts, as such, nor upon the decree pronounced; but upon the nature of the relief sought or obtainable, or the issue raised; and this is to be collected from the prayer of relief, specific and general, taken in connection with the case made out by the facts stated. I look to the general scope and object of the two bills; and although they are certainly founded upon the same agreement, and are in other respects so far identical as to justify a surmise that the differences are occasioned by a misconception on the first instance of the plaintiff's rights, I think the general scope and object of one so distinct from that of the other, as to be an answer to the plea of lis pendens. By the first bill, the defendant, Burdekin, is sued as a kind of agent for the sale of the goods and the collection of the book debts assigned, in trust for payment of Wilson's debts, and to account for his dealings and for the balance of proceeds; whereas the second treats the arrangement as consisting in the absolute sale and transfer of the stick, book-debts, and good-will of Wilson's trade, in consideration if the liquidation of his debts, and of Burdekin's accounting for and paying over to Wilson two years' profits of the business generally, and without reference to the specific goods which constituted the stock in trade at the time of the assignment. Accordingly, the first bill, as abstracted in the plea, does not charge the making of profits, and prays an account of the moneys and securities received or paid by Burdekin on account of the property and effects transferred by the deed of assignment and of the stock and book debts then remaining in Burdekin's hands, and prays that Burdekin may be decreed to execute a bond for such sum as the said stock, debts, and effects, in regard of the said business, should appear to have produced; and that in the mean time Burdekin should be restrained from farther disposing of the said stock, &c., and from collecting any debts, &c., and from at all interfering or intermeddling therewith. The new bill, on the other hand, charges that the defendant, Burdekin, made large profits by the business; and it prays for an account of the business transacted, and of the gross and nett proceeds and profits thereof, and an account of the money due to the plaintiff in respect of the profits which accrued from the said business; and prays that the defendants may be decreed to perform the agreement, and to pay to the plaintiff all sums of money which may be found to be due under the said agreement. The former bill asserts a claim, entirely without foundation as it would seem, which is so foreign to the rights of the plaintiff, as now to set forth that it would have been impossible to make such a decree as he was really entitled to under the agreement, without a very wide and strained departure from the scope of the bill.

I was asked to order that the plea be allowed to stand as an answer with liberty to except, in the event of its not being upheld as a plea. This I cannot do, as I think the one matter set forth no answer upon the face of it, and as every interrogatory in the bill has yet to be answered. Neither do I think that in over-ruling this plea, there should be a direction for the dismissal of the first suit, on the ground that the second bill is substantially for the same relief in a more correct and complete shape. If such be the fact, or if upon any other ground the first suit ought to be dismissed, the defendant must make application for the purpose in due course and form. At present, I have only to dispose of the plea in bar of the second suit.

Plea over-ruled, with costs.

November 1848

Source: Sydney Morning Herald, 3 November 1848, in Supreme Court Collection, Vol. 2, p. 125

His HONOR delivered judgment herein as follows:---

I have conferred with the Chief Justice and Mr. Justice Dickinson upon the point reserved for consideration, and we agree in thinking that the application to discharge the order for a stay of the proceedings in this case until the decision of the three Judges shall have been obtained upon the appeal now pending, should be dismissed without costs. It certainly was in the power of the appellant to have made the deposit for the costs of appeal immediately after the amount was determined by the Master, and to have set the appeal down for hearing at the sittings in the third week in this Term, and it is undoubtedly the fact that the stay of proceedings was granted by me on the understanding that the appeal would have been immediately set down; but the Respondent not having asked to have it made a term of the order, that appeal should be speeded, as he might have done, and the appellants having used all the diligence that the general rules and this order made encumbent upon them, sufficient ground had not been made for disturbing the order. In point of fact, indeed, the delay of the appellant, in setting down the appeal, has not prejudiced the other party, as from the pressure of prior business the cause would not in any event have come on for hearing at the late appeal sittings.

The undertaking on which the stay of proceedings was granted, although not distinct enough to warrant a discharge of the order by reason of its not having been adhered to by the appellant, has appeared to the Judges a sufficient ground for not requiring the plaintiff to pay the costs of this application.


[1] See also Campbell v. Burdekin, 1847; Campbell v. Burdekin, 1850.

Published by the Division of Law, Macquarie University