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

Macdermott v. Develin [1845] NSWKR xxx

practice and procedure, resident judge, powers of, fieri facias

Supreme Court of New South Wales, Port Phillip

Stephen CJ, 21 April 1845

Source: Port Phillip Patriot, 7 May, 1845

Macdermott v. Develin.--- The Chief Justice delivered judgment in this case as follows:---

This was a motion to set aside a writ of fieri facias, issued by the Resident Judge of Port Phillip, and directed to the Sheriff of New South Wales; or failing that, to restrain the Sheriff from executing it; on the ground, that there was no authority vested in the resident Judge, in any case, or at all events in this case, to issue a writ so directed.

It appeared from the affidavits, that the plaintiff originally obtained judgment in this court, at Sydney; and that he then, under 5 Vict., No. 9, s. 6,[1] caused a memorial of such judgment to be transmitted to Port Phillip---whereby it became equivalent to, and capable of being acted on, as a judgment of the court there. The plaintiff accordingly took out execution thereon at Melbourne; under which the Deputy Sheriff took certain property, as the property of the defendant. A third party claiming that property, the case was brought before the Resident Judger, under the Interpleader Act; and the result of the matter was, not only a release of the property, but an Order, that the plaintiff should pay the costs of the proceedings. That Order, if wrong, might have been appealed from; but we must now deal with it, as a subsisting and valid Order, which the Judge had power to make, and properly made under the circumstances. It is to enforce that Order, (it having been previously made, we presume, a Rule of Court,) that the writ of execution now in question was issued.

It appears, that in fact the plaintiff was never resident at Port Phillip; and it was contended that the Resident Judge had, therefore, no jurisdiction over him---the provision in section 1 of the 5 th Victoria being relied on for this objection. We are of opinion, however, that that section relates only to cases of original jurisdiction; and to persons whop may, compulsorily, be made subject to it. The plaintiff here brought himself within the Port Phillip jurisdiction, for all the purposes of the judgment which he caused to be obtained there. The circumstances of his not having originally commenced the action there, we think makes no difference.

That each branch of the court, notwithstanding the exclusive original jurisdiction which we have referred to, has power to issue writs of execution to enforce its judgments, as well as writs of subpoena to compel the attendance of witnesses, in every part of the colony, is clear from the 4 Vict., No. 22, s. 13,[2] and the 5 Vict., No. 9, s. 9.[3] The former gives the power, in the plainest terms; and the latter (being the section next preceding the power, as to transmitting memorials of judgments,) expressly declares that it shall continue, the same as if that Act had not been passed.

The only question is, therefore, whether that branch of the court, which issues a writ of execution in any such case, should or not direct it (or may not direct it) to the officer who ordinarily executes the process of the court, in the place or district to which it is sent. We are of opinion, that the writ may be so directed; and we strongly incline to think, that it ought to be. However anomalous it may be that the same court should be holden, under the same name, at two distant places, at one and the same time, it is plain from the tenor of both Acts, that there is but one Supreme Court for New South Wales. The Resident Judge at Port Phillip, is a Judge of that court. It is in that capacity, that he is capable of being clothed with the exclusive original jurisdiction referred to. But he has also an auxiliary jurisdiction; which he may exercise in Sydney.

The Judges here, in aid of their exclusive original jurisdiction, may exercise the same auxiliary jurisdiction at Port Phillip. The Sheriff, then, being the officer of this court, seems to us as much under the authority of the Port Phillip Judge, for all purposes within that Judge's jurisdiction, as he is under the authority of the Judges in Sydney, for all purposes within their jurisdiction. It might, perhaps, have been supposed, that the Resident Judge could direct writs of execution, in these cases, to some officers appointed by himself. But, independently of other objections, the Charter directs that all processes shall be executed by the Sheriff; and the Port Phillip Deputy Sheriff, (supposing the proper form of distinction, there , to be to him, and not the Sheriff,) has no jurisdiction beyond that District.

The rule obtained in this case is discharged; and with costs.

[This is a most important matter, and sets at rest the powers vested in certain cases in the Resident Judge.--- ED. P.P.P.]


[1] 5 Vic. No. 9 (1841).

[2] 4 Vic. No. 22 (1840).

[3] 5 Vic. No. 9 (1841).

Published by the Division of Law, Macquarie University