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Decisions of the Superior Courts of New South Wales, 1788-1899 |
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Published by the Division of Law Macquarie University |
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[tobacco - customs duties - taxation - Crown immunity - costs, legal] Raine and Ramsay v. Balcombe Campbell v. Balcombe James v. Balcombe Raine and Ramsay v. Piper Supreme Court of New South Wales Forbes C.J., 28 September 1827 Source: Sydney Gazette, 1 October 1827
Our Readers may recollect the celebrated actions brought against the Naval Officer, and the Colonial Treasurer, in the years 1825, relative to the duties on imported spirits and tobacco.[1] It will be remembered also, that a special case, on admissions, was submitted to the Court, the result of which was "postea for the defendant." The question of costs in those actions, however, were, at that time, left open, and remained undecided until Friday last, when it was argued, before the CHIEF JUSTICE, by Messrs. W. H. MOORE, and W. WENTWORTH. On the part of the defendants, it was contended, by Mr. MOORE, that the actions brought by Messrs. Campbell, T. H. James, and Raine and Ramsey, against the colonial Treasurer, were mere actions for money had and received, against Mr. Balcombe in his private capacity, and that by Messrs. Raine and Ramsey against the Naval Officer, Captain Piper, as an action of trover, in the same way; that consequently, according to the general rule when the plaintiffs would have recovered costs, had they succeeded, the defendants were entitled to their costs. On the other side, it was contended by Mr. WENTWORTH, that the actions being brought against Public Officers we[r]e to be considered as against the King, who neither pays nor receives costs. The Court would collect from the record of the special case which was submitted to them, the capacity of the defendants, and the capacity in which they were sued; the one as a Naval Officer, the other as Colonial Treasurer; therefore, according to the dictum of Lord Mansfield, that a Government Officer was not liable in his private capac[i]ty, if the plaintiffs had succeeded in this case, a motion in arrest of judgement would have been available; they could have recovered nothing, and would, therefore not have been entitled to costs; from which he argued, that the defendants being, de facto, the representatives of the Crown, could not be entitled to demand that which they were not obliged to pay, upon the recognized principle that the King neither takes nor receives costs. The CHIEF JUSTICE in disposing of the question, observed, that he regretted being under the necessity of deciding on it alone, from the circumstance of Mr. JUSTICE STEPHEN having been engaged as Counsel in some of the causes when at the Bar, and who consequently declined taking any part in the discussion. Very little was to be found in the books upon the subject of costs, beyond the mere general principle that the King neither pays nor receives costs. The only question, as HIS HONOR conceived, for consideration was, whet[h]er the Crown was substantially concerned in those actions. From the special case which was laid before the Court, a full developement [sic] of the whole transaction took place, when it appeared that Mr. Balcombe was Colonial Treasurer, and Captain Piper, Naval Officer, and that the actions were to recover back certain monies, said to be unlawfully paid into the hands of the former Gentleman for duties, and from the latter a quantity of property detained by him in the bonded store. Now, what were these dut[i]es? They were Crown duties. The actions were for money received, and goods detained on the part of the Crown. It was then admitted, on the record, that the Crown was substantially the defendant, and without going into any niceties of distinction, HIS HONOR thought, that upon the broad principle laid down in the books, when the Crown is substantially concerned, that it neither pays nor receives costs, the plaintiffs in these actions could not have recovered costs had they succeeded, and consequently, they were not themselves liable to the defendant.
Notes [1] See James v. Balcombe, 1825; R. v. James, 1825; Raine and Ramsay v. Piper, 1825. See also James v. Halloran, 1827. This decision was also reported by the Monitor, 4 October 1827. |
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