Forbes C.J., Dowling and Burton JJ, 21 February 1835

Source: Dowling, Select Cases, Vol. 4, Archives Office of New South Wales, 2/3463

[p.24]

[1835

Saturday

21st February]

[Where a party voluntarily appears to shew cause upon a notice of an application for a criminal information which the Court refuses without calling on the other side, the Court has no authority to order the costs of the unsuccessful application to be paid to the other side.]

Exparte Kenny In re Gibson & others

This was an application by S. Stephen for a criminal information against Magistrates for supposed malversation in their office.  Notice of the application had been served agreeably to the practice of the Court.

The Court on hearing the motion were satisfied that there was no grounds laid for an information and refused the rule, without calling on the other side.

Plunketts S.G., who appeared for the Magistrates, and had been instructed to shew cause in the first instance on affidavits, now applied for the costs to which his clients had been put in preparing to meet a frivolous application.

Forbes CJ:  You were not bound to appear until the Court had granted a rule to shew cause.  You have appeared voluntarily, & we have no authority to grant you costs. [p.25]  It is true you had notice of the application, but that was to give you an opportunity for your clients to hear what could be alleged against them.  On what could we order costs?  No rule is granted, & nothing would appear on our records on which the order for costs could be founded.  A refund rule, is not a rule granted.  The Supreme Court, being by its present constitution in the nature of a Grand Jury, we were bound to hear the motion.  We have ignored the Bill, & in point of legal intendment you have not been damnified by the proceeding.  There is no precedent for such a proceeding & the authorities are against you.

The other Judges concurred.