[succession - Crown debts, fraud]

In re Thomas

Supreme Court of Van Diemen's Land

Pedder C.J. and Montagu J., 29 November 1833

Source: Tasmanian, 6 December 1833[1]

Friday, November 29, 1833

This being the last of term, the Court was unusually crowded with gentlemen of the profession. Mr. Stephen took his seat as Attorney General. After some business of considerable importance had been disposed of, Mr. Gellibrand rose to move the Court, in the matter of the estate of Mr. Jocelyn Thomas, the late Treasurer, which as the public knows was recently sold under extent at the suit of the Crown, and executions of other creditors. Mr. Gellibrand’s motion was for a rule to shew cause by Mr. Crown Solicitor Ross, should not pay back to Mr. O’Ferral the sum of £4000, which the latter gentleman had paid to him on account of Mr. Thomas’s debt to the Crown, and which Mr. Gellibrand stated he had been induced to do, by a suppression by Mr. Ross of the real amount of Mr. Thomas’s debt to the Crown. Mr. Gellibrand read the affidavits of Mr. O’Ferral, Mr. Sutton, and Mr. Young. They all concurred in stating, that Mr. O’Ferral believed Mr. Thomas’s debt to amount to £7500 or thereabout, when he paid the £4000 to Mr. Ross, but for which belief he would not have so done, and yet that within a day after he had parted with his money, it appeared that a further deficiency of £3000 had been discovered by the Committee, then occupied in the investigation of that affair; Mr. Gellibrand likened this case to that of a private individual paying a debt for another, under a misrepresentation, in suppression of the real state of his affairs, which suppressio veri, Mr. Gellibrand contended, enabled him to recover back his money. Mr. Justice Montagu did not quite concur in the analogy. He remarked upon the knowledge by Mr. O’Ferral of the still sitting Committee, occupied in investigating complicated accounts, and asked of Mr. Gellibrand, how he shewed that Mr. Ross knew that there was a further deficiency than that which he then stated to exist. Mr. Gellibrand said, that if Mr. Ross could shew that he really did not know that fact, it would make a great alteration in the case.

The Chief Justice. - But I think Mr. Gellibrand, that this Court would go a great way indeed, if it was to call upon Mr. Ross, or upon any man, for himself to prove the whole extent of his knowledge. It is not sworn that Mr. Ross ever stated, that the investigation was at an end. It is impossible for this Court to shut its eyes to matters of public notoriety; and surely every body knew that the Committee still continued its investigations; will Mr. O’Ferral go further, and swear that he did not know and believe when he paid the £4000 that the investigation was still proceeding? Mr. Gellibrand stated, he admitted the difficulty which existed of proving the fact of Mr. Ross’s positive knowledge of the further deficiency, but there was every possible reasonable ground of suspicion. If however the present motion should be refused, which he did not consider how it could be, an action would certainly be brought in, which he was satisfied he should succeed, proving as he would do, to the satisfaction of any Jury, the manner in which Mr. O’Ferral had been induced to pay his money by a suppression of the real facts of the case. He could not however but believe, that upon the grounds he had stated; borne out as he contended they were by the affidavits he produced, he considered he had made out a quite sufficient prima facie case to justify him in applying for the rule he required, which the Court was bound to grant.

The Chief Justice. - Not bound Mr. Gellibrand. The Court may do so, but it is certainly not bound.

Mr Gellibrand. - I respectfully submit Sir, that it is bound!. The applicant has a right to his action at law, and I submit that if he can shew, as I contend he has done, that he has been unfairly dealt with, the Court is bound to afford him relief in his summary manner.

The two Judges consulted for a short time, and afterwards delivered their opinion seriatim.

The Chief Justice. - This clearly is an application on the common law side of the Court; and it is irregular to make it on the last day of the Term. If we were to grant it, it could not be answered until next Term, a delay which would be productive of considerable inconvenience. But fully considering the whole case, I am individually of opinion that the Rule can not be granted. I do not see any analogy between the case Mr. Gellibrand has assumed and that before us. It appears all the way through, that Mr. O’Ferral knew the Committee was still sitting, and he does not swear that he did not know a further deficiency might not be ascertained. I cannot think of entertaining such an application as this against an officer of the Court, unless upon the very strongest grounds. I cannot understand why Mr. Ross could have committed such an act of swindling as this would have been, without having any concern or interest in the matter in the slightest degree whatever. I think therefore the motion must be refused.

Mr. Justice Montagu. - I entirely concur with the Chief Justice. I think very strong grounds should be laid before such an application as this should be entertained. The strongest evidence adduced is Mr. Sutton’s, (we so understood His Honor, but he spoke so low and there was so much noise in the interior of the Court, that it was impossible to hear with accuracy) and that only goes to extent that £7500 was stated to be due, as appeared by the investigation of the Committee then sitting. What proof is there then before the Court, that he either misrepresented or cancelled? I can find neither the one nor the other. The continued sitting of the Committee, proved clearly that a further deficiency might exist. No application at a Police-office on a charge of fraud could be entertained for a moment upon evidence such as this; and why, therefore, should the Court entertain it against one of its officers. Mr. Gellibrand has spoken of his action at law. His remedy is there open to him; but on the present occasion I entirely concur with the Chief Justice, that the Rule must be refused.

[Owing to the illness of our Reporter, we are indebted to the Austral-Asiatic Review for the above.]

Notes

[1] See also Colonist, 10 December 1833; Colonial Times, 22 and 29 October 1833. Figures on the size of the fraud differ. According to some accounts, Thomas was suspected of misappropriating £7112 6s 1d and in 1834 this was raised to £10,627 10s 5d see H.R. Thomas, 'Jocelyn Henry Connor Thomas (1780-1862)', Australian Dictionary of Biography, vol. 2, p. 517.