In re Griffiths

Supreme Court of Van Diemen's Land

Pedder C.J. and Montagu J., 2 May 1834

Source: Tasmanian, 9 May 1834

Both judged in Banco

This being the last day of the Term, the Court was crowded with the profession. Mr. Attorney General moved, on behalf of Jonathan Griffiths, for permission to obtain the opinion of the Court, as to a contested case before the Caveat Board,[1] the gist of which was, whether a certain deed, by which Mr. Griffiths claimed a right to a particular property, had, or had not been back[?] dated, with a fraudulent purpose.

The Attorney General stated, that by the practice of the British Courts, parties obtaining the decision of the Court in the manner now proposed, are subject to the penalties of a misdemeanor, if leave of the Court is not previously obtained, the object of the present application was therefore to obtain that leave.

The Chief Justice. -- If I understand you right, Mr. Attorney General, your application invokes questions both of fact and law. First, whether a deed was unto[?] dated -- 2nd, whether it was fraudulent.

The Attorney General assented, adding that the application was agreed to by the other side.

Mr. Gellibrand said he consented to the order for an issue, but not to the terms as he at present understood them.

The Attorney General had no objection to the terms being such asshould [sic] be mutually satisfactory.

The Chief Justice. -- I thought the plan usual was to produce the issues ready prepared, signed by the agents of both parties; and all the Court had to do, would be to [?] to the trial thereof. The further discussion then stood over for that purpose.

~ ~ ~ ~ ~

The application of the Attorney General for [???????] as to a deed was then referred.[?] He produced the terms[?] of the [?] agreed to by both parties.

After the Judge consulted for some time, the Chief Justice expressed his doubt whether the application could be granted, for many reasons, but particularly because it would tend to produce numerous others in similar cases.

Mr. Justice Montagu was decidedly against the application. If the Commissioners of Caveat have not powers sufficient to perform their duties, why not apply to the Legislature, to supply them with what may be necessary. If this application is granted, the result will be that all difficult matters of fact or law, brought before the Commissioners, will be transferred to this Court, which will thus become a mere adjunct to the Commissioners. His Honor was firm in this opinion, particularly because he understood the Attorney General would shortly introduce a legislative measure to supply the want of power now felt.

The Chief Justice was not then perfectly prepared to go at length into the subject, but as far as at present appeared, he was of opinion with his learned colleague. His Honor repeated the circumstances on which the application arose, and after reviewing the whole, and the principles upon which it was made, His Honor agreed with Justice Montagu in refusing the application.

Pedder C.J. and Montagu J., 2 May 1834

Source: Colonial Times, 6 May 1834

            On the opening of the Court, this morning, the Attorney General applied, on behalf of Mr. Griffiths, of Norfolk Plains, for leave to join issue, for the purpose of trying the right to certain land, at Norfolk Plains, which were the subject of a dispute between his client and Mr. John Bonney. He had just received an intimation from the counsel, for Mr. Bonney, that he was perfectly willing to agree to issue being joined. The object of his motion was to have the following issues tried first, whether certain conveyances, purporting to be the transfer of a certain bargain and sale of land, at Norfolk Plains, were or were not executed. Secondly, whether the said writ was fraudulent and void. The learned gentleman said, he was aware that he could not claim the attention of the Court in cases of this kind, without previously asking and obtaining permission.

            Their Honors here conversed together for a few minutes, when the Chief Justice asked the Attorney General, if he would state in what cases it was usual for Judges to grant applications of the sort then before the Court. The Attorney General said, he had no direct authority to adduce, but would draw their Honor’s attention to two or three cases very similar. One of them respected the construction of a will, which was brought before Lord Tenterden, who refused to try it, considering it a feigned issue. His Lordship at the same time made use of some very strong observations respecting the conduct of the attornies employed. There was also a similar case at York, about some horses, which Mr. Justice Park refused to try.

            Their Honors consulted together for some time, when the Chief Justice said, that if these applications were allowed, the Court would be occupied with them nine days out of ten.

            The Attorney General. - The Land Commissioners, your Honor, have not the authority to administer an oath so as to hear evidence in disputes of this kind.

            The Chief Justice. - Why not apply to the Legislature then to furnish them with the necessary authority, which would no doubt be done if shewn to be necessary for the ends of justice.

            The Attorney General. - I am not here, your Honor, as counsel for the commissioners. The simple circumstance upon which his motion was grounded, were that the parties in the case could not agree, and their desire in order to remedy that disagreement was to bring the facts before the Court, that being by far the cheapest, as well as the most convenient way of settling the matter.

            Mr. Justice Montagu said, he entirely concurred in opinion with the Chief Justice. In England, the Commissioners have the power to administer oaths, and that power is of course given them by the Legislature. It would be monstrous if every troublesome case of fact were to be brought before the Court, the Commissioners would thus become mere non-entities. He considered feigned actions not only to be highly improper in themselves, but also to be a high contempt of the Court.

The Chief Justice said, that Attornies were liable to punishment for allowing feigned actions to be brought in cases where they were employed; vast numbers of such actions would no doubt be brought if the Courts were to allow them. He considered that Commissioners, when assembled, although not actually a court of law, were as much like one as it was possible to conceive, and such applications as the one before the Court ought, he considered, to be made before them.

            Rule refused.

Notes

[1] For the Caveat Board see R. Snell, 'The Caveat Board: An Overview of a Key Colonial Tribunal 1835-1859', Tasmanian Historical Research Association Papers and Proceedings, vol. 42, no. 4, 1995, pp. 192-213.