[certiorari – civil procedure – appeals]

Johnson v. Sinclair

Supreme Court of Van Diemen’s Land

In banco, Pedder C.J. and Montagu J., 26 November 1839

Source: Hobart Town Advertiser, 29 November 1839[1]

             Mr. Sydney Stephen on behalf of Captain Sinclair, the master of the Maria, moved for a writ of certiorari, to bring in the conviction or order pronounced by Messrs. J. Price and R. Gunn against him, on the complaint of a whaler named Johnson, in order that the same might be quashed. This motion was made upon the grounds that the convicting magistrates had decided upon ex-parte evidence, and refused to hear the witnesses proposed to be called for the defence. From the affidavit of Capt. Sinclair, it appeared that he having admitted the statement made by the complainant to be true (intending only to admit certain points of it) the magistrates refused to hear any evidence to rebut or disprove it.

The Chief Justice enquired whether there were not an appeal proved by the Act of Council.

Mr. Stephen replied in the negative. The act stated that the decisions of the Magistrates should be final and conclusive. This however did not take away the certiorari, for by a decision at home that could not be done without words declaratory of the taking away, on which occasion it was the opinion of their Lordships that it was a pity it was ever taken away at all. - Rule granted nisi.

Mr. Stephen then moved that at six days notice of this motion had been given, the rule might be made absolute. No opposition being offered, the rule was made absolute, and the writ issued returnable on Friday.

In banco, Pedder C.J. and Montagu J., 29 November 1839

Source: Tasmanian, 6 December 1839

            The Solicitor General showed cause against the rule of certiorari, obtained on Tuesday against Messrs. Price and R. Gunn. From several affidavits, which were read, it was shown, that Captain Sinclair was provided with witnesses, who were outside the police office door, but, that when asked if he had any, he declined to call them; other particulars connected with this case were stated, when the rule was discharged with costs. - Colonial Times.