[water, rights to – rates, enforcement of – Court of Requests]

Ex parte Burnett

Supreme Court of Van Diemen's Land

Pedder C.J. and Montagu J., 17 November 1843

Source: Hobart Town Advertiser, 21 November 1843

            Mr. Fleming applied to their Honors for a rule to shew cause why a prohibition should not issue to stay farther proceedings in the Court of Requests, at New Norfolk, under the following circumstances - In the township of New Norfolk there is a water act, to regulate the supply of water to the inhabitants. During Mr. Burnett’s absence in England, Mrs. Burnett occupied a house in the township, which was supplied with water under the regulations of the act, and for which she was rated 7s. 9d. per quarter. Upon Mr. Burnett’s return he considered the rate too high, because the water was not conveyed directly from the reservoir. He therefore refused to pay the rate; and in June last, Mr. Joseph Hall, the town surveyor, filed a plaint in the Court of Requests against Mr. Burnett for 7s 9d.; being a quarter’s “rent” for the water. The case came on for hearing before Mr. Mason, Deputy Commissioner of the Court of Requests, and one of the persons appointed to work out the provisions of the water act at New Norfolk. Mr. Burnett, by his agent Mr. Morgan, objected to the proceeding; - first, that Mr. Hall had no right to sue in his own name; and secondly, even if he had, he could not do so without the express consent of the Attorney General. Mr. Mason, however, decided for the plaintiff, and it was to restrain further proceedings that the present application was made. The learned Counsel said, he would waive another objection, as it was one rather of principle than law; he alluded to the Deputy Commissioner being one of the persons appointed to act, with the Town Surveyor, in the distribution of the water and the imposition of the rate under the Water Act; but, on the other grounds he stated, he considered that he was entitled at least to a rule nisi. The learned counsel then referred to the New Norfolk Water Act, and to the new Court of Requests Act, quoting several clauses in support of his motion. Rule granted.

Pedder C.J. and Montagu J., 28 November 1843

Source: Hobart Town Advertiser, 1 December 1843

            The Solicitor General shewed cause against a rule nisi, recently granted on the application of Mr. Fleming, to restrain proceedings in a case before the Court of Requests at New Norfolk, arising out of an application to Mr. Burnett for 7s. 6d., one quarter’s rent for water. This payment was refused, on the ground of overcharge; and an action to recover, under the Water Act; was brought by Mr. Joseph Hall, Town Surveyor. It was argued, when the rule was granted, that the Surveyor could not sue in his own name; and that, even if he could, he must have the consent of the Attorney General. The Solicitor-General now submitted to the prohibition, leaving the question of costs. This was not acceded to, and the Court took time to consider.