JURISDICTION OF WARDENS' COURTS.

Otago Witness, Issue 2426, 12 September 1900, Page 21

JURISDICTION OF WARDENS' COURTS.

WELLS v. CAREW AND ANOTHER. AN IMPORTANT DECISION.

On the loth August a motion for a writ of prohibition was argued before Mr Justice Williams in the< case of- John Wells v. Edgar Hall Carew and George Neill, Mr F. R. Chapman appearing for the plaintiff and Mr W. C. MacGregor for Neill. His Honor on Friday gave judgment as follows: — ■

The contention of the plaintiff here is that the Warden's Court had heard and determined a matter which it had no jurisdiction to determine, and therefore that a writ of prohibition should go. To this the defendant replies that the case of re Spain's, application (2, " Gazette," L.R., 264) decides that a prohibition will in no case go to the Warden's Couit. By section 251 of " The Mining Act, 1898," jurisdiction is given to the Warden's Court to hear and determine all such actions, suits, and other proceedings cognisable by courts of civil and criminal jurisdiction as arise within the district concerning the various matters specified in tho 14 subsections which follow. What ro Spain decided was that the Warden's Court, while exercising jurisdiction in lespect of any of tho matters? specified m section 25<1, was by tho a,ct placed on an equal fooling with the Supreme Ccurt, aad th,at in such a- cage jprg-

hibition would not go. But m re Spain certainly .did not decide thtu if the Wai den's Court assumed jurisdiction m some matter of which the act had not given it seisin, that prohibition would not go. In re Spam was decided on the authority of m re New Par Consols, Limited (1898, i, Q. 8., 609), and the Queen v. the County Court Judge of North Allerton (1838, 2, Q. 8., 630, 1899, A.C., 439). In the first case there wm a statute which gave jurisdiction to a county court to wind up companies, and provided that for the purposes of that jurisdiction it should have all the peweis of the High Couit. In the seco.id case the Bankrivptcy Act gave jurisdiction m bankniptcy to a county court, and provided that a county court, m addition to the ordmpry powers of the court, should have all the rowers and jurisdiction of the High Couit. It was held in each case that in the exercise of the particular jurisdiction so given to the couit .by .statute the court could not be controlled by prohibition or certioran But it was never held thai, if the County Couit, while purporting to exercise the jurisdiction given it by the Companies Act or tho Bankiuptcy Act, heaid and determined a matter outside the particular jurisdiction confenecl o.i it by these statutes it could not be piohibited. Here the Warden's Court is pn inferior court, witfi <he llmli.eci jurisdiction conferred upon iv by section 25i of the statute. For the purpose of exercising this jurisdiction it is placed by the stotute m the position of the Supreme Court But it has no authority to hear and determine piiv matters which arc not specified in section 25 i. If it does it is not exercising the jurisdiction given by statute, and is simply in the position of a court assuming to exercise powers which have never been conferred upon it. It would be odd if a court so acting could not be lestramed. Tho jurisdiction leierred to in section 27i, in exercise of which the Warden's Court is placed in the same position as the Sxipreine Court, is the jiirisdiction in respect of the matters specified in section 254. To hold otherwise \vould'lss to hold that the Waiden's Court could entertain all matleis civil and criminal, of whatever kind and wherever arising, and that the only way of objecting to the jurisdiction would be by appeal in the mode prescubed m the Mining Act. That was, in subthe defendants' contention, but neither in in re Spam nor the case on which in re Spain ■was decided would justify such a conclusion. 'I he lule in cases of the kind was laid down by the "Exchequer Chamber in Bunbury v. Fuller (9, Ex., Ill), cited by Mr Justice Blackburn in Pease v. Clayton (3, B. and S., 620), and adopted by the Privy Council m the Colonial Bank of Australasia v. Willan (L.R., 5, P. 0., at page 4M), and is as follows- — "It is a general rule that no court of limited jurisdiction can give itself jurisdiction by a wrong decision on a point collateral to the merits ox the case upon which the limit to its jurisdiction depends ; and however its decision may bo final on all particulars making up together that subject matter which, if true, is within its jurisdiction, and however necessary in many cases it may be for it to make such a preliminr.ry inquiry, yet upon this preliminary question, its decision must always be open to inquiry in the superior court." The judgment in Bunbury v. Fuller illustrates thh proposition by supposing the case of a judge with a jurisdiction limited to a particular hundred, and a, matter is brought before him as having arisen within it, but the party charged contends that it arose in another hundred. The judgment v goes on to say: — " This is clerrly a collateral matter independent of the merits ; on its being presented the judge must not immediately forbear to proceed, but must inquire into its tiuth or falsehood, and for the time decide it, and either proceed or not with tho principal subject matter, according as he finds on that point; but this decision must be open to question, and if he has improperly either forborne or proceeded on tho main matter in consequence of an error on this, the Court of Queen's Bench will issue its mandamus or prohibition to correct his mistake." No doubt, as was said by Cockburn, C.J., ia Elston v. Rose (L.R., 4, Q. 8., 4), if there has been a real conflict of testimony upon some fact which goes to the question of jurisdiction, and the judge decides the court above will not interfere, except upon very strong grounds; but when the judge has given himself jurisdiction by coming to an erroneous decision upon a point of law upon facts which are admitted or are not in dispute, the case is different, and the judge is, in fact, without jurisdiction, and will be prohibited. In the present case' there is no dispute as to the facts, so that if the legal conclusion fioin the facts is that tho subject matter of the action is not within the jurisdiction 1 conferred upon the warden by section 254, the plaintiff is entitled to a prohibition, unless he has lost that right by waiver or acquiescence. The plaintiff took two. objections to the jurisdiction in the court below. First, that the cause of action was not included among the matters set out in the 14 subsections of section 254, over which the warden is givan jurisdiction ; and secondly, that if it was the action did not arise within the district of the Warden's Court. The first objection was certainly not taken too late. The plaintiff, it is true, had filed a counter-claim, . which he afterwards withdrew, but he took the objection at once when the case canie on for hearing. Furthermore, I do not think the objection was one that could bo waived by - acquiescence. As was said by Earle, J., in Jones' v. James (19, L.J., Q.8.D., 257), cited by Cave, J., in Moore v. Gamgee (25, Q.8.D., 244) : '' Where an inferior court has no jurisdiction from the beginning, a party by taking a step in a cause before it does not waive his right to object to the want of jurisdiction. But jurisdiction is sometimes contingent ; in such a case if the defendant does not, by objecting at the proper time, exercise his right of destroying the jurisdiction, he cannot do so afterwards." If the subject matter of the action did not come within any of the 14 subsections of section 254, then the Warden's Court would have no jurisdiction from the beginning. The other objection seems to me really to come within the same category — at any rate, if the facts which manifest the existence of the objection are brought before the notice of the court before judgment is recorded. There is no question, as in Jones v. James and Moore v. Gamgee, of the jurisdiction being contingent. If the action arises within the district the Warden's Court has jurisdiction, otherwise it has not. There is no possibility of its having jurisdiction if the action arises elsewhere. In Briscoe v. Stephens (2 Bing, 213), a plaintiff had sued in an inferior court for goods sold, and had judgment ( against him on the merits. He then brought a fresh action in the Court of Common Pleas, and the defendants pleaded the judgment of the inferior court. The plaintiff replied that at the time he took proceedings in the inferior court, both himself and the defendant Resided out of the jurisdiction, and that the cause of action arose out of the jurisdiction. It was held that the replication was good, although the plaintiff had himself invoked the jurisdiction of the inferior court, and that if the statements m the replication were true, the proceedings in the inferior court were coram non jndice, and void to all intents and purposes. If a man bring an action in a/n inferior court, where the cause of action did not arise within its jurisdiction, and the person or goods of the defendant are taken in execution under its process, the plaintiff in the action is considered a -trespasser (Williams' Saunders, 74 d note; R. v. Danser, 6 T.R., 245). The cases, therefore, show that at all events ba&aua judgment is recorded there can. be no.

waiver or acqiiiescence where tliere is a defect of jurisdiction over the cause, and that even after sentence there is no waiver or acquiesence except that i£ the' r)aity has allowed the iuferioi couri to proceed to judgment without setting up the objection to the jurisdiction, the , court above it will not interfere by prohibition ot the instance of the party unless the defect of jurisdiction -s apparent upon the pioceedings ! (see Mayor of London v. Cox, L.R., 2 H.L., pp. \ 282, 233). The lule as to actions in Life^or ' couits is thus laid down in Williams' Saundei&, 74, a note 1: 'In actions m inferior toucts it is necessary thpt eveiy part of that which is the gist and substance of the action i should appear to be within their jurisdiction, I theiefoio ths consideration of the pioinise must be laid m the declaration withm the jurisdic- , tion." Tho numerous cases cited m this note fully bear out this proposition. Of course, it follows that the gist and substance of the action must be proved to be within ' tho juiisdiction as well as laid in the declaration, and that in an inferior couit, where there ' arc no pleadings, the gist and substance of j the action must bs proved to be withm the juiisdiction of the court before the court can ' hear the case. As was said by Davey, L.J , iii_! Faiquharjon v. Moigan (1801, 1 Q.E., at page ' 55 j): ' rhe first quef-tion which a judge has [ to ask himself when lie is invited to exercise a limited statutory jurisdiction is whether the cauo falls within the defined ambit of tho j statute ; and it is his duty to decline to make ' an order ao judge if, and so for as, the mptler ,' is outside the jurisdiction; and if he does I not do so he may be lestrainecl by prohibition." In tho present case the uncontradicted evidence shows that the contract was made, and the money paid in Dunedm, outside tli£ limit of the district of the Warden's Court, and that the contract was to be perfoinied in Dunedin, the contract being for the pllotment of shares in a -company registered I under the Goint Stock Companies Act in Dunedin. The plaintiff and defendant m the proceedings in the Warden's Court are also described as "of Dunedin," and are not shown to reside within the jurisdiction of the court. The first and essential step in the case was for the plaintiff to show that the cause of action was one which could be tried m a Warden's Coiirt, and that it aiose within the uu-i^diction of that particular Warden's Court. Until thai, appeared the Warden's Court had no right to proceed. From the evidence adduced it appeared thpt the cause of action wai not one which a Warden's Couit had jurisdiction to try. and that it did not arise within the jurisdiction of the particular court. This appeared also on the face of the proceedings using these words in the sense in which they are used m the case of Farquharson v. Morgan 0891, 1 Q 8., 552). There is no lccoid iv the Warden's Court any more than i:i the English County Court, but the ulaiutiff here based his case on a written contract, just as m Faiquharson v. Morgan he based his case on an award. The written coutiact here shows on its face, as the award showed in the ca=c cited, that the cause of action did r>ot arise within the mrisdiction. I think, therefore, that each objection taken in the. court below whs valid, and that there has bpen no acquiesence. Furthermore, even if judgment had been entered the case would have come within ' the decision in Ffrquharson v. Morgan, and as the objection to the -Jurisdiction appears on the face of the proceedings, any suggested scquiesence would be immaterial. I think, therefore, the prohibition should go. j