Prohibition and Mandamus Act 1901 (NSW)

Act No. 44, 1901.

An Act to consolidate enac tments relat ing to proceedings in Prohibi t ion and on Wr i t s of Mandamus, [7th November, 1901.]

E it enacted by the Kings ' s Most Exce l l en t Majes ty , by and with Assembly of N e w Sou th Wales in Pa r l i amen t assembled, and by the	B t he advice and consent of the Legislat ive Counci l and Legislat ive
au thor i ty of t he same, as follows :—

P A R T I .

Preliminary.

1. This Ac t may be cited as the " Prohib i t ion and M a n d a m u s

Act , 1 9 0 1 , " and is divided in to Pa r t s , as follows :—

P A R T	1.—Preliminary—ss.	1-3 .
P A R T	1 l .—Proh ib i t ion— ss.	4 - 7 .
P A R T	I I I . — M a n d a m u s — s s .	8 -18 .

2. (1) The Ac t ment ioned in t he Schedule to this Act is, to the

ex ten t the re in expressed, he reby repealed.

(2) N o t h i n g here in shall be deemed to affect t he provisions

of the Common L a w Procedure Ac t , 1899. 3.

3. I n this Act, unless the context or subjec t -mat ter otherwise indicates or requires ,—

" Cour t " means t he Supreme Cour t of N e w South Wales .

P A R T	I I .
Prohibition.

4. I t shall n o t be necessary to file a suggest ion on any appli­ cation for a wri t of prohibi t ion, b u t such	appl icat ion may be m a d e on
affidavits only.

5. (1) I f t h e p a r t y app ly ing is directed to declare in prohibi t ion

before wr i t issued, such declarat ion shall be expressed to be on behalf of such pa r ty only, and not on behalf of t he p a r t y and of His Majesty.

(2) Such declarat ion shall contain and set for th in a concise
m a n n e r so m u c h only of t he proceeding in t he Court below as is

necessary to show t h e ground of t h e applicat ion, w i t h o u t a l leging t h e

delivery of a wr i t or any con tempt , and shall conclude by p r a y i n g	t h a t
a wr i t of prohibi t ion m a y	issue.

6.    To such declarat ion t he pa r ty defendant may d e m u r or plead

such m a t t e r s by way of t raverse or otherwise as m a y be proper to show t h a t t he wr i t ough t not to issue, and conclude by p ray ing t h a t such wr i t m a y not issue.

7. (1) J u d g m e n t shall be given t h a t t he wr i t of prohibi t ion do

or do not issue, as jus t ice may requi re .

(2) The pa r ty in whose favour j u d g m e n t is given, w h e t h e r

on nonsui t , verdict , demur re r , or otherwise, shall be ent i t led	to	t he
costs a t t end ing the appl icat ion and subsequen t	proceedings , a n d	have
j u d g m e n t	to recover the	same.

(3) I f a verdict is given for t he pa r ty plaintiff in such

declara t ion t h e j u r y m a y assess damages , for which j u d g m e n t shall

also be given, b u t such assessment shall not be necessary to ent i t le the

plaintiff to costs.

P A R T I I I .

Mandamus.

8. W h e r e a wri t of m a n d a m u s issues out of the Court , every

person by law required to m a k e a r e tu rn to such writ shall m a k e his

r e t u r n to the first wr i t of m a n d a m u s .

9. W h e r e a wr i t of m a n d a m u s issues out of t he Court , and a

r e t u r n is made the reun to , t h e person suing or prosecut ing such wri t may plead to or t raverse all or any the mater ia l facts conta ined wi th in the said re tu rn , to which the person m a k i n g such r e t u r n may reply, t ake issue, or demur , and such fur ther proceedings and in such m a n n e r shall he had there in for the de terminat ion thereof as m i g h t have been had if the person su ing such wri t had b rough t his act ion on

the case for a false r e t u r n .

10. I f any issue is joined on such proceedings, t h e person su ing such wr i t m a y t ry the same in such place as an issue joined in such action on the case m i g h t have been tried.

11. (1) If a verdict is found for the person su ing such writ , or j u d g m e n t given for h im upon a demurre r , or by nil dicit, or for wan t of a replication or other p l ead ing—

(a) he shall recover his damages and costs in such manner as he m i g h t have done in such action on the case ; and

(b) a pe remptory wri t of m a n d a m u s shall be granted wi thou t

delay for h i m as m i g h t have been if such r e t u r n had	been
adjudged insufficient.

(2) If j u d g m e n t is given for the person m a k i n g such

r e t u r n to t h e wri t , he shal l recover his costs of suit .

12. If any damages are recovered by v i r tue of this Ac t against any such person m a k i n g such r e tu rn , he shall not be liable to be sued in any other act ion or suit for the m a k i n g such r e tu rn .

13. The Court may allow the person to w h o m a n y wri t of m a n d a m u s is directed, or the person su ing or prosecut ing the same, such convenient t ime to m a k e a r e tu rn , plead, reply, rejoin, or demur , as to t h e Court seems j u s t and reasonable.

14.    Whereas wri ts of m a n d a m u s are sometimes issued to officers

and other persons c o m m a n d i n g t h e m to admi t to offices or do or perform other ma t t e r s in respect whereof they claim no r igh t or in teres t or the i r functions arc merely ministerial , and it may be proper

become liable :— agains t t he p a y m e n t of damages or costs to which they m a y otherwise t h a t such officers or persons should in cer ta in cases be protected (1) The Court upon appl icat ion for any wr i t of m a n d a m u s may

m a k e rules and orders cal l ing, not only upon the person to w h o m such wri t may be requi red to issue, b u t also upon any other person hav ing or c la iming a n y r ight or interest in or to t he m a t t e r of such wri t to show cause against t he issue of such writ and p a y m e n t of costs of the applicat ion.

(2) U p o n the appearance of such other person, in compliance

wi th any such ru le or order, or in default of appearance after service

thereof, the Cour t may exercise al l such powers and authori t ies , and

m a k e all such rules and orders appl icable to t he case as are given or

ment ioned by or in the In te rp leader Act , 1901 15.

15. The r e t u r n to any such wr i t shall he made , and the issues in Pact or in law upon any t raverse thereof or demur re r shal l be joined by and in t he n a m e of t he person to w h o m the wr i t is directed ; b u t the same may , if t he Cour t so direct , he expressed to be made and joined on the behalf of such other person as is ment ioned in such rule or order.

16. I n t h a t case such other person may frame the r e t u r n and

conduct t he subsequent proceedings a t his own expense, and if any j u d g m e n t is given for or agains t t he pa r ty su ing such wri t , such j u d g m e n t shall be given against or for such other person, who shall have t he l ike remedy for the recovery of costs and enforcing the j u d g m e n t , as the person to w h o m the wr i t is directed would otherwise have had.

17. If t he r e t u r n to any such wri t is, in pur suance of t he

au thor i ty given by this Act , expressed to be made on behalf of any o ther person as aforesaid, t he fu r ther proceedings on such wr i t shall no t aba te or be discont inued by t h e death , or res ignat ion, or removal from office of t he person h a v i n g made such r e t u r n ; b u t t h e same shall be cont inued and carr ied on in t he n a m e of such person, and if a pe rempto ry wr i t is awarded, i t m a y be directed to any successor in office or r i g h t to such person.

18. I n all cases of appl icat ion for any wri t of m a n d a m u s what ­

soever, t h e costs of such applicat ion, w h e t h e r t he wr i t is g ran ted or refused, and also t he costs of t he wri t , if the same is issued and obeyed, shall be in t he discret ion of t h e C o u r t ; and the Cour t m a y order by w h o m and to w h o m the same shall be paid.

S C H E D U L E .

Reference to Act. Tide. Extent of repeal.

5 Will . IV No . 8 An Act for adopt ing and apply ing certain Ac t s of Par l iament passed in the eleventh The whole, in so far as

i t applies to the Acts

year of t he reign of H i s late Majes ty , and	1 Wil l . I V c. 21 , and
first year of the reign of Hi s present	1 & 2 Will . I V c. 58.
Majesty, and in the first and second years of t h e reign of H i s present Majes ty res­ pectively in the adminis t ra t ion of jus t ice in New South W a l e s i n l ike m a n n e r as o ther laws of England are applied there in .

Act