Barnes (A.G.) Ltd. and St. John's Municipal Council, Re, (1968) 46 Nfld. & P.E.I.R. 276 (NFSC)

JudgeMifflin, J.
CourtSupreme Court of Newfoundland and Labrador (Canada)
Case DateJune 11, 1968
JurisdictionNewfoundland and Labrador
Citations(1968), 46 Nfld. & P.E.I.R. 276 (NFSC)

Barnes Ltd., Re (1968), 46 Nfld. & P.E.I.R. 276 (NFSC);

    135 A.P.R. 276

MLB headnote and full text

Re A.G. Barnes Limited and St. John's Municipal Council

(1968 No. 513)

Indexed As: Barnes (A.G.) Ltd. and St. John's Municipal Council, Re

Newfoundland Supreme Court

Mifflin, J.

June 11, 1968.

Summary:

A company applied by way of summons for an order nisi directing a municipal council to show cause why a writ of mandamus should not issue against it.

The Newfoundland Supreme Court dismissed the application, with leave to reapply, because the application was commenced by summons rather than by motion.

Administrative Law - Topic 3804

Judicial review - Mandamus - Practice - Form of commencement of action - The Newfoundland Supreme Court held that the prerogative writ of mandamus should be sought where there is no other effective, equally convenient or beneficial remedy - The court stated that an action for mandamus is the proper procedure where the mandamus is in the nature of the old equitable mandatory injunction or is granted as ancillary to the enforcement of a legal action and for the purpose of enforcing the private right giving rise to the action - See paragraph 12.

Administrative Law - Topic 3807

Judicial review - Mandamus - Practice - Application - How made - The Newfoundland Supreme Court held that an application for a writ of mandamus is made by motion for an order nisi to show cause why the writ should not issue - The court held that during vacation, the application may be made to a judge in chambers for a summons to show cause - See paragraphs 2, 5 to 7.

Cases Noticed:

Rice v. Melancthon Board of Health (1912), 26 O.L.R. 48, consd. [para. 10].

Statutes Noticed:

Rules of Court (Nfld.), Crown Office Rules, rule 49 [paras. 3, 6].

Administration of Justice (Miscellaneous Provisions) Act, 1938 (Imp.) [paras. 4 to 5].

Rules of Court (Nfld.), Order 61, Rule 4 [para. 2]; Order 69 [paras. 8, 12].

Common Law Procedure Act, 1854 (Imp.) [para. 11].

Authors and Works Noticed:

Halsbury's Laws of England, vol. 10, p. 77 [para. 4].

Halsbury's Laws of England (3rd Ed.), vol. 11, pp. 52 [para. 4]; 110 [para. 13].

Short and Mellor, The Practice of the Crown Rules (2nd Ed.), p. 210 [para. 13].

Counsel:

J.E. McEvoy, Q.C. and J.A. Gibbs, Q.C., for the applicant;

P.J. Lewis, Q.C. and Mr. G. Lang, for the St. John's Municipal Council.

This application was heard before Mifflin, J., of the Newfoundland Supreme Court, whose decision was delivered on June 11, 1968 at St. John's Newfoundland.

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