Currie v. Macdonald, (1949) 29 Nfld. & P.E.I.R. 294 (NFCA)

JudgeEmerson, C.J., Dunfield and Winter, JJ.
CourtNewfoundland Court of Appeal
Case DateJanuary 22, 1949
JurisdictionNewfoundland and Labrador
Citations(1949), 29 Nfld. & P.E.I.R. 294 (NFCA)

Currie v. Macdonald (1949), 29 Nfld. & P.E.I.R. 294 (NFCA);

    82 A.P.R. 294

MLB headnote and full text

Currie, O'Dea, McNamara, Winsor, Mitchell and Browne v. Sir Gordon Macdonald, Chairman of the Commission of Government and Commissioners Walsh, James, Neill, Flinn, Pottle and Quinton

(No. 436)

Indexed As: Currie et al. v. Macdonald et al.

Newfoundland Court of Appeal

Emerson, C.J., Dunfield and Winter, JJ.

January 22, 1949.

Summary:

This 1949 case is pertinent to the current constitutional references. The background of the case is as follows. In 1933 the Imperial Government at Newfoundland's request suspended Responsible Government and set up a government consisting of the Governor and a Commission to be both executive and legislature. In 1948 this Government in two referenda to the people of Newfoundland determined that the people of Newfoundland wanted to join the Canadian Confederation. The plaintiffs then brought an action against the Newfoundland Government to restrain it from proceeding with Confederation and to have declared void the steps already taken. Dunfield, J., of the Newfoundland Supreme Court, ordered the plaintiff's statement of claim to be struck out and the action dismissed on the ground that the action was frivolous and vexatious and disclosed at no reasonable cause of action. See paragraphs 43 to 85. The plaintiffs appealed.

The Newfoundland Court of Appeal dismissed the appeal. See paragraphs 1 to 42.

Constitutional Law - Topic 109

General - Convention - Defined - The Newfoundland Court of Appeal discussed the nature of a constitutional convention - See paragraphs 34, 75, 77.

Constitutional Law - Topic 111

General - Constitutional Law defined - The Newfoundland Court of Appeal discussed the meaning and proper use of the term "Constitutional Law" - See paragraphs 14 to 15, 34, 75, 77.

Crown - Topic 205

Colonies - Governor - Rights and duties of - The Newfoundland Court of Appeal discussed the rights and duties of a Colonial Governor under the Crown - See paragraphs 6 to 7 and 66 to 69.

Practice - Topic 206

Persons who can sue and be sued - Individuals - Interference with public rights - The Newfoundland Court of Appeal held that an individual has no right to take action to enforce rights common to all or a very great number of people, unless for any reason peculiar to himself he suffers or is liable to suffer injury greater than or different from that suffered by the rest of the public - See paragraphs 3 to 4 and 29.

Practice - Topic 254

Persons who can sue and be sued - Government - Legislatures - The Newfoundland Court of Appeal held that legislatures are not liable to be sued - See paragraphs 29, 48 to 49 and 67.

Cases Noticed:

London Association of Shipowners & Brokers v. London & India Docks Joint Committee, [1892] 3 Ch. 242, appld. [para. 3].

Musgrave v. Pulido (1879), 5 App. Cas. 102, appld. [paras. 7, 47].

Dyson v. Attorney General, [1911] 1 K.B. 410, appld. [para. 8].

Attorney General for the Duchy of Lancaster v. London and Northwestern Railway, [1893] 3 Ch. 274, dist. [para. 9].

Hill v. Bigge (1841), 3 Moo. P.C.C. 465, consd. [para. 47].

Mostyn v. Fabrigas (1774), 1 Cowp. 161, consd. [para. 47].

Glynn v. Houston (1841), 133 E.R. 775, consd. [para. 47].

R. v. Crewe (Earl of), [1910] 2 K.B. 576; 79 L.J.K.B. 891, consd. [para. 47].

Campbell v. Hall, 1 Cowp. 204, consd. [para. 56].

Phillips v. Eyre, 40 L.J.Q.B. 28, consd. [para. 56].

Cape Breton Case, 5 Moore P.C. 259, consd. [para. 63].

Wyatt v. Gore (1816), Holt, (N.A.) 299, appld. [para. 74].

Hennessey v. Wright (1888), 21 Q.B.D. 509, appld. [para. 74].

Statutes Noticed:

British North America Act, 1867 [para. 45].

Colonial Laws Validity Act, 1865 (Imp.), sect. 4 [para. 5].

National Convention Act, S.Nfld. 1946, c. 16 [paras. 11, 31, 43, 71].

Newfoundland Act, 1933 (Imp.) [paras. 11, 32, 43, 52, 71].

Referendum Act, S.Nfld. 1948, c. 9 [paras. 31, 43, 49, 71].

Rules of Court (Nfld.), Order 24, rule 4 [para. 44].

Statute of Westminster, 1939 (Imp.) [para. 45].

Authors and Works Noticed:

Dicey, The Law of the Constitution [para. 45].

Counsel:

J.G. Higgins, K.C., R.S. Furlong, K.C., R.A. Parsons, K.C., E.J. Phelan, K.C. and T.P. Halley, for the plaintiffs;

The Attorney General, Sir Albert Walsh, K.C., and James Power, for the defendants.

This case was heard at St. John's, Newfoundland, before EMERSON, C.J., DUNFIELD and WINTER, JJ., of the Newfoundland Court of Appeal.

On January 22, 1949, the judgment of the Court of Appeal was delivered and the following opinions were filed:

EMERSON, C.J. - see paragraphs 1 to 17

DUNFIELD, J. - see paragraphs 18 to 27

WINTER, J. - see paragraphs 28 to 42

To continue reading

Request your trial