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Decisions of the Superior Courts of New South Wales, 1788-1899

Thurlow v. Hughes [1828] NSWSupC 102

civil procedure, particulars, reception of English law

Supreme Court of New South Wales

Forbes C.J. and Stephen J., 1 December 1828

Source: Australian, 5 December 1828

RULE FOR FULLER PARTICULARS.

At ten o'clock on Monday morning, Mr. Chief Justice Forbes and Mr. Justice Stephen entered the Court, and assuming their seats respectively, in the absence of Mr. Justice Dowling, this being the first day of term, proceeded to the hearing of such motions as were in readiness.  Amongst these the only motion in any way remarkable, or deserving of particular mention, was one on the part of Thurlow v. Hughes, in which Mr. Williams appeared as Solicitor for the plaintiff, and Mr. D. Poole for the defendant; it being an application to the Court for better particulars of and concerning a debt, alleged to be owing to the plaintiff, who, Mr. Poole contended, had been rendered in a very uncertain and unsatisfactory manner, striving at the same time to strengthen his argument by reference to established practice of such Courts as the Courts of Westminster; the necessity of strictly conforming to whose practice, he contended, was very essential in cases like the one under debate, and begged further to urge, the impossibility of any defendant being able to meet his opponent on fair ground, when the object of contention was kept in uncertainty, and held back till presented to the consideration of the Court at the time of trial.

The application was opposed by Mr. Williams, on the ground that the particulars, as rendered, were sufficiently full in law, and as clear and full as his instructions would enable him to make them; and that, in short, the defendant was entitled to no better particulars.

The Court. - We are of opinion that the application of the learned Counsel for the defendant, in this case, must be assented to.  Particulars of a demand ought to be full and precise; and as such particulars are often filed in lieu of a declaration, evidence at the trial, not sustaining such particulars, would subject the plaintiff to a non-suit.  Let therefore further particulars be delivered forthwith.

Published by the Division of Law, Macquarie University