Skip to Content

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

Hayes v Ellis (1831) NSW Sel Cas (Dowling) 742; [1831] NSWSupC 8

stay of proceedings - civil procedure

Supreme Court of New South Wales

Dowling J., 22 January 1831

Source: Dowling, Select Cases, Archives Office of N.S.W., 2/3466

[p. 44] [Where counsel in a cause on both sides agreed after a nonsuit that all further proceedings should be stayed and notwithstanding this agreement the Plaintiff commenced a fresh action.  Held that he was not bound by the agreement of his counsel and therefore the court refused to stay proceedings.]

Jan 22nd 1831

Hayes v Ellis

This was an action of Trover for a bill of Exchange tried before Dowling J.  The Plaintiff was nominated on the ground of a variance between the bill described in the declaration and that given in evidence.  After the trial the Counsel on both sides agreed that all further proceedings should be staid, the defendant giving up the bill sought to be recovered, the Plaintiff afterwards refused to be bound by the agreement of his Counsel and a fresh action was brought.

Wardell now moved to set aside the proceedings they having been recommended contrary to good faith and the agreement.

S. Stephen contra contended that the Plaintiff was not bound by the agreement of his Counsel and a [p. 45] fresh action was brought.

The Court was of opinion that the Client was not bound by the undertaking of his Counsel and therefore

Discharged the rule

Published by the Division of Law, Macquarie University