Skip to Content

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

Bettington v. Munn [1832] NSWSupC 42

assault - trespass, self defence - damages, nominal - costs, legal - Millers Point

Supreme Court of New South Wales

Stephen J., 20 June 1832

Source: Sydney Herald, 21 June 1832[1 ]


Bettington, J. P. v. Munn. - This was an action brought by plaintiff to recover a compensation in damages for an assault committed upon him by defendant.  The Damages were laid at £500.

The defendant pleaded first the general issue, and secondly had given notice of justification, that at the time the alleged trespasses were committed the plaintiff was unlawfully trespassing and making a great noise on land occupied by the defendant and removing the soil, the defendant therefore intended at the time of trial to set off the trespass so committed by plaintiff against the trespasses alleged to have been committed by him.

This assault arose out of the following circumstance; on the 20th of September last, Mr. Bettington while placing a stone on the strand at Jack the Miller's Point, as a guide to his overseer while building a wall, not to trespass on Mr. Munn's premises,[2 ] defendant came up and while plaintiff was in the act of stooping he gave he [?] a push, he then shook his fist in plaintiff's face and threatened  to break his nose, saying he was a man for him any day, the overseer interfered and said he should not ill use the plaintiff, defendant then seized hold of plaintiff by the shoulders and shook him violently, the overseer then interfered and separated them and would have inflicted chastisement upon defendant but for the positive orders to the contrary by the plaintiff.  This was the assault complained of.  Three witnesses were produced on behalf of defendant, who swore that no assault whatever took place, but that defendant merely took the stone which plaintiff had in his hand and claimed it as his property.  The learned Judge left the case to the Jury on the evidence, who after an absence of two hours, found a verdict for plaintiff. - Damages one shilling, each party to pay their own costs.



Forbes C.J., Stephen and Dowling JJ, 19 July 1832

Source: Dowling, Proceedings of the Supreme Court, Vol. 72, Archives Office of New South Wales, 2/3255[3 ]


[p. 84] Trespass for an assault & battery.  Plea Not Guilty, - with notice of special matter, importing neolitur manus imposuit in defence of Defts possession off land on which the assault took place.  The notice was in form of a set off of another assault, & not I the formal language of a special plea.  At the trial before Stephen J the special matter of defence was abandoned, & the plf had a verdict, the Jury finding for the plf "Damages" one shilling each party to pay his own costs!

A question now arose whether the plf was not entitled to his costs of suit, notwithstanding the finding of the jury, there being [p. 85] a special notice justifying the assault & battery.

Foster. contended that the deft having abandoned the special notice, which was really a nullity from its absolute absurdity, as a plea of set off, the case stood as an ordinary case where not guilty is pleaded, in which case the finding of the jury would conclude the question of costs.  The Jury have a control over the costs as well as the damages, & as the finding of the Jury shewed their sense of the case, the Court would not interfere.

Norton.  The defendant must stand or fall by the legal consequences of his having pleaded a special plea, however informal.  By the rules of this court, a mere notice stands in the place of a special plea, & no objection can be taken to its form, so long as it contains such substantial matter as informs the plf of the nature of the case, & the sort of reply he must come prepared with.  This has often been decided in this court & is too late now to be questioned.  The plf here came [p. 86] prepared to meet the special matter of defence of which notice had been given.  The case therefore stands as one where there is a battery on the record, with a special plea, not supported & the plf is entitled to his costs notwithstanding the finding of the Jury, who have no power to deprive the plf of his legal right to costs.

Forbes CJ  Dowling J.  We think the plf is entitled to his costs.  There is no doubt the jury may in certain cases (but this is not one), find so much damages & so much costs.  In this case they had no control over the costs, because the state of the pleadings puts the question of costs out of their control.  There the deft gives, it is true an informal notice of his intention to justify the assault & battery specially whereby he puts the plf to prepare for his replication.  Now defts choosing afterwards to abandon his special defence will not [p. 87] save him here unless from costs if a battery is averred on the record, though the verdict is for less than 40£.  The jury here were not arbitrators, & therefore they had no control over the question of costs, & that part of their verdict which relates to costs must be considered as surplusage. 

Stephen J. differed from the other judges, by confounding a case of assault & battery with a case of slander.  21 Tae. 1. c. 1b. s. b.

Plf to have his costs.


[1 ] See also Australian, 22 June 1832.  On the informal title at Millers Point, see Leighton v. LeightonAustralian, 12 October 1832

[2 ] See also Martin  v. Munn, 1833; Munn v. Bettington, 1832.

[3 ] See also Sydney Herald, 23 July 1832.

Published by the Division of Law, Macquarie University