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

In re Bunn (1832) NSW Sel Cas (Dowling) 666; [1832] NSWSupC 13

contempt of court - assessors, non attendance by - jurors, non attendance by - trial by jury

Supreme Court of New South Wales

Dowling J., March 1832[1 ]

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

 

[p. 156] [The Assessors appointed by the New South Wales act to try Civil issues of fact are liable to be fined in the discretion of the Court, for non attendance, being duly summoned.]

In re George Bunn Esqr

At the sitting of the Court this morning at 10 oclock no assessors were in attendance except Mr Busby   I[2 ] waited full half an hour and then inquired of the Undersheriff (Mr Prout) the names of the gentlemen who were summoned for the day.  He informed me that Mr Bunn and Mr Bettington [p. 157] had been summoned and complained that there was great irregularity in the attendance of gentlemen and that he had repeatedly occasion to send round the Town to procure assessors.  I then requested him to send for the gentleman summoned or endeavour to prevail upon some other Gentleman in the Neighbourhood to take his seat with Mr Busby.  I waited for a quater of an hour longer, and then finding that neither Mr Bunn nor Mr Bettington was in attendance I caused the summoning officer to be sworn, and he proved a personal service of the summons on Capt Brown and upon Mr Bettington by leaving the summons with a servant at his place of abode   I thereupon ordered the Gentlemen to be respectively fined in the sum of 40s/ each.  By this time the under Sheriff had procured the attendance [p. 158] of Dr Ross who being sworn took his seat with Mr Busby, and the business of the day was proceeding when Mr Bunn came into Court I then said to Mr Bunn in a good humoured manner "Capt Bunn you have just arrived in time."  He said in a very peremptory and offensive tone, "For what".  I said to save your fine of 40s/. which shall now be remitted as we have got another Assessor.  He vowed in a manner which betokened some irritation and asked if he was now at liberty to withdraw.  I said he might, and observing that he was a good deal discomposed, I said, It is with very great reluctance Mr Bunn that the Court has been compelled to resort to the disagreeable duty of fining gentlemen for non attendance, but we have so repeatedly lost time in waiting for [p. 159] gentlemen who have been duly summoned, that we must resort to the power vested in the Court by law in order to enforce more regular attendance, now that the Suitors of the Court are by the local ordinance Compellable to pay the Gentlemen who discharge the duty of Assessors.

Mr Bunn in a tone and manner anything but courteous or respectful said he disputed the power of the Court to fine assessors for non attendance.  The Court had power to compel them to be payindeed for their attendance, but it had no power to fine them for non attendance, as there was no provision to that effect in the local act.

Judge Dowling then said "I beg to under cieve [sic] you in that matter Sir.  This is the king's Supreme Court.  It is a necessary incident of a Supreme Court of Record that it should have power to punish for contempts.  By the [p. 160] New South Wales Act 9 Geo 4. C. 83. s.8. civil issues of fact are to be tried by two assessors being Magistrates.  They stand in the place instead of a Jury.  If duly summoned and they neglect to attend it is in the power of the Judges to fine them in their discretion for the contempt.  This power the Court has hitherto forborne to exercise, notwithstanding the general irregularity and impunctuality of the attendance of gentlemen summoned, on the ground that as there was no provision by law to compel payment of fees for their attendance it might be thought hard to resort to such a measure; but now that the suitors of the Court are compellable by the new Jury act 2.W. 4 No 3. s.38. to pay the Assessors for their loss of time in attending the Court [p. 161] I shall feel it to be my duty long as I have the honor of holding the King's commission to exercise the power vested in the Court of compelling the attendance of Gentlemen upon whom the duty of serving as assessors is by law imperatively cast.

Whereupon Mr Bunn unduly turned his back on the Court and said in an offensive and contemptuous tone "Then I shall resign my Commission",[3 ] and left the Court.

I said "That is another matter.  The fine upon Mr Bettington was remitted next day.

 

Notes

[1 ] From its position in the Select Cases, it is likely that this hearing took place in March 1832.  For another case concerning juries at this time, see Levy v. Long, 1832, Dowling, Select Cases, Archives Office of N.S.W., 2/3466, p. 145.

[2 ] As this is a notebook of Dowling J., this refers to him.

[3 ] The assessors were magistrates.

Published by the Division of Law, Macquarie University