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

Keith v Kentish [1833] NSWSupC 41

costs, legal - taxing of costs - litigants, unrepresent

Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 1 June 1833

Source: Australian, 7 June 1833

Keith v. Kentish. - The defendant in person moved for a new trial in this case on several grounds, none of which, as far as we could comprehend, were supported by argument, excepting one in which he stated that he had been interrupted and intimidated on the trial by the learned Judge who presided.  Mr. Kentish, in the course of a long and desultory speech, attacked the Bench, the Bar, and the Press, complaining that the first naturally possessed an esprit de corps, which was unfavourable to him, when defending himself against an Attorney's Bill, that the second were angry with him for not employing them, and that the Press was venal.  The Chief Justice saw no reason for sending the case before another jury.  His Honor said if Judges possessed an esprit de corps in favour of Attorney's fees, which he could not admit, Jurymen generally felt differently, and this case had been tried by twelve Special Jurors, who certainly could neutralize the feeling on the Bench.  It was the duty of a Judge to confine the pleader to the matters in issue, and to interrupt him as had been done in this case when he travelled from the issue.  In mercy to the defendant, who said he had lost £200 in litigating an original claim of 12l. his Honor thought they ought to refuse him a new trial, but without acting upon that principle, he saw no reason for disturbing the verdict. Judge Dowling concurred, adding that if it appeared there had been any hasty or improper interruption by the learned Judge Burton on the trial, he should have been the first to adjudge a new trial.  Judge Burton read his notes of the trial, and stated that he had over and over again pointed out that the defendant was wandering from the matters at issue.  He had called his attention to the real question, and it was only, when he persisted in a line of argument utterly irregular, that he had interrupted him.  His Honor concluded by observing that if there was one person in the Court at the trial who could say he had been hasty, or had displayed any thing like a desire to intimidate the defendant, he should confess himself unworthy of his seat upon the Bench.

This was one of the many cases in which it became apparent that a man is not always his own best advocate, or capable even of forming a correct judgment of what is passing around him.  For if ever there was a trial in which a judge out of a consideration for a party pleading his own cause, was patient to a fault it was on the trial of this case.  A lawyer would have been silenced in two minutes, if he had said half what Mr. Kentish spoke, and he was listened to for two hours (we may say safely) after the Judge was in duty bound to have stopped him.  In reply to Mr. Kentish's attacks, we must stand up for the Bar and the Press, - and of the former we may undertake to allege, that so far from disliking Mr. Kentish for pleading his own cause, they consider him the Lawyer's best friend, as surely no one who witnessed his exhibitions and learned the result, will ever think of following his example - and as to the press, Mr. K. will probably find when he commences his newspaper, that he may differ in opinion from many of his Subscribers without being chargeable with venality.

Published by the Division of Law, Macquarie University