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

Gallagher v. Powis [1834] NSWSupC 65

assault - in forma pauperis - costs, legal, effect of settlement - damages, nominal

Supreme Court of New South Wales

Dowling J., 5 June 1834

Source: Sydney Herald, 9 June 1834[ 1]

Gallagher v. Powis. - This was an action brought to recover a compensation in a damages for assault and battery committed by defendant on plaintiff.  The defendant pleaded the general issue.  Plaintiff sued in forma pauperis.

It appeared that sometime after the pleas were filed, plaintiff and defendant met, and matters were made up between them, with a view of evading the legal costs, and instructions were sent to a lawyer, who had been retained for defendant, not to take any further steps in the case.

Mr. Nahum Simon, a neighbour of defendant's, deposed that on a certain occasion, in April last, the parties were in his house, when, without any apparent provocation, defendant gave plaintiff a violent blow in the mouth, which bled profusely; did not see plaintiff return the blow.

Mr. Justice Dowling, in putting the case to the Assessors, observed it appeared evident that a certain collusion had existed between plaintiff and defendant to evade the costs incurred in the action; if therefore they could arrive at that conclusion, and were satisfied that an assault had been proved to have been committed on plaintiff by defendant, they were bound to give damages, in order that defendant's pocket might be made to satisfy the attorney for his professional labor; perhaps they would be of opinion that, in that case, a shilling damages would meet the justice of the case.

The Assessors returned a verdict for plaintiff, damages one shilling.[ 2]



[ 1] See also Australian, 6 June 1834; Sydney Gazette, 7 June 1834. For the trial notes, see Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3281, vol. 98, p. 39.

In Hewes v. Smith, Australian, 4 July 1834, the Supreme Court declared that parties had power to compromise or settle an action, so long as there was no collusion or fraudulent intention to deprive attorneys of their costs.

[2 ] On 7 June 1834, the defendant's counsel (Mr O'Rielly) moved that the verdict should be set aside, on the ground that the parties had settled it.  The trial judge pointed out that it appeared to have been the intention of the parties to deprive the attorney of his costs, so O'Rielly said he was misinstructed and withdrew his motion.

Published by the Division of Law, Macquarie University