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

Dunbar v Thompson (1835) NSW Sel Cas (Dowling) 240; [1835] NSWSupC 71

arbitration, evidence in  - evidence, by parties to action

Supreme Court of New South Wales

Forbes C.J., 19 September 1835

Source: Dowling, Select Cases, Vol. 7, Archives Office of New South Wales, 2/3465[1 ]




19th September]


[Where a suit in Equity was commenced & withdrawn & the parties entered into a submission to refer all matters in dispute to arbitrators, with a condition that all witnesses to be examined should be sworn before a Judge or Commissioner.  Held that the affidavit of a party to the suit made before & certified by the Lord Mayor of London by virtue of the stat. 54 G. 3.C. 15. was competent evidence to be received by the Arbitrators under the rule of reference.]


Dunbar et al assignees of Jas Keys an English Bankrupt v. Thompson


The Bankrupt Keys shipped goods to this Colony per ship Wave to the order of the Deft.  Disputes having arisen between the parties as to the proceeds of the goods & a suit in Equity having been commenced & withdrawn a submission to arbitration was entered to and made a rule of Court, and the matter in question and all other accounts matters and things subsisting and depending between the parties, were referred to two arbitrators.  By the terms of the submission, the witnesses examined were to be sworn, before any one of the Judge or a commissioner of the Supreme Court.  The arbitrators entered upon the reference, & made an award in favour of the Plf.

Last term a motion was made to set aside the award on three grounds; First, that the arbitrators had admitted illegal evidence; Secondly, that they had omitted to arbitrate on all the matters referred; & Thirdly, that one of the arbitrators had acquired [p.67] an interest in the matter in dispute adverse to one of the parties before his award was made.  The first objection was grounded on the fact that the arbitrators had received in evidence affidavits and accounts verified in England in the manner pointed out by the stat. 54 Geo. 3. C. 15, such evidence not being within the terms of the submission.  One of the parties made his objection at the time this evidence was tendered, but it was overruled.  There was however other unobjectionable evidence before the Arbitrators to the effect for which the objectionable evidence was offered, sufficient to warrant the decision of the arbitrators.  One of the matters in dispute, incidental to the principle matter, had evidently from the affidavits appeared to have been under the consideration of the arbitrators, & though there was no express adjudication upon the face of the award one way or the [p.68] other on this matter, yet it was conclusive that it must have been in their contemplation at the time they made their award.  The third objection was, that one of the arbitrators had acquired an interest and in the course of the inquiry became possessed of knowledge which enabled him to enforce payment of a debt of his own against one of the parties; but long before the arbitrator was chosen by the party now making the objection, it was known to him that the arbitrator had such interest.  The Court having heard Counsel on both side, took time to advise upon the case; & now,

Forbes C.J. delivered Judgment: -  We are of opinion that the award must stand.  The first objection to the award is, that the arbitrators received  affidavits and documentary evidence annexed, which had been transmitted to this Colony under the [p.69] seal of the Lord Mayors Court of London in pursuance of the Statute 54 Geo. 3: c.15 and it was contended first that that evidence was illegal & not within the meaning of the act of Parliament and secondly, that it was contrary to the terms of the submission which required the witnesses to be sworn before a Judge or a Commissioner of this Court.  The stat. 54 Geo. 3. had amongst others two objects in view, first to make the parties to a suit competent witnesses & secondly, to direct the mode of transmitting their testimony to this Colony.  The statute begins by reciting that whereas His Majesty's subjects trading to & residing in the Colony of New South Wales be under great difficulties for want of new easy methods of proving, recovering & levying of debts due to them within the said Colony &c. be it enacted, that in any suit or action depending or brought in any court of Law or Equity within the said Colony, for or relating to any debt or account, wherein any person residing in Great Britain should be a party, it shall [p.70] and may be lawful to & for the Plf or Deft, & also to & for any witness to be examined or made use of in such action or suit to verify or prove any matter or thing by affidavit or affidavits in writing upon oath made before any mayor &c of the City where or near to which the person making such affidavit shall reside, & certified & transmitted under the common seal of such city; & every affidavit so made certified & transmitted, shall in all such actions & suits, be allowed to be of the same force & effect, as if the person or persons making the same upon oath, had appeared & sworn the matters contained in such affidavit viva voce in open Court."  It is clear from these words that it was intended by the legislature not merely to facilitate the mode of obtaining evidence, but to make the affidavit of the party himself evidence.  This is manifest [p.71] by the second section, which gives His Majesty the same privilege as to the mode of proving his debts by examining witnesses in like manner.  But it was objected that although this might be legal evidence in the suit, yet it could not become legal evidence except by consent before the arbitrator; but let it be borne in mind that this arbitration grew out of a suit pending in court, a bill in Equity had been filed but the cause having been withdrawn the matter in dispute was referred to arbitration.  There is no doubt that such evidence would have been admissible in a Court of Equity between the parties, & it follows that as the suit instituted was withdrawn, the arbitrators might lawfully admit it, & the rather go, from the object of a reference, which is to aim at the substantial justice of the case.  A reference to arbitration must be taken, but for the purpose [p.72] of narrowing the proof, but the rather to enlarge it, for the purpose of admitting all the evidence that could be procured.  It must be assumed that this was intended by all the parties by consenting to go to a reference.  The party however supposed to be improperly affected by such evidence had a remedy in his own hands; he might have determined the arbitrators authority by rescinding the submission.  This was not done.  It was competent, however, for the arbitrators to decide upon the admissibility of the evidence that was within the scope of their authority.  Could the admission of such evidence, be considered a plain mistake in law?  In Ridout v Pain 3 Alk. 494 it is said "If arbitrators go upon a plain mistake either as to law or fact, Equity will relieve."  "If it had been a doubtful point of law, the award might have stood, no truth standing the Court upon great deliberation should be of a different opinion." S.C.  Part of the objection went to the competency of Key, he being a Bankrupt & although certificated, yet being entitled to something out of any surplus [[p.73] he had an inducement to increase such surplus, & therefore incompetent on the ground of interest, but if the act of Parliament applies at all to this case, it removes the difficulty, because it would still in its terms make him a competent witness.  Though there was other evidence before the arbitrators to the same effect, which was free of objection, yet we concede that if the other evidence now objected to, was altogether illegal, we could not dissect the legal from the illegal part; but we are bound to hold the evidence admissible both in form and competency.  If the admission of the evidence was calculated to work a prejudice to the party objecting to it, he should have revoked the submission.  He has not done so, but has gone in with the reference, & taken the chance of the award being in his favour.  We think the other objections to the award are untenable.

Rule Discharged with costs.



[1 ] See also Australian, 25 September 1835.

Published by the Division of Law, Macquarie University