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

Lyons v. Stephens and Stokes [1837] NSWSupC 16

taxing of costs, witnesses

Supreme Court of New South Wales

Dowling A.C.J., and Burton and Kinchela JJ, 4 March 1837

Source: Sydney Herald, 6 March, 1837[1 ]

Lyons v. Stephens and Stokes - Mr. Sydney Stephen moved that the bill of costs in this case be refered [sic] to the master for review.  The bill was originally £207, but had been taxed by the master to £177 15s. 5d. there were two items to which he would draw the attention of the Court.  There had been subp¿nas issued for two witnesses duces tecum¸ ten witnesses ad testificandum, and twenty-nine common subp¿nas, although fourteen witnesses had only been called; and on the case being put off for a few days, fresh subp¿nas had been issued, instead of the old ones being resealed as they should have been.

Mr. Foster opposed the motion of the affidavit of Mr. Unwin, who stated that al the witnesses subp¿ned were considered necessary by himself and the counsel employed on their side.  With regard t the second set of subp¿nas, they had been called for in consequence of the defendants having the trial postponed from the 17th to the 24th October.  The Court would recollect that the case was a very lengthened one, and from the art with which the libels were written, a very complicated case, and very difficult to prove, and it was considered necessary to have witnesses to prove the different facts refered [sic] to, and as it was understood that it was intended to traduce the plaintiff's character, it was necessary to have witnesses in attendance to rebut such testimony.

Mr. S. Stephen said that the case might have been a very difficult one to prove, but he recollected that when the trial was on, it was held up as one of the clearest libels that ever came into Court, and as for traducing the plaintiff's character, how could it be traduced more than his counsel had done when they opined their declaration, by stating that he was a convict attaint.

On being referred to, a Mr. Gurner said he would have renewed the subp¿nas which would have saved about six pounds.

The Chief Justice said the Court was always anxious that suitors should be put to as little expense as possible, and although the taxing of costs devolved on an officer of the Court, yet the Judges always kept to themselves the power of revising his taxations, and in the present instance, would look over the bill themselves, and by referring to the Judge's notes would be enabled to say what witnesses were really required.


Dowling A.C.J., and Burton and Kinchela JJ, 11 March 1837

Source: Sydney Herald, 16 March, 1837


Lyons v. Stephens and another - In this case, a rule nisi had been obtained, calling on the plaintiff to shew cause why the taxed bill of costs should not be referred back to the master for review, when their Honors promised to look at the bill themselves.  The Chief Justice said that the Court was of opinion the bill must be referred to the master to be re-taxed.  The principal objection made by the defendants was, that too many witnesses had been allowed.  By the bill, it appears that subp¿nas for thirty-nine witnesses had been issued, when by the Judge's notes, they found only nine witnesses had been examined.  It was not necessary to call witnesses to prove every averment in the declaration; all that was necessary was to prove the publication of the libel and its applicability to the defendant; the plaintiff appeared to have entirely overloaded his case with witnesses.  Although the judges would always see that professional gentlemen were fully paid for their labour, the Court must take care that its doors were not closed by excessive expenses.  As three Counsel had been allowed by the judge, of course, it was necessary that they should have briefs and copies of the pleadings, but the were of opinion that the bill must be referred back to the master, with instructions to disallow all expenses for issuing and serving subp¿nas for more than fourteen witnesses, which was the number which the plaintiff's attorney had sworn were examined.  Rule made absolute.


Dowling A.C.J., and Burton and Kinchela JJ, 28 March 1837

Source: Sydney Herald, 30 March, 1837[2 ]


The King at the prosecution of Samuel Lyons v. Stephens and Stokes. - Mr. Foster moved that the defendants be peremptorily called on to plead within ten days.  Ordered.

Lyons v. Stephens and Stokes - Mr. Sydney Stephen said that their Honors would recollect, that on a previous day he had made application to have the bill of costs in this case reviewed, when their Honors had directed that the Chief Clerk should review the bill, and tax off the expenses of certain witnesses.  The brief of which there were three copies contained the evidence these witnesses were to give, and at ten shillings a sheet came to a large sum, and these sheets should certainly have been taxed off; indeed it followed the previous order so much, as a matter of course, that he wondered at having the present application to make.

Mr. Gurner informed the Court that the briefs were already charged too low, and if the sheets complained of were taxed off, they would still be under charged.

Mr Stephen said, that after this statement, he of course had nothing more to say.




[1 ] See also Sydney Gazette, 7 and 14 March 1837; Australian, 14 March 1837.  For the initial litigation, see Lyons v. Stephens and Stokes, 1836.  For further litigation, see Dowling, Proceedings of the Supreme Court, Vol. 141, State Records of New South Wales, 2/3326, p. 35.

[2 ] See also Sydney Gazette, 30 March 1837; and Australian, 4 April 1837.

Published by the Division of Law, Macquarie University