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

Mowle v. Buckle [1837] NSWSupC 14

arbitration, judge as arbitrator

Supreme Court of New South Wales

Burton J., 21 March 1837

Source: Sydney Herald, 23 March, 1837[1 ]

Tuesday, March 21st. - Before Mr. Justice Burton, and a Special Jury.

Mowle v. Buckle and others - When this case as called on, Mr Justice Burton said, that as this was a case of complicated Merchants' accounts, it would be better to refer it to the arbitration of two Merchants, and he had a letter from the Chief Justice, who expressed the same opinion.  He did not make the suggestion to save himself trouble but because he thought the case could be better tried that way.

Some conversation took place between the Bench and the Counsel on both sides, in the course of which His Honor observed that at the Cape of Good Hope there was a legal accountant attached to the Court, to whom the Judges would refer such a case as the present, and direct him to make a report to the Court.  The Counsel for the defence having left the Court for a few minutes, returned, when Mr. Therry said that he had two propositions to make - one was, that the whole case be referred to the arbitration of Mr. Justice Burton; and the second, that it be referred to the arbitration of two merchants, Mr. Justice Burton to act as umpire, and decide all points of law that should be referred to him.  The learned gentleman, said he was emboldened to make this request, from knowing that His Honor had taken the trouble to act as Arbitrator in a similar case on a previous occasion.

Mr. Justice Burton objected to the first proposition.  He had on one occasion acted as arbitrator, but it was a practice that would be likely to lead to embarrassment; as in an application to set aside an award, the Court might feel some delicacy in having to set aside an award made by one of its members.  The second proposition would be in fact trying the case by a Judge and Assessors; but he had no objection to be nominated an arbitrator on an equality with any two gentlemen who might be named.

Mr. Therry said, that he was not aware His Honor would act as arbitrator in that way - his client was ready to refer it to arbitrators so appointed.

The Attorney-General, for the plaintiff consented, and nominated Mr. Edward Aspinall as his arbitrator, and the defendant nominated Mr. Thomas Smith.  A verdict for the plaintiff, damages 10,000l. was then entered, subject to the award of the arbitrators.

Counsel for the plaintiff, the Attorney-General and Mr. Kerr; for the defendant, Messrs. Therry, Foster, and Windeyer.


[1 ] See also Sydney Gazette, 14 and 23 March 1837; Dowling, Proceedings of the Supreme Court, Vol. 134, State Records of New South Wales, 2/3318, p. 82.  The case was back in court in October 1837, when it was referred to arbitration: Sydney Herald, 2 November 1837; Sydney Gazette, 31 October 1837.

On 10 April 1837, the Sydney Herald published another in a series of editorials in support of Burton J., referring to his actions in this case in particular; and see Sydney Herald, 13 April 1837.

Published by the Division of Law, Macquarie University