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

Hobbs v. Dangar [1839] NSWSupC 18

costs, taxing of - evidence, provisional - Myall Creek station - work and labour

Supreme Court of New South Wales

Willis J., 7 March 1839

Source: Australian, 9 March 1839[1] 

THURSDAY. -- Before Mr Justice Willis and Messrs Johnstone and Gosling, assessors.

Hobbs v Dangar. -- This was an action brought to recover £200 for work and labour done. The defendant put in a set off and paid £30 into Court. The defendant is a grazier and the plaintiff entered into an agreement to act as superintendent over his stock establishment, at Myall Creek, at the rate of £70 per annum, and £10 more at the end of the twelve months if the defendant was satisfied with his conduct. The agreement, which was put in and proved was dated the 3rd of October, 1836, and at the expiration of that time the defendant solicited the plaintiff to continue a year or two, when the plaintiff agreed for a second year at £100 per annum, but this agreement was only a verbal agreement. The plaintiff accordingly stopped in the defendants' service for another year, and in the month of October last, the defendant give notice that he should not require the plaintiff's services any longer; but this notice was not given until after the plaintiff had entered on his third year, as appeared from a letter dated the 12th of October, nine days after the term of the agreement had expired, and the defendant required the plaintiff to muster the cattle which were spread over a large tract of country, which the plaintiff attempted to do, and remained some time after the notice to perform but failed to do in consequence of their being scattered during his absence in attendance as a witness on the trial of the men for the murder of the blacks, at Mr Danger's station, at Myall Creek.

For the defence a number of orders directed to the defendant by the plaintiff, for the payment of money on account of salary were put in, and it was attempted to be shewn that the plaintiff had neglected his duty and had suffered the cattle to go astray, for want of common attention. A person named Cook, who superceded the plaintiff as superintendent stated that when he took charge there were 500 head of cattle short; but it also appeared that the plaintiff was prevented collecting them by illness, and by having to attend at the prosecution of the men for the murder, and as he had received no notice from the defendant, he did not conceive that he was bound to expend a month or two to collect cattle which had been suffered to stray, without any remuneration for his services.

The assessors took all the documents into consideration, and returned a verdict for the plaintiff -- damages £11 17s 8d,exlucsive of the £30 paid into Court.

 

Dowling C.J. and Willis J., 26 March 1839

Source: Sydney Herald, 29 March 1839[2] 

 

Hobbs v. Dangar. -- Mr. Windeyer moved that the matter might be directed to review his taxation in this case, having disallowed several items.  It appeared that witnesses in the case were examined de bene esse[3] by the consent of both parties, and that the master had refused to allow the fees for counsel's attendance; and that he had also taxed off the greater part of the costs for opposing two motions to have the trial postponed in which the plaintiff was successful, and which the court dismissed with costs; the master had also reduced the fee for the leading counsel Mr. Foster, from £6 6s. to £4 4s.

Mr. Gurner explained that the expenses respecting the motions for postponement of the trial were taxed off by mistake.  With respect to the evidence de bene esse, by the rules of court the cost of examination are not costs of the suit but must be paid by the party applying for leave to take the evidence, but if the witnesses are convicts the costs are costs in the case, and if vouchers had been produced to show, and it had been represented to him when taxing, that the witnesses were prisoners of the Crown he would have allowed the costs.

The Chief Justice said, that the Court has the most perfect confidence in the [m]aster who is placed to see that the suitors of the Court are not imposed upon by exorbitant costs.  It had been conceded by Mr. Gurner that if certain vouchers had been produced he would have allowed some of the costs that were claimed, and that alone would shew that the taxation must be reviewed.  The Court was not disposed to fetter Mr. Gurner as to his method of taxation, but with respect to the opposition to the two motions for the postponement of the trial, the costs for which were not allowed, he thought the taxation should be reviewed.  The fees for counsel attending the examination of witnesses de bene esse the Court thought were reasonable and should be allowed, for if the attendance of counsel is necessary in Court to cross-examine witnesses, they must be necessary up stairs; without laying down any general rule on the subject, but simply having reference to the present case, the examination de bene esse being by consent, the Court thought that the charges were reasonable.  Considering that the case lasted the whole day, the Court did not think that the brief for the [pla]intiff's counsel was marked to high at six gui[nea]s.  Under all these circumstances he though[t] [th]at the taxation should be reviewed.

Mr. [Gur]ner said that by the rule of Court he did not [co]nceive that he had any discretion in he matter, [?] he had he would have allowed the costs in[cur]red by the examination de bene esse.

Mr. [Jus]tice Willis said that by a statute passed in 1829 [?] 1830 the Courts are empowered to appoint a [co]mmissioner to examine witnesses de bene esse, an[d] when he was in England the last time, he was a [?] or in the Court of Common Pleas and it became [im]portant to examine a witness, and the expense[s o]f the commission were allowed.

 

Notes

[1]  For earlier proceedings, see Australian, 5 March 1839.  On the Myall Creek murders, see R. v. Kilmeister (No. 1), 1838; R. v. Kilmeister (No. 2), 1838; R. v. Lamb, 1839.

[2]  See also Sydney Gazette, 30 March 1839; Australian¸28 March 1839.

[3] As being good.  Provisionally acceptable evidence, subject to the further examination of a witness who was ill or about to leave the colony.

Published by the Division of Law, Macquarie University