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

Assignee of Pawley v. Matthews [1847] NSWSupC 1

procedure

Supreme Court of New South Wales

Stephen C.J. , June 1847

Source: Sydney Morning Herald, 14 June 1847, in Supreme Court Collection, Vol. 1, p. 121

The CHIEF JUSTICE delivered judgment as follows:-

In this case, upon an affidavit in the usual terms, a reference was made to the Prothonotary, under the 5 Vict. No. 9, s. 18, of all matters of account in dispute in the cause; and he was to take evidence on the several issues joined, as incidental to the said matters of account, and report such evidence, as well as his finding or conclusion on the matters so referred. The declaration was in assumpsit, on a promissory note made by the defendant; and the common money counts were added. To these, the defendant pleaded the general issue; and to the first count, that the note was made for the plaintiff's accommodation only, and without value. There were pleas also of payment and set-off.

A very lengthened and tedious examination ensued, on this reference before the Prothonotary; the evidence exclusive of the various exhibits, extending over one hundred foolscap pages.   It appeared that there had been very many transactions between the parties, (that is to say, the original plaintiff Pawley, and the defendant,) embracing deliveries of goods, moneys paid, and bills or notes given by one to the other, during some years, by way of accommodation and otherwise.   The plaintiff insisted, that the note declared on was given for goods, of which he produced an account.   The defendant denied the delivery of any such goods; he asserted that the note in question was given, to renew a previous one of the same amount, both being for the plaintiff's accommodation; and he distinctly proved that one of these was paid by him - he alleging that it was so paid, by setting off a much smaller sum due to himself, which he was willing to sacrifice, and which Pawley consented to take in liquidation.   In order to determine the truth on these matters, it appeared to the Prothonotary (as it did to us, on the hearing of the evidence,) that it was necessary to go into all the accommodation and other accounts, on both sides, between the parties.   The evidence appears to have been received, however exclusively, as tending to decide the question on the second issue, of accommodation or value given; as the plaintiff offered no evidence on the money counts, and the defendant abandoned the pleas of payment and set off.   In the sequel the Prothonotary was of opinion that the defence was made out; and he awarded, accordingly, that the two first issues should be entered for the defendant, and the third and fourth (being those given up) for the plaintiff.

On the coming in of this finding or award, in the last term, the usual application was made for carrying it into effect; and the now plaintiff, the assignee, opposed the motion on several grounds.   These applied, chiefly, to the order of reference.   The award, itself, however, was also objected to; as going beyond that order, and in part not being in compliance with it.   The Court declined to give effect to the last mentioned objections; and a majority of the Court held, that the reference itself was proper - not merely on the facts, as they appeared to the Judge on its being applied for, but also as being a case within the fair construction and intendment of the Act, under which the order was made.   The plaintiff then moved to set aside the award, on sundry grounds; some of which were, in substance, the same as those previously disposed of; but the others were addressed to the conduct of the Prothonotary, in his proceedings on the inquiry before him, to alleged mistakes made by him, and to the conclusions at which he arrived.   Affidavits by the plaintiff, his attorney, and his clerk, entering into a variety of details, were filed in support of this motion; the whole of the voluminous evidence in the case was read, and commented on; and the Court was most zealously and able addressed, on the several points, by Mr. Foster and Mr. Darvall for the plaintiff and Mr. Windeyer and Mr. Fisher for the defendant.

We have considered the objections thus raised, and the observations of the learned counsel on them; and we are of opinion that the plaintiff has failed in establishing any of those objections, and that the Prothonotary's report or award must therefore stand.   We do not think it necessary, or desirable, all things being considered, to enter into various points in detail.   It is sufficient to say, that the several allegations and suggestions, on which the conclusion there arrived at was impeached, and by which the proceedings of the Prothonotary were impugned, appear to us to hafe been fully refuted or explained.   We entertain not the smallest doubt, that the plaintiff has really nothing to complain of; and that justice has in this case been done between the parties.

As to the result, indeed, on the main point in contest, and by which the fate of the cause must have been decided, by whatsoever tribunal investigated, the circumstances were such as almost to render any other impossible.   The facts appear to us to have been fully and fairly disclosed; the whole of the transactions between the parties, for some years, (without reference to which, a conclusion could not have been satisfactorily arrived at,) were gone into; each of the litigants was examined; time was repeatedly given to the plaintiff, to complete his case; the accounts, showing the course of dealing between them, in the case of accommodation paper, were produced. A jury, it is said, was nevertheless the appropriate tribunal.   On that point, having regard to the enactment in our local Act of 5. Vict. No. 9, the Court had already expressed its opinion. We will add, that no such investigation could have taken place, before a Jury, without an expenditure of time, to say nothing of other considerations, to which no Court and Jury ought in such cases to be exposed. That tribunal, however, having been in fact relieved from the investigation, the only points for our decision now are, whether there has been any irregularity, other than of form merely, in the subsequent proceedings; any misconduct in the officer charged with the inquiry; any substantial or material error in them; any mistake in substance in them, or in his decisions in the course of them.   And, finding all these questions in the negative, our simple duty to the defendant in this case is, to refuse the rule asked for - with costs to be paid by the party moving.

Published by the Division of Law, Macquarie University