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

Outtrim v. Bowden [1847] NSWSupC 46


Supreme Court of New South Wales

Stephen C.J., December 1847

Source: Sydney Morning Herald, 14 December 1847, in Supreme Court Collection, Vol. 1, p. 39


Mr. FISHER, on a former day, had obtained a rule nisi calling upon the plaintiff to show cause why the matters in difference in the cause should not be referred to an arbitrator; and he now moved to make that rule absolute.

Mr. DARVALL, on behalf of the plaintiff, took the two following preliminary objections; first, that the application had already been made before a Judge in Chambers; that he dismissed the same, --- and therefore, that the application could not be renewed before the full Court by way of appeal. His second objection was, that the 26th section of the last Jury Act put it out of the power of the Court, or of a Judge, to compel a person to submit the cause to the arbitrament of an arbitrator, for that section provides that all actions shall be tried before a Judge and a Jury, &c.

Mr. FISHER, on the first ground, contended, that the Court had power to entertain the motion, citing Pike v. Davis , 6 M. and W.; Wearing v. Smith, 10 Jurist; and Johnson v. Knowles, 1 D.N.S., 30. And on the last point urged, that the last Jury Act could not repeal the Advancement of Justice Act (which gave the Court the power to compel parties to submit to arbitration,) by implication; and looking at the object and intention of the last Jury Act, it could not have been the object and intention of the Legislature to have repealed the former Act.

His Honor the CHIEF JUSTICE, in delivering the judgment of the Court, said that he was of opinion that the first objection taken to the motion was a good one, and ought to prevail; and the rule he laid down was this: that where the Court and a Judge have a co-extensive and alternative jurisdiction, and a Judge having decided, it not being on a subject matter within his discretion merely, and being wrong either in his view of the facts or of the law, --- then the same application might be made, by way of appeal, to the full Court; but if the matter, as in this case, were purely within the discretion of a Judge, whether he should allow the application or not, then no application by way of appeal could be made to the Court. His Honor further said, but without giving any opinion upon the statutory objection, that the majority of the Court were of opinion that that objection could not be sustained. The application was therefore, the distinction now drawn being new, dismissed without costs.

Published by the Division of Law, Macquarie University