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

Rowley v. Harris [1847] NSWSupC 50


Supreme Court of New South Wales

9 November 1847

Source: Sydney Morning Herald, 10 November 1847, in Supreme Court Collection, Vol. 2, p. 25



This was an application made on a former day by Mr. MICHIE by motion, to discharge a second order to amend the plaintiff's bill, on the ground of its being irregularly obtained, and on the further ground of its being obtained by a false suggestion to the Court of the proceedings in the case, and that the amendments made by virtue of such order be struck out, and the Record be restored to the state in which it was immediately before such order was made.

Mr. BROADHURST opposed the motion, on which argument of counsel was heard on a former day.

His Honor gave judgment to-day on the motion, to the following effect.

The first point to determine is, whether the second order to amend, should be regarded as an irregularity or a nullity. If it were a mere nullity there remains nothing more to consider, for all subsequent proceedings founded upon it must be rendered null also. But on reference to the 13th and 14th orders of 1831 --- it appears to me manifest that the second order to amend, at most, amounts to an irregularity, and is not void or null. The 13th general order only says that the second order to amend shall not be granted by the Court, except under special circumstances; but it does not go on to say, and "if granted it shall be void." The 14th general order, however, relative to the plaintiff's leave to amend the bill, distinctly states. that in default of amendment within the prescribed time therein mentioned, "the order shall become void." If it were designed by the 13th general order that the second order to amend which, did not strictly comply with the conditions contained therein, should be null and void, it was as easy as easy a matter to declare it to be void as it was to declare void the species of order to which the 14th general order relates. That an order founded upon an untrue representation is not actually null, but irregular; and moreover, that the irregularity may be waived, appears from Grove v. Lansom, 1st Beavan, 297. In that case an order for taxation of a solicitor's bills as of course was obtained; but it wholly omitted all notices of the transactions which had taken place---that the bills were settled and the papers delivered up. "I am of opinion," said the Master of the Rolls, "that an order of course obtained on this statement wholly omitting so material an allegation is an irregular order." The case of Tarleton v. Dyer, 1 Russell v. Mylne, p. 1, established that the acceptance of the 20s. costs by the clerk in Court of the defendant, is a waiver of the irregularity of the second order to amend obtained as of course. But the waiver here is not limited to a mere acceptance of costs, but is signified by various subsequent acts of the defendant, and a long acquiescence in point of time. The order was obtained on the 18th September --- was served on the 21st September; the amended bill was filed on the 30th of September, and on the 1st of October the defendant's solicitor was served with a subpoena. Copies of the amendments were accepted; and so lately as the 26th of October the defendant's solicitor states that he would instruct his clerk to appear; and it is not until the 28th of October that a complaint is made of any irregularity. Meanwhile, in the interval, naturally and fairly presuming and believing, as he states, that the several amendments were duly obtained, the plaintiff's solicitor forwarded to England the commission for the examination of witnesses, together with copies of the record as amended. Considering then the steps that were taken subsequent to the service of the order on the 21st of September, and the time that was permitted to intervene, I conclude there have been such laches or acquiescence as to prevent my interference. From the affidavits of Mr. Dick and Mr. Want, there certainly does appear to be some misapprehension as to what occurred between them at the time of the service of the second order. Mr. Dick states that he believes Mr. Want understood him to mean that he accepted the costs conditionally, and he introduces into his affidavit an expression certainly indicative of a conditional acceptance of the 20s. costs. Though Mr. Want does not deny that such an expression may have been used, yet he positively and distinctly states that the 20s.was unconditionally accepted by Mr. Dick. It is not easy to account for these counter-statements otherwise than by supposing that all that one party said, may not have been heard by another. There is no imputation of mala fides on the part of Mr. Want. He swears he believes all the amendments were duly made and obtained --- and if he was in error in point of legal practice, some vigilance should be exercised to detect his error, and apply a timely corrective to it. Supposing it then to be a common case of irregularity, did Mr. Want by what he said render it unnecessary for Messrs. Holden and M'Carthy to inquire as to the order being regular? I think not. In Tarleton v. Dyer, the Lord Chancellor states "the defendant's solicitor knew, or ought to have known , that there had been a previous amendment;" and, moreover, here he not only accepted the costs, but retained them through several subsequent stages of the suit, and indeed until shortly up to the time of the present motion. I do not consider that the mere allegation by one solicitor to another that the practice he adopts is a correct one, precludes the necessity of the opponent from seeing whether it is so or not. It appears to me to amount to nothing more than the expression of opinion on a point of legal practice, not to the representation of a fact, and the opponent is not himself excused from looking into the case. The acceptance, then, of the costs, --- together with the receiving copies of the amendments, --- and the lying by for a month, amount in my opinion to a waiver of the alleged uncertainty. This application, therefore, must be refused; but as the course of proceeding by the plaintiff has been manifestly irregular, the application must be refused without costs.

Published by the Division of Law, Macquarie University