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

Doe dem. Cotton v. Farrell [1848] NSWSupC 19

procedure - new trial

Supreme Court of New South Wales

6 April 1848

Source: Sydney Morning Herald, 7 April 1848, in Supreme Court Collection, Vol. 2, pp 58-59 [1]

BEFORE the full Court.


In this case there had been one trial, and the plaintiff obtained a verdict. A new trial was subsequently ordered by the Court; and as it was said, by the plaintiff, the Court granted leave to the parties to read the judge's notes of evidence on any subsequent trial that might take place. The plaintiff had not availed himself of his right to go a second time to trial within the time limited by the rules of the Court; and now

Mr. DARVALL moved, on that ground for the defendant, for judgment, as in the case of a nonsuit.

Mr. MICHIE, contra, argued that the defendant could not now make such a motion, as a trial had been once had in the case, and, therefore he had such a direction now over the case that he might take the case himself down to trial by proviso. The COURT cited the case of Lockyer v. Hughes, as a case decided in this Court, in favour of the present application:---S.R. 58, Prac, page 204, was also referred to, to show that the present application may be made. Cases were then cited to show the practice on this head in England . Supposing then, said Mr. Michie, the Court should uphold the decision of Lockyer v. Hughes;--- then, it was submitted, that as the Courts will entertain the rag of an excuse for not going to trial, the plaintiff had the following excuse to offer, viz.; when the rule was taken out by the defendant, authorising a new trial, he failed to insert in it that the plaintiff might read the evidence from the notes of the learned Judge who tried the case. The plaintiff then gave the defendant notice of this omission, and requested him to get the rule altered. Such alteration was not made, and it was sworn that in consequence, the plaintiff, on account of his poverty, could not go to trial and summon his witnesses; and as the rule now stood, it was urged, he would be precluded from having those notes read at the subsequent trial.

Mr. DARVALL, in reply, said, the excuse sworn to was not true, and was a mere pretence of an excuse. Had the rule been defective, it was the duty of the party objecting to it to have it corrected, either before the Court or a Judge. This had not been done, ample time for so doing having elapsed; this excuse, therefore, was not now open to him..

The COURT decided, that they must regard the case of Lockyer v. Hughes as binding on them, as to the right of the defendant in this case to make the motion; and then came the question, said the Court, had the plaintiff offered a sufficient excuse for not having proceeded to trial? The Court said, they could only regard the excuse as a mere pretence or pretext. Had the defendant objected to the wording of the rule, a way was open to him to have had it amended at once; not having done so, he cannot now complain.

Motion granted.


[1] See also Doe dem. Cotton v. Farrall, 1847.

Published by the Division of Law, Macquarie University