Decisions of the Nineteenth Century Tasmanian Superior Courts
Meredith v. Hepburn 
civil procedure, notices - new trial
Supreme Court of Van Diemen's Land
Pedder C.J. and Montagu J., 22 April 1834
Source: Colonist, 29 April 1834
A Rule having been obtained by Mr. Gellibrand for a new trial, in the case of Meredith, v. Hepburn, the Solicitor General this day showed cause against it.
Our readers will recollect, that Mr. Meredith was non-suited in his action against Mr. Hepburn, inconsequence of the informality of the notice of the trial. - The rule was obtained on the ground of surprize - inasmuchas an admission, made by Mr. Ross, whoh was (at the time) Crown Solicitor, as to the validity of the notices, was not allowed his evidence by the Court. The Solicitor General, in his accustomed discursive style, animadverted in strong terms, upon the fallacy of the ground adduced. He contended that Mr. Allport, who was one of the Solicitors in the case, could not have been taken by surpirze, and that the Term was neither a moral, nor a legal definition. The material witness, one Mr. John Dunbar, was neither at Swan Port, nor at Oyster Bay, nor any other part of Hobart Town; but in the very centre of the Court. The notices had been sent by Messers. Cartright and Allport to Mr. Meredith, and by him delivered to Mr. John Dunbar, who was directed to serve them. No other witness could have severed those notices; therefore no other witness could have been meant; and that if he had attended Lectures at a certain finished academy for grown witnesses which had been established, he would most likely have been properly prepared. The definition of surprize is not applicable to the state of things on his trial; and although surprize may be ground for a new trial, it does not follow, that it must be so. In support of this, the Learned Gentlemen referred to a case of Harrison's digest, which rules that surprise must be conclusive, in order to allow if a new trial. He then urged the Court, not to lay down as a rule, the necessity of preparing a witness to give evidence. On the contrary, he was sure, this was a course of conduct, which their Honors would not sanction. If a new trial were granted, there was no evidence to shew, that any other witness could have been meant, except John Dunbar, and he, surely, could not have been taken by surprize.
The Chief Justice - There is not a word in the affidavit about preparing witnesses; - it refers merely to the preparation of evidence. There is a point, however, in the case, which has not been adverted to; and that is, whether the notice severed upon Mr. Hepburn, was strictly correct. If the plaintiff could prove, that the identical paper, severed by Mr. Dunbar upon Mr. Hepburn, was such a notice, there would be the end of the case.
Solicitor General - Dunbar swore, that he received the notices from Mr. Mereidth, who must have received them from Messers. Cartwright and Allport.
Chief Justice - Why must? There is no evidence to prove this? It is only taken for granted, as he might have received them from any other person.
Solicitor General - If you then will refer to your notes, you will find, that Dunbar positively swore, he received the notices from Mr. Meredith.
The Chief Justice - observed, that the affidavit did not state, that he undertaking was signed by Mr. Ross.
Solicitor General. - No, not previously to the second, but only to the first trial.
Mr. Gellibrand, in reply observed, with considerable warmth, that it would have been much better, if the Solicitor General had not indulged in observations so highly derogatory to the dignity of a professional gentleman, but confinded himself to the merits of the case. Such an expression as that "of finishing academy, for grown witnessed," was highly inpropper; and coming from where it did, or from whom it did, it would always excite his indignation, which he would take to leave as express. But his indignation was augmented, when such observations were made by an Officer of that Court - sitting at that table, and holding a high official appointment. Mr. Allport's affidavit could bear no such construction, as that which was imputed to it. What did it mean? Wht, that Mr. Allport, depending upon the validity of Mr. Ross's admission, did not think it necessary to make inquiry about the notices, and that he was taken by surprize, in consequence of their rejection by the Court! And this, after all, was merely a formal objection, and did not affect the substantial merits of the case. If, on the trial, Mr. Ross had given this word, even that would have been sufficient, from the honorable feeling, which existed amongst professional men, and which, he hoped, always would exist amongst them. It would be much better for all parties if these technical objections could be avoided, and that every case should stand upon its substantial merits alone; for, as the law now stands the doors of justice are often closed, and its best ends frustrated. He had shewn abundant cause, why new trial should be granted; and instead of calling upon the Court for reprehension upon Mr. Allport, the reprehension ought to fall upon those parties, who had so loudly demanded it to be cast upon that gentleman.
After a short and desultory conversation respecting Mr. Ross's admission, the Chief Justice read his notes of Dunbar's evidence, as to the serving of notices; and that of Mr. Allport, as to their preparation; when he stated, that the deficiency of the evidence, as to the identity of the notices, caused his decision as the "suprize" - there was no evidence, and the rule must, in his opinion, be discharged.
Mr. Justice Montagu perfectly agreed with the Chief Justicce. As regarding the admission of Mr. Ross, it could not extend to the second trial, unless some special reason had been assigned for such extension; this had not been done, and he was sorry for it. With respect to the notices, it ought to have been proven satisfactorily by the plaintiff, that the copy was exact, in every particular. This was a protection to Magistrates, which the Court would always support; and it should be perfectly convinced of the exactness of the notices, before trials should be allowed to proceed. There was nothing in Mr. Allport's affidavit to support the ground of surprize, in consequence of Mr. Ross's admission not extending to the second trial.
Source: Colonial Times, 29April 1834
The Solicitor General shewed cause against the granting of a new trial in the case of Meredith v Lord and Hepburn. The learned gentleman commenced by observing, that at the time the new trial had been applied for, Mr. Gellibrand had thought proper to make some rather pointed observations, relative to a want of professional courtesy on his part. He certainly felt that coming from such a quarter, they were entitled to every attention, especially as Mr. Gellibrand himself was not wanting either in personal or professional courtesy. The ground upon which the rule was applied for was, that they were taken by surprise, not being able to prove the service of the notice upon Mr. Hepburn. They were not prepared; for the witness Dunbar it appeared had not taken lessons in Mr. Allport's finishing academy for grown witnesses. The learned gentleman then read from Price's Reports, to shew that although surprise was certainly a good ground, yet the evidence must be complete, which he contended it was not in the present case. It was not even insinuated that any other individual could have served the notice.
The Chief Justice said that the question was not whether the notice was served, but whether the one served was a copy of the original, which question the witness Dunbar could not solve, because he had not compared the notices word for word, which was necessary, in order to his being assured that they corresponded.
Mr Gellibrand then rose. He was extremely sorry to hear the Solicitor General use language so highly derogatory to his station in that Court, as he had made use of towards Mr. Allport. To make such an insinuation, as that the witness Dunbar had not attended Mr. Allport's finishing academy, deserved the highest degree of reprobation, and for himself he must say, that he felt considerable indignation. He should feel indignant if he heard such an expression from an individual unconnected with the Court, how much greater therefore he would ask, ought to be his indignation, when he heard such an expression from a member of that bar, and an officer of that Court. With respect to what had been set up in opposition to his obtaining a new trial, he must say that he thought it should not have been mentioned, for on the last trial he fully expected that the fact of the service of the notice would have been admitted by the then Crown Solicitor, Mr. Ross, as in honour and in justice it ought to have been. Mr. Ross had promised (verbally, certainly) that the fact should be admitted. It was to be regretted, and no doubt the judges frequently did regret the pressing forward of technical objections; the door of justice was thereby shut, and the Court therefore laboured under considerable difficulties; and justly so he considered, since it was in the power of the Court to refuse to admit them. Abundant ground had been shewn for obtaining a new trial, and he therefore left it entirely with their Honors to say, whether or not it should be granted.
Their Honors said, that it was not stated in Mr. Allport's affidavit respecting the solicitor for the plaintiff having been taken by surprise, that Mr. Ross had promised to admit anything on the second trial - his promise only applied to the first trial.
Mr. Gellibrand said it was the practice at home to allow facts admitted upon the first trial, to be good upon the second; but he applied for a new trial upon another ground, which was, that the Chief Justice ought to have been satisfied with the evidence offered of the service upon the trial.
Their Honors consulted together for a few minutes, and then said that they could not consider Mr. Ross's promise to apply to the second trial. - Rule discharged.