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

In re O'Sullivan v. Marchant


Supreme Court of New South Wales, Port Phillip

Willis J., 22 May 1841

Source: Port Phillip Herald, 25 May1841

In re O'Sullivan v Marchant - Mr Barry moved, that the award of the arbitrators in this case be set aside on the ground of misbehaviour and corruption on the part of one of the arbitrators, and that undue means had been used to suppress the testimony of a material witness.

Mr Brewster objected to the application being entertained, because the notice he had received did not contain the grounds of the application.

Judge Willis - Mr Barry could have applied for a rule nisi in the first instance and have served it afterwards. He could do so now.

Mr Barry said, he would adopt the suggestion of his Honor, and move for a rule nisi in the first instance; he did so upon an affidavit that set forth, one of the arbitrators had acted with partiality and injustice, and had been influenced by the Attorney for the opposite side, also threatening to hand a witness over to the Police, if he spoke; under these circumstances, the defendant would not abide by the decision, and he, Mr Barry, now moved for a rule nisi to set the same aside.

Judge Willis remarked, that it was necessary in the affidavit to make the rule absolute, to show that legal evidence had been refused; he thought the affidavit as at present too general. Instances ought to have been given of the grounds upon which the evidence had been excluded, and why it ought to have been received. Arbitrators ought to receive all evidence brought before them, and here it was sworn that evidence had been excluded; that was sufficient upon which to grant the rule nisi ; but to make it absolute, it would be necessary to set forth more stringent matter.

Mr Brewster hoped that he should be permitted to see the affidavits.

Judge Willis - if the other side do not adopt the proper course, I shall know how to act. What is the amount of award in this case!

Mr Barry - It is a trumpery award of and £6 costs.

Judge Willis greatly regretted that the case should be brought there day after day; the issuing the rule would be very expensive. If the parties were to calculate what they would get at the end of it, looking at the extra costs alone, he thought it would be better to give the amount to the public hospital or some public charity.

Mr Barry - Important decisions are often given at home in cases where the amount is only £1 10s. It was the principle which was involved in this case.

Judge Willis - I am quite aware of that, but it shows a great love of litigation. What object can parties have in their position of life to squabble about straws? Why not leave the whole matter as it stands to the decision of Mr Cunningham. Let the matter be left to him ab initio, including all costs incurred to the present time, and let the submission be made a Rule of Court.

The suggestion of his Honor was xceeded to on both sides.

The Court then adjourned until Monday.

Published by the Division of Law, Macquarie University