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

Walker v Scott (No 2) [1826] NSWSupC 4

Prohibition - judge in own cause - ecclesiastical visitor - Visitor's jurisdiction -  schools -  education law - charitable trusts - law reporting

Supreme Court of New South Wales

Forbes C.J. and Stephen J., 19 January 1826

Source: Sydney Gazette, 26 January 1826


Reverend William Walker v. Archdeacon Scott


The argument in this case, which had been postponed to give the defendant an opportunity to bring the authority under which he claimed to act as King's Visitor before the Court, was resumed this morning.[1 ]  An affidavit of Frederick Goulburn, Esq. late Colonial Secretary, was put in deposing that the papers thereunto annexed were copies of two Government and General Orders, dated the 8th of  June, and the 23d of November, wherein the Archdeacon is distinctly recognised as King's Visitor.  An affidavit of Henry Dumaresq, Esq. Private Secretary to His Excellency the Governor in Chief, was also handed in, deposing that a certain despatch, addressed to Sir Thomas Brisbane, dated the 21st day of December, 1824; and from which an extract was appended, was an original despatch, and as the deponent believed, was in the hand-writing of Earl Bathurst.  This despatch purported to be instructions to the late Governor, and announced the appointment of the Rev. Thomas Hobbes Scott, as Archdeacon of the territory of New South Wales and its Dependencies; and stated, that one of his earliest duties would be to exercise the power of Visitor over the various schools, &c. in the Colony.

The Attorney General having handed in the foregoing affidavit made no other observation, but merely prayed for the decision of the court.

Mr. W.C. Wentworth, on the part of the applicant, contended that the only part of the documents laid before the Court, which had been authenticated in a proper manner, were the copies of the Government and General Orders, sworn to by Major Goulburn, as having issued from the Colonial Office; but these documents merely went to shew that the Governor imagined that the Archdeacon was Visitor, for they could not of themselves constitute or invest him with that office; in fact the Orders were only evidence of the Governor's impression, and that he was imbued with that impression from the despatch, and from another document that had been handed in, and for which there was no name.  With regard to the extract said to be from an original despatch, it was quite clear that, even if the Court could admit its authenticity, which he (Mr. Wentworth) contended it could not, as similarity of hand-writing was all that was sworn to, still if the Archdeacon were King's Visitor, he could not derive it from that document, for Lord Bathurst could not constitute him in that office, and therefore the despatch could not be any guide for the Court in considering the question before it.  The only document of any weight, was the extract from the Governor's instructions; but if the Court could, on such a document, dispense with the production of the commission, or letters patent, from which the Archdeacon must derive all his powers, what other conclusion could it come to in the absence of his appointment, but that he was appointed Visitor over schools and institutions, to which such an office attached; and that the Government either supposed that such schools and institutions were in existence, or that they would be founded, and that then he would enter upon his office.  These were the only observations he thought necessary to offer; he would still contend that no exclusive or exempt jurisdiction had been shewn to take away the authority of the Court over matters of that nature.

The Chief Justice, after a short consultation with His Honor Judge Stephen, stated that the Court would let the case lie over for further consideration, and to look into the cases on the powers of Visitors.  He certainly thought that a more regular form might have been adopted in appointing a King's Visitor, than that which was relied on before the Court.  The only thing like a form was the Governor's instructions, and the question was, could a party claim an exclusive authority, merely from a despatch of that kind without shewing that he derived it in some way from the Crown?  He would only then remark, that if it was an appointment, it might have been in a more regular form.

His Honor Judge Stephen was of opinion, that there were various questions raised for the consideration of the Court, previous to its coming to a decision on the case before it.  It might be one, whether the Governor had not given the Archdeacon a limited authority.  His late Excellency appeared to have been acquainted with the whole nature of the dispute between Mr. Walker and the Archdeacon, and that he would not accept of his resignation when it was tendered, not thinking that he had infringed any positive rule.  It might therefore appear, that he had not given up the power over the schoolmaster to the Archdeacon.  Taking a view of the whole case, from the affidavits which had been filed by Mr. Walker, for no affidavits had been filed by the Archdeacon, the only authority appeared to be through the Governor, and it therefore might be a very material point what powers he had given.  The Court not only required the Archdeacon to shew that he was Visitor, but it also required him to shew that he did nothing contrary to his character as Visitor.  It would appear, that all which had occurred had arisen out of a personal dispute between the Archdeacon and Mr. Walker,[2 ] and if such were found to be the case, it would of itself be a reason for the Court to grant a prohibition upon the mere principle of common law, as not allowing a man to be judge in his own cause.  There were many similar cases where Courts had granted prohibitions even where the power claimed was indisputable, and he (His Honor) would say, with great deference to the Archdeacon, that there was a great want of most material facts, which would enable the Court to come to a conclusion as to whether it was a case in which it would interfere.



Forbes C.J. and Stephen J., 31 January 1826

Source: Australian, 2 February 1826


A rule had been obtained on a former day,[3 ] calling upon the Archdeacon to shew cause why a writ of this court should not issue, to prohibit him from proceeding in a certain matter of complaint brought before him, as visitor of the public schools, against the plaintiff, and the case having been argued, the court this day gave judgment as follows:-

By the Chief Justice. - A prohibition has been prayed by the plaintiff to be directed to the Archdeacon of New South Wales, to restrain him from proceeding upon a summons issued by him under the following circumstance:-

The plaintiff is the master of an eleemosynary foundation at Parramatta, commonly called the female orphan school.  The defendant claims to be the visitor, and in virtue of his office as such, caused the defendant, as master of the school, to be cited before him, to answer certain matters of complaint set forth in the plaintiff's affidavit.  The summons is in the usual form of such instruments, and clearly purports to be the process of some court or tribunal, preparatory to its hearing and determining the matter brought under its cognizance.  The plaintiff, considering the power thus assumed to be unauthorised, has thought proper to claim the intervention of this court.  It is unnecessary to say anything upon the right of the plaintiff to apply to the court, nor of the power of the court itself to inquire into the justness of the application.  The act of parliament invests this court with all the authorities of the King's superior courts at Westminster; and by analogy to the practice of those courts, we are bound to grant a prohibition ex debito justitiae,[4 ] in every case where sufficient grounds are laid for demanding it.  (Lind. v. Rod, Doug. Rep. 619.)  The plaintiff suggests that the Archdeacon is not visitor of the orphan school, that the case is not within his jurisdiction; and further, that the governor of the colony has already inquired into, and determined the matter of complaint.  The question therefore for us to determine is, whether the jurisdiction sought to be exercised is legal or not; and in order to determine this, we must look into the nature of the school at Parramatta, and the legal foundation of the Archdeacon's claim to exercise the right of visitor.

It is stated in the plaintiff's affidavits that this establishment was founded by the government of the colony, and that its expenses are defrayed out of the local revenue - the appropriation of which, at least so far as concerns the maintenance of the school, is wholly dependent on the pleasure of the Governor for the time being.  Assuming this to be the true state of the case, the Governor, as the representative of the crown, is the visitor, unless a special authority be lodged, in some other person.  As an eleemosynary foundation, it was the creature of the founder, and became subject to his visitorial power.  He might either reserve such power or delegate it; and in delegating it, he might either make a general or special visitor.  No precise form of words is necessary, but in the absence of a definite authority, the court must look at the purview of the appointment to collect what power the founder meant to give to the visitor.  These few general principles are collected from a case which underwent much consideration in England (St. John's Col. v. Tod. 1 Bur. 800,) and they are quite sufficient to afford this court a safe conduct, through all the disputed grounds of the present application.  The simple question is, who is the King's visitor?  Is it the Governor of the colony - or is it the Archdeacon?

It is contended that the Archdeacon is the visitor, and his title to be so considered, is deduced from the following circumstances: viz. the admissions of the complainant himself, the recognition of the Governor, and certain instructions and letters, emanating from the crown through the Secretary of State.  With respect to the admissions of the plaintiff, it is certainly admitted by him that the Archdeacon's name appears subscribed as King's visitor at the foot of certain rules for the guidance of the school, over which he, the plaintiff, is master, and that the Governor had approved and subscribed, those rules;  but, we can draw no inference beyond what the plaintiff has drawn, namely, that the Archdeacon alledges himself to be visitor;  but, supposing him to be not so, we do not see how this admission (if such can be called, while the plaintiff is before the court expressly to dispute the fact) can enable us to consider the Archdeacon as visitor, with power to exercise the functions of an office in its nature judicial.  Will a defendant's single admission create a judge?  It has been ruled that the admission of a party cannot give jurisdiction, where originally there was none (2nd Mod. Rep. 275.) The recognition of the Governor does not stand on better ground; it is impossible to say what power his Excellency may have to recognise  certainly not the power of taking cognizance of the subject matter over which the Archdeacon was about to exercise jurisdiction; for, it appears that the Governor had actually exerted that power himself  that he had enquired into the subject of the Archdeacon's charge, called upon the plaintiff to answer it, and declared himself entirely satisfied with the plaintiff's explanation that in short, that his Excellency had heard and determined the whole matter of complaint.  The Governor is reported to have expressed himself in the following words :

"The explanation which you laid before me, of the reason of your absence from the Female Orphan School, was perfectly satisfactory; and, as you have requested my judgment of the matter of the Archdeacon's complaint, I can only repeat that your explanation has afforded me every satisfaction.  In this place, also, I may state, that the tender of your resignation, in consequence of a dispute between you and the Archdeacon, I cannot feel myself justified in accepting, &c."

The Governor then appears to have exercised his judgment on the case, and to have decided it.  Whether his Excellency had the power to decide it, is another question; but, as mere matter of fact, it is clear that his taking the case under his own cognizance as the visitor, is irreconcilable with the supposition that he m[e]a[n]t to recognize that power in another person.  But, whether his Excellency considered it so or otherwise, it would not alter the legal nature of the question, which still remains where it was.  Is the Archdeacon the legal visitor?  In support of this title, there have been laid before the court several affidavits, amounting in substance to this, that his Majesty has by his instructions to the Governor, expressed his royal pleasure "that the Archdeacon should act and be the visitor of all schools and religious foundations maintained throughout the colony, by grants from the crown," and that a despatch from Earl Bathurst has conveyed the same intelligence to the Governor.  But, these two instruments taken together, neither create a visitor, nor do they define his authority.  As a general proposition, it is no doubt true, that if there be no words of limitation in the nomination of a King's visitor, all the powers incidental to the office would naturally follow.  But, it is to be observed, that by the dispatch which is now before the court, it is required of the visitor to transmit to the Governor, or through the Governor to the Secretary of State, a report of such circumstances connected with the schools; as he might think necessary to bring under the consideration of government; and, it is further to be observed that, in conformity with this instruction, the Archdeacon "did feel it his duty to lay this matter of complaint before his Excellency, to be transmitted to his Majesty's government in England."  Therefore, what the precise powers were, which were intended to be delegated, or what reserved, we cannot collect from the affidavits before us.  We do not, however, rest any material part of our decision upon this uncertain ground.  We hold upon broad first principles, that the power to exercise any judicial office, of any kind or character whatsoever, must emanate from the crown  that the crown only grants such offices by letters patent  that no such letters patent, nor any proofs of their existence, have been laid before us  that we cannot consistently, with the principles of law or the rules of evidence, admit as proofs mere extrinsic facts, to supply the place of those formal instruments, by which alone the crown can delegate its prerogatives, or alienate its rights  that these principles are peculiarly applicable to the creation of an office in its nature judicial; and, least of all would it be proper to break through them in determining a question of official right, directly put in issue between the local government (by acts of the late Governor) and the Archdeacon.  Impressed, as we are, with the belief that it has been the intention of his Majesty's government to place all the schools and religious foundations in this colony, under the visitation of the Archdeacon; we would respectfully suggest that the office of visitor should be created by a regular and formal grant from the crown  upon the state of facts before the Court, we have no alternative but to grant a prohibition.  Rule made absolute.



[1 ] See Walker v. Scott (No. 1), December 1825, and see footnote 1 of that case for Forbes' private views of the matter.  For other cases concerning education in 1826, see Halloran v. Hall, May 1826;  R. v. Broadbear and Broadbear, June 1826.  See Sydney Gazette, 15 March 1826, for a copy of the Letters Patent which created a corporation for managing church and school lands in New South Wales. 

See also Broadbear and Wife v. McArthur, McAlister, and Bowman, March 1827.  Scott prosecuted two of the staff members of the school, the Broadbears, under master and servant legislation, but the Supreme Court overturned the conviction in R. v. Broadbear and Broadbear.  The Broadbears then sued the magistrates for false imprisonment.  These cases are discussed by C.H. Currey, Sir Francis Forbes: the First Chief Justice of New South Wales, Angus and Robertson, Sydney, 1968, ch. 17.  Forbes C.J. described them to Horton in a letter on 27 March 1827, Historical Records of Australia, Series 4, Vol. 1, pp 711-713.

[2 ] On 28 January 1826, the Sydney Gazette had to make the following embarrassing statement: "It was only in our last Paper, that, for the first, time, we adverted to the accuracy and general length of our Law Reports, and it was rather anomalous that so curious an incident as the following should happen on the same forenoon:--- As our Reporter entered the Court the learned Attorney General was soliciting the interference of their Honors the Chief Justice  and Judge Stephen, to take notice of certain inaccuracies or mis-statements, which had that day gone forth in the Sydney Gazette, in reference to the case of the Reverend William Walker versus the Venerable Archdeacon Scott.  The learned Gentlemen [sic] stated to the Court that certain expressions, which fell from Mr. Justice Stephen, wherein His Honor observed, `it would appear that all which had occurred had arisen out of personal dispute between the Archdeacon and Mr. Walker,' that the course of reasoning was not urged in the positive degree, but couched in hypothetical terms, and he (the Attorney General) therefore entreated that such mis-statement might be duly noticed, in order that no incorrect impression should spread abroad.  Their Honors consulted for about five minutes on the subject, a copy of the Sydney Gazette being handed to the Bench, and Mr. Justice Stephen was pleased to remark, upon calling the several circumstances as hastily as he could to his recollection, that he was not aware whether his views were stated positively or hypothetically; but, if they were stated in the latter sense, His Honor could easily see how the Reporter might possibly be mistaken, owing to that observation which he had felt it his duty to take of the various correspondences that passed between the parties; and the Court further observed, that even if a mis-statement had been published, still it was exempt from that wilful intention which could call for the interference of the Court in a summary way.  The Court, therefore, saw no reason to interfere."  On 26 January 1826, the Sydney Gazette had boasted about the accuracy of its law reporting.

On 28 January 1826, the Gazette said that "We do not think it likely, so careful are we of our Law Reports, that the Supreme Court will ever have occasion to visit us with its censure."  Despite that, there was a further complaint to the court about it in early February 1826: Sydney Gazette, 11 February 1826.

Ultimately, this case formed part of Archdeacon Scott's formal complaint against Stephen J.  The complaint concerned Broadbear and wife v. McArthur, McAlister, and Bowman, March 1827.  The latter case led to correspondence between Forbes C.J. and Governor Darling about whether Scott had had authority to act in January 1826.  This correspondence shows that the Governor had power to put Scott in the position of visitor, but that Attorney General Bannister had recommended postponement until the conclusion of the litigation in Walker v. Scott (No. 2).  See Enclosure with Lt Gov Darlings Despatch No 73 - 1827, Mitchell Library A 1199 (CY 524), pp 1289-1304.

Governor Darling reported on Walker v. Scott (No. 2) to Earl Bathurst on 5 February 1826, Historical Records of Australia, Series 1, Vol. 12, p. 161.  He said that he had delayed issuing Scott's patent until after the conclusion of the case, and that the court found that Scott had acted prematurely in assuming the jurisdiction of a Visitor.  He would now issue the patent immediately.  He forwarded a copy of the Australian, which contained, he said, an accurate account of the judgment.  He also included a report of the board of inquiry into the Orphan School.

On 7 May 1826, Darling's despatch to Bathurst included Attorney General Bannister's report on this case which had been prepared at the request of Scott.  Bannister argued that Forbes C.J. was wrong, basing his argument on King v. Bishop of Ely, 5 Term Report 477.  These and other documents relating to the case are at Historical Records of Australia, Series 1, Vol. 12, pp 273-289.

[3 ] This judgment was reported briefly by the Sydney Gazette, on 1 February 1826; and then fully on 4 February 1826.  The reports of the Australian and the Sydney Gazette are the same, except in minor matters of punctuation.  Forbes C.J. handed down a written version of the judgment, but to the Australian, not to the Sydney Gazette.  The Gazette presumably copied the Australian's report a couple of days later, changing the style of punctuation to match its own conventions.  This is apparent from a comment in the Gazette on 4 February 1826.  The Gazette's comment also said that Forbes C.J. had written out the judgment "with his usual anxiety for accuracy in cases of importance ... in order that the same might appear in the Public Papers, free from any misrepresentation".  The same seems to have happened in R. v. Broadbear and Broadbear, June 1826.

[4 ] As a debt of justice.  A remedy which the applicant obtains as a matter of right.

Published by the Division of Law, Macquarie University