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

In re Gellibrand [1827] NSWSupC 59

legal practitioners, admission

Supreme Court of New South Wales

Forbes C.J. and Stephen J., 24 September 1827

Source: Sydney Gazette, 26 September 1827

Shortly after Their HONORS, the Chief Justice and Mr. Justice Stephen, had taken their seats upon the Bench, this morning, J. T. Gellibrand, Esq. prayed to be admitted to practise as a Barrister and Solicitor of the Supreme Court of New South Wales, in the usual form.  The learned Gentleman having handed in the necessary testimonials.[1 ]

Mr. W. C. WENTWORTH rose and stated, that, in justice to Mr. Gellibrand himself, as well as to the Bar, he thought it necessary to lay before the Court, a statement, which he was prepared to put in the form of an affidavit, if the Court thought proper, of what had been told him by a Captain Ostler, at his (Mr. W.'s) table, in the presence of several other persons, and which was this: Captain Ostler arrived in Van Di[e]men's Land, much about the time that Mr. Gellibrand came to that Colony.  Some transactions took place between them, and Capt. Ostler sold goods to Mr. Gellibrand to the amount of £300, for which he gave a bill drawn upon some person in England.  Considerable difficulty occurred in England, when the bill was transmitted or taken there for payment, in discovering any thing about the person on whom it purported to be drawn; when, after a great deal of enquiry, it was learnt, that such an individual had been in existence, but had been dead for five or six years.  This statement, as told to him, at his table in the presence of several others, by Captain Ostler, he (Mr. Wentworth) was prepared to make on oath, in order to give Mr. Gellibrand an opportunity of contradicting it in the same way, if he could do so.

 Mr. GELLIBRAND observed, that the motives which had induced Mr. Wentworth to make so gross an attack on a gentleman fully as respectable as himself, it was not for him to enquire into.  It was sufficient for him to say, that there was not one word of truth in the statement which had been just made to the Court; with this exception, namely, that on his (Mr. Gellibrand's) arrival at Van Diemen's Land, he purchased some wines, and other things which he stood in need of, and which he had omitted to furnish himself with on leaving England, to the amount of £300, from Captain Ostler, for which he gave him a check on the Bank, which was instantly paid.  He had only again to add, that a more wanton attack never was made on any individual.

Mr. WENTWORTH observed, that, with respect to the observations of Mr. Gellibrand about the motives which influenced him in making his statement, he disdained to answer them.  He was ready to put on oath the statement he had made, and he would ask the Court, he would ask every one present, whether he was doing any more than an act of justice to the Court, and to the bar of which he was a member, by mentioning the circumstance, and whether, also, it was not an act of justice towards Mr. Gellibrand himself whose intention to make his present application he knew nothing of, till he had seen the newspaper of this morning, to afford him an opportunity of meeting the charge.

Mr. JUSTICE STEPHEN stated, that whatever might be the determination of His Honor the Chief Justice on the application to the Court, he hoped he should be excused from at all consulting or expressing his sentiments in any way on the occasion.

The CHIEF JUSTICE observed, that he should at once have admitted Mr. Gellibrand, as a matter of course, on the credentials which he had produced, it appearing to him that the Court, according to the charter, had no other than a mere executive power to do a certain thing, when it was satisfactorily shewn that the applicant had been admitted to the King's Courts at home.  There was, however, a clause giving the Court power to remove one of its practitioners, upon a cause shewn, and he thought it but a fair interpretation of that clause to say, that if that which would amount to a cause for a removal, were shewn before admission, the Court had power to reject an applicant so disqualified.  As the case before the Court then stood, he thought it would be more satisfactory if the circumstances stated on each side were verified by affidavit, in order to give the Court an opportunity of looking more particularly into the case.  His Honor observed, he was pleased to find Mr. Gellibrand had so promptly and so directly denied the truth of what Mr. Wentworth had stated, and he thought the affidavits should be made, and the matter disposed of directly; in the mean time, the consideration of Mr. Gellibrand's application was deferred.

TUESDAY 25. --- In the case of the application of J. T. GELLIBRAND, Esq. to be admitted a practitioner of the Supreme Court, the CHIEF JUSTICE directed the affidavits to be read immediately on taking his seat this morning.  The affidavit of MR. WENTWORTH, contained a recapitulation of the statement made by him yesterday, whilst that of Mr. GELLIBRAND, most particularly and unequivocally denied that statement in every part.  Mr. WENTWORTH admitted that Mr. GELLIBRAND'S affidavit was a complete answer to his hearsay statement, and observed, that, notwithstanding the attempt that was made to impugn his motives yesterday, he felt it was a duty he owed to the Bar, in bringing the matter before the Court, and but justice towards Mr. GELLIBRAND to afford him an opportunity of putting upon record, a denial of a statement which has reached many other ears besides his.

THE CHIEF JUSTICE, as well as MR. JUSTICE STEPHEN, was of opinion, that Mr. GELLIBRAND had most satisfactorily answered the allegations brought forward against him, and ordered that the name of Mr. GELLIBRAND should forthwith be enrolled as a practitioner of the Supreme Court.

Mr. GELLIBRAND took the usual oath, and was admitted accordingly.[2 ]

The following are the affidavits of MR. WENTWORTH, and MR. GELLIBRAND, as read to the Court.

"WILLIAM CHARLES WENTWORTH, Esq. Barrister at Law, and also under and by virtue of the charter of the Supreme Court of New South Wales, one of the Attornies, Solicitors, and Proctors, of the said Court, maketh oath and saith, that during the last voyage of William Ostler, Master of the merchant ship the Heroine, to this Colony, the said William Ostler, in the course of a conversation which took place at Petersham, the then residence of this deponent, stated, in the presence and hearing of this deponent, and several other Gentlemen who were dining that day with this deponent, that Joseph Tice Gellibrand, formerly Attorney General of Van diemen's Land, purchased a considerable quantity of goods of him, shortly after the said Joseph Tice Gellibrand arrived in Van diemen's Land to assume that office; that this deponent does not recollect the exact amount of the goods so stated by the said William Ostler to have been purchased from him by the said Joseph Tice Gellibrand, but that the said William Ostler stated to this deponent, that the said Joseph Tice Gellibrand on a Gentleman in England; that upon presenting, or endeavouring to present the said bill for payment, it was ascertained, either by the said William Ostler, or some person on his behalf, that the Gentleman on whom the said bill was drawn, had been dead several years before the said Joseph Tice Gellibrand had quitted England.  That the said William Ostler further stated, at the same time, that in consequence of the death of the said Gentleman, on whom the said bill had been drawn, as aforesaid, he had been unable to get it protested for non acceptance, and for non-payment, and casually asked this deponent what would be the best course for him to adopt, under the circumstances, to obtain payment of the said bill, from the said Joseph Tice Gellibrand, and that this deponent recommended him to send the said bill to his commercial agent, in Van Diemen's Land, with directions to the said agent, to intimate to the said Joseph Tice Gellibrand, that if the said bill was not immediately paid, he, the said William Ostler, would cause him to be indicted for a fraud, and this deponent lastly says, that from the statement made by the said William Ostler, on the above occasion, this deponent felt not the least doubt that the said William Ostler was at that time in possession of the bill which formed the subject matter of the said conversation."

(signed)W. C. WENTWORTH."

Sworn in open Court, this 24th

day of September, A. C. 1827.

"JOSEPH TICE GILLIBRAND, at present residing in Sydney, in New South Wales, Esq. maketh oath and saith, that this deponent, sometime in the month of May, One thousand eight hundred and twenty-four, purchased of William Ostler, at that time master of the ship Heroine, then lying in the river Derwent, in Van Diemen's Land, a quantity of wines and other goods amounting in value to about 870 dollars.  And this deponent further saith, that at the time of such purchase, this deponent kept cash at the Bank of Van Diemen's Land.  And this deponent further saith, that as soon as this deponent was applied to by the said William Ostler for payment of the said goods, which was a few days after the delivery thereof, this deponent drew a check on the Cashier of the said Bank, for the full and entire amount thereof, being so far as this deponent recollects, for 868 Spanish dollars, and delivered the said check into the hands of the said William Ostler, in payment for the said goods, and which said check was duly paid at the said Bank, and the amount thereof debited to this deponent, this deponent having at that time a sum of money considerably exceeding the amount of the said check to his credit, at the said Bank; and which said check is now in the possession of this deponent, in Van Diemen's Land, as being fully paid and satisfied.  And this deponent further saith, that he never proposed or suggested, to the said William Ostler, to pay him for the said goods, or for any part thereof, by any bill, or draft, upon any person in England; nor has this deponent ever drawn any bill of exchange, or draft, or any other instrument, from Van Diemen's Land, upon any person or persons in England.  And this deponent further saith, that this deponent never purchased any other goods of the said William Ostler, and that the full amount, so purchased, was paid to the said William Ostler, by the said check of this deponent as aforesaid, and in no other manner."

(signed)"J. T. GELLIBRAND."

Sworn in Court, the 25th

September, 1827.

Notes

[1 ] Gellibrand was the former Attorney General of Van Diemen's Land, after which he was editor of The Tasmanian.  For comments on this case, see Sydney Gazette, 26 September 1827.

[2 ] Wentworth and Gellibrand were in other conflicts as well.  See R. v. Wardell (No. 2), 1827.

Published by the Division of Law, Macquarie University