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

Division of the Legal Profession [1829] NSWSupC 34

legal practitioners, division of profession

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 1 June 1829

Source: Australian, 2 June 1829

The Supreme Court was deeply engaged the greater part of yesterday, upon the question as to whether a division shall be made of the bar or not, into Barristers and Attornies.[1 ]  The three Judges were present, and so were all the great and minor wigs, several of whom delivered their opinions upon the matter "in good set terms."  Mr. Mackaness spoke first -- then followed Doctor Wardell, at considerable length -- then Mr. Wentworth, &c. &c.  Mr. Poole proposed the subject should be discussed in chambers, but his motion was not seconded. -- The Judges have postponed their final judgment.

 

Forbes C.J., Stephen and Dowling JJ, 5 September 1829

Source: Sydney Gazette, 8 September 1829[2 ]

In Banco

DIVISION OF THE BAR.

Shortly after the Judges had taken their seats this morning, the Chief Justice expressed himself to the following effect:-

"This being the day appointed by the Court for its ultimate decision on the proposed division of the profession of the law, we are now prepared to state the conclusion at which we have arrived on the subject.  The matter was argued on the 1st of June last, and a protest, signed by Mr. Moore and others, subsequently laid before the Judges.  We have given the most anxious attention to all the arguments that have been urged, both orally and in writing, and upon the fullest consideration, we have come to the conclusion that it is most expedient to divide the duties of the profession.  Without going into the reasons upon which we have arrived at this opinion, I will merely state that the conclusion which we have formed is founded upon a most mature consideration that the intended division will be for the interests of the public, of the profession, and materially expedite the business of the Court.  We have therefore resolved, first, that the duties of the profession shall be divided as in England, but that the Rule which the Court will make on this subject shall not take effect till His Majesty's pleasure be known; secondly, that the several practitioners who have been already admitted, up to the date of the intended Rule, shall be allowed to make an election at to which branch of the profession they will adopt; thirdly, that in future no persons shall be admitted to practice as Barristers or Advocates who have not been duly admitted in some of the King's Courts at home; and lastly that no person shall in future be admitted to practice as an Attorney who has not either been admitted at home, or duly articled to some practising attorney in New South Wales for the term of five years, or have served five years as a clerk in the office of the Supreme Court."

 

Source: Sydney Gazette, 1 October 1829[3 ]

Rules and Orders

of the

SUPREME COURT.[4 ]

----------------------

In the Supreme Court.

30th September, 1829.

It is ordered, That the business of the Profession of the Law be divided in this Court in like manner as the same is divided in England, provided, that this Rule shall not take effect until His Majesty's pleasure shall first be known.

That the several Practitioners admitted in the Supreme Court, at the date of this Rule, be allowed to elect to which Branch of the Profession they will adhere; such Election to be made and signified to the Court within the time limited for the preceding Rule to take effect.

That no other Persons be admitted as Barristers, in the Supreme Court, unless such Persons shall have been duly admitted as Advocates, or Barristers in some one or other of the King's Courts in Great Britain or Ireland.

That from and after this Rule, the following Persons only shall be eligible to act as Solicitors, or Attornies in the Supreme Court, namely:---

1st.  Persons actually admitted as Solicitors, Attornies, Proctors, or Writers to the Signet, in some one or other of the King's Supreme Courts within the United Kingdom of Great Britain or Ireland.

2nd.  Persons having been articled to some practising Solicitor, or Attorney, in New South Wales, and having served the term of Five Years of Clerkship.

3rd  Persons who having been so articled, and served for any period of time, shall complete the residue of the full term of Five Years of Clerkship in England, or who, having been duly articled and served, as aforesaid, in England, shall complete the residue of the full term of Five Years of Clerkship in New South Wales; or,

4th.  Persons who shall have served the term of Five Years as a Clerk in the Office of the Supreme Court.

(signed)FRANCIS FORBES.

 

Notes

 

[1 ] For a report of the earlier hearing in June 1829, see Australian, 2 June 1829; Sydney Gazette, 4 June 1829.  See also Sydney Gazette, 10, 14 and 28 March, and 2 April 1829; Australian, 3 July 1829.

For a description of these proceedings, see J.S. Dowling, Reminiscences of a Colonial Judge, Federation Press, Sydney, 1996, pp 20-22.  The author, who was the son of Dowling J.,  noted that all the barristers favoured the division, and all but one of the solicitors opposed it.

[2 ] See also Australian, 9 September 1829.  For commentary, see Sydney Gazette, 10 September 1829.

[3 ]The Australian, 7 October 1829, published this and went on to publish other rules which the Supreme Court proposed to introduce at the same time.  They were to establish separate offices of the Registrar, the Master and the Chief Clerk of the Supreme Court.  The Registrar was to take charge of common law and ecclesiastical matters, and the Master of matters in equity plus costs and negotiable instruments.

Showing that it was no longer owned by the barristers Wentworth and Wardell, the Australian then commented on the separation of the profession as follows:

"To us one most forcible objection has occurred.  It will be found in the second of the above paragraphs, which proposes that no other persons shall be admitted  to practice as BARRISTERS, unless such persons shall have been duly admitted as ADVOCATES or BARRISTERS in some one or other of the King's Courts in GREAT BRITAIN or IRELAND.  We find it difficult to assign any feasible reason for a stipulation so unnecessary, so unexpedient, we may add, so dangerous as this.  We have examples sufficient in the British West Indies, and other foreign settlements of the influence which similar restrictions have not failed to produce, in debaring the bar of all such Colonial Courts.  We have proofs that the best method of attaining, and keeping a talented, respectable, and honest bar, is to leave the forensic arena open entirely to competition.  When limited altogether to Barristers of the United Kingdom, the whole practise can scarcely fail in a little time, and in a distant Colony circumstanced as this, to degenerate into the hands of a few, to whose sole discretion, however clever, and independent, and honorable, it is not desirable for the properties and liberties of the community.  It is possible in such case, that the same power which the Bar keeps in a tolerably wholesome check at present, would find ample room for corrupting a majority, if not the entire of the few Barristers, who would have the privilege of pleading, and whose self-interest would best be answered by siding with the House, and not with the People.  Besides, if the Colony be considered capable of qualifying Attornies for admission to practice in the Supreme Court, we can discover no good reason why it should not be equally capable of educating Barristers.  This regulation we hope to find modified"

The Australian admitted on 9 October 1829, that its typographers had made the most ludicrous mistakes in setting the rules in the issue of 7 October.

These rules were formally promulgated on 30 September 1829: Sydney Gazette, 1 October 1829.  (J.S. Dowling, Reminiscences of a Colonial Judge, Federation Press, Sydney, 1996, p. 21, was apparently wrong to suggest that they were dated 5 September 1829, which was the date on which the judges announced their decision.)  They were republished in the first edition of the Sydney Herald, 18 April 1831.

According to the Atlas, 26 September 1846, Forbes C.J. came to regret this decision.  It claimed that "a very few weeks before his death, Sir Francis Forbes told one of the gentlemen whose interests it prejudicially affected, that he never regretted any act of his life more than his assenting to this most injudicious rule of Court".  In fact the issue was not referred to London until February 1831, and approval was not given to division of the profession until 1834: C.H. Currey, Sir Francis Forbes: the First Chief Justice of New South Wales, Angus and Robertson, Sydney, 1968, ch. 44.

[4 ] The rules were reprinted by the Sydney Herald, 8 April 1831.

 

Published by the Division of Law, Macquarie University