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

In re Stephen (1828) NSW Sel Cas (Dowling) 733; [1829] NSWSupC 2

legal practitioners, admission

Supreme Court of New South Wales

Dowling J., January 1829[1 ]

Source: Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462

[p. 119] [A clerk in the Supreme Court Office cannot be admitted as a practitioner of the Court until he vacate his situation although otherwise qualified][2 ]

In re Francis Stephen

Baxter A.G & Wentworth presented a petition on behalf of Mr F. Stephen praying to be admitted to practice as an Attorney of the Supreme Court.  The petitioner stated that in 1818 he commenced a course of study for the profession of the law that in 1820 he became clerk to his Father then Solicitor General [p. 120] of the Island of St Christopher that in 1822 he entered himself a student of the Honorable Society of Lincoln's Inn; that by the practice of the Courts of the West Indies he would be now entitled to be admitted to practice as a Barrister of those Courts;  That he had never since 1818 given up the intention of practising of the law; that on the contrary he had since diligently resumed his studies with that view, and had been in no degree employed in any situation incompatible with his professional studies.  He then pointed out the following scale to shew the increase of business in the Supreme Court:-

1827
1st Term
171. Causes.40 appearances by Attorney

2nd Term
174.53

3rd Term
172.42

4 Term
216.51

[p. 121]

1828

1st Term
336.18

2nd Term
29855

3rd Term
38388

4th Term
393100

So that in two years the business of the Court had doubled.  In several populous districts there were 110 resident attornies.  On the 1st August 1827 there were 26 persons of the Roll of Attornies of this Court, and of those only 12 were now practising, the rest being either Absentees or given up practice.

The Court inquired whether Mr F. Stephen did not now hold a situation in the Supreme Court Office.

Mr Stephen answered that it was Mr Francis Stephen's intention to resign that situation.

The Court said that until they had formal notice of Mr Stephen's having resigned his situation the [p. 122] Court could not admit him, to practice as an Attorney.

Dowling J. said this case was different from that of Mr John Raine (Note Mr Raine was punished by a fine of 20£ for a contempt in altering the process of the Court, on 12th July 1828 and since then had been indicted with others for aiding in the escape of a Convict named Doran before Forbes CJ in December 1828, but acquitted) who applied on the 6 Sept 1828 for there no case of necessity had been made out in the first place and in the second Mr Raine had only served 3 years of his articles, and had for a series of years turned his attention to other pursuits.

Mr Stephen's admission suspended until he is sui juris.

 

Notes

[1 ] From its position in the notebook, it is likely that this hearing was held in January 1829.

[2 ] See also Ex parte Plaistow, Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462.  The full text of the record of the case is:

"[p. 203] [An articled clerk who had served three years to an Attorney in England allowed to serve the remainder of his time with an Attorney of this Court, with a view to his admission hereafter.]

"Saturday 27th June 1829

"Exparte Robert Plaistow

"Unwin moved on behalf of Mr Robert Plaistow that he might be permitted to serve the remainder of his Articles of clerkship in this Colony, with a view to being admitted an Attorney of this Court.  He stated that Gentleman had been regularly articled to an Attorney of the mother country for five years, and had served three years and was desirous now of serving his remaining two years with an Attorney of this Colony.  The Court saw no objection to this.  Perhaps it would be desirable in general that persons articled in this country, or at home should serve part of their time on both countries with a view to qualify them for practice in this Country.

"Leave was therefore granted."

 

Published by the Division of Law, Macquarie University