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

Division of Legal Profession [1831] NSWSupC 5

legal practitioners, division of profession

Supreme Court of New South Wales

Forbes C.J. and Stephen J, 15 January 1831

Source: Australian, 21 January 1831

SATURDAY, JAN. 15. - In Banco. - Immediately after the Chief Justice and Mr. Justice Stephen had taken their seats upon the Bench, Mr. Justice Dowling being absent through indisposition.

Dr. Wardell rose and called the attention of the Court to a rule promulgated about twelve months ago, directing that the bar should be divided , as in England, subject to the approval of his Majesty.  He wished to know whether the rule had been sent home, and, if so, whether any and what answer had been received from the Secretary of State for the Colonies?

The Chief Justice said that the Court was not prepared to give any reply to the question.

Mr. Chambers said he trusted their Honors would give the Attornies another opportunity of showing cause why the rule if granted should be rescinded.[1 ]

The Attorney General spoke in favour of a division.


Forbes C.J., Stephen and Dowling JJ, 22 January 1831

Source: Sydney Gazette, 25 January 1831[2 ]

In Banco.

Shortly after the sitting of the Court this morning, Mr. Keith said, he had an application to make to their Honors, on a subject which he thought would be best brought forward in this manner.  It concerned the rights and privileges of the members of that bar, and particularly of those gentlemen who, although qualified only as attornies and solicitors, were still, under the Charter, empowered to act as barristers also.  An opinion had gone abroad, that a client who employed an attorney to conduct his case in that Court, had not so fair a chance of success as if he had employed a barrister, owing to a belief that the latter had greater rights and privileges in that court than the former; an opinion which the practice of the Court, in giving pre-audience to the barristers, had considerably tended to strengthen.  He, (Mr. Keith), therefore, called upon the Court to say, what were the rights and privileges of the members of that bar, and whether a barrister possessed any privileges over an attorney or solicitor; they being both, under the provisions of the Charter, placed on a similar footing in every respect.  He desired to know, whether, in conducting a case in that Court, he was not entitled, in every respect, to the same privileges as a barrister; and if so, he submitted that the Court ought to forego the practice it had hithereto adopted, on motion days, in calling upon barristers in the first instance, as it only served to strengthen the opinion already entertained out of doors, and which was highly injurious to the interests of the majority of the profession in this colony.

The Chief Justice. - The present application is two-fold in its object; - first, to obtain an authoritative declaration of the rights and privileges of the bar in this colony, in consequence of a certain opinion said to be entertained out of doors; and, secondly, to call upon the Court to revise its practice of giving pre-audience to those gentlemen who have been admitted as barristers in the superior Courts at home.  Upon these two points, I shall address myself in the order in which they come before the Court.  With respect to the first point, namely, the privilege which a barrister or advocate is supposed to possess in this Court, over an attorney, appearing in defence of his client, quasi barrister, I can only say, if such an opinion be really entertained, that it is founded in error.  The privilege of appearing in Court, and maintaining to the utmost of their ability the interests entrusted to them, which is enjoyed by the professors of the law, and the freedom of speech which, for these purposes they are allowed, are not so much the privileges of the advocate as of the client, and follow him whether he defends himself, or employs another to do it form him.  The opinion, therefore, which is stated to us to have gone abroad, is a very gross error, and we would invite those persons who hold it, to attend this Court, and witness the manner in which attornies and solicitors are treated by the Court, as the best way to negative it.  Having said thus much on the first point, and in the simplest terms I could, conceiving that to be the proper manner in which to treat it, I now proceed to the second point raised for our consideration, in the observations which have been addressed to us, with respect to the pre-audience given to the barristers, and which is said to countenance the error to which I have already addressed myself.  The right of pre-audience in Courts of Justice, is a right which exists in all the Courts in the mother country, and is founded in the common law of the land.  In instituting a judicial tribunal in this colony, however, it became necessary to resort to an Act of Parliament, and where the legislature speaks, common usage is silent.  Now, by the Act of the 4 Geo. 1V. c. 96, power was given to the King in Council, to regulate, by Charter, the practice of this Court, and among other matters, the admission of fit and proper persons to act as barristers, attornies, and solicitors.  In the exercise of this power a Royal Charter, under which this Court is at present constituted, was issued by His late Majesty King George the Fourth, the 10th clause of which is to this effect:-  ``And we do hereby authorise and empower the said Supreme Court of New South Wales to approve admit, and enrol such and so many persons, having been admitted barristers at law or advocates in Great Britain or Ireland, or having been admitted writers, attornies, or solicitors, in one of our Courts at Westminster, Dublin, or Edinburgh, or having been admitted as proctors in any Ecclesiastical Court in England, to act as well in the character of barristers and advocates, as of proctors, attornies and solicitors in the said Court; and which persons, so approved, admitted, and enrolled as aforesaid, shall be, and are hereby authorised to appear, and plead, and act for the suitors of the said Court, subject always to be removed by the said Court from their station therein, upon reasonable cause; and we do declare, that no other person or persons whatsoever shall be allowed to appear, and plead, or act, in the said supreme Court of New South Wales, for and on behalf of such suitors, or any of them.  Provided always, and we ordain and declare, that in case there shall not be a sufficient number of such barristers at law, advocates, writers, attornies, solicitors, and proctors, within the said colony, competent and willing to appear and act for the suitors of the said Court, then, and in that case, the said Supreme Court of New South Wales shall, and is hereby authorised to admit so many other fit and proper persons to appear and act as barristers, advocates, proctors, attornies, and solicitors, as may be necessary, according to such general rules and qualifications as the said Court shall, for that purpose, make and establish.  Provided, that the said Court shall not admit any person to act in any or either of the characters aforesaid, who hath been, by due course of law, convicted of any crime, which, according to any law now in force in England, would disqualify him from appearing and acting in any of our Courts of Record in Westmnister."  Pursuant to this provision, the Court admitted persons to practice, coming within the qualifications there pointed out; but still, it always made that distinction which is recognised by the Charter itself, and held that the term barrister meant what it meant at home, namely, a person who has been admitted a member of one of the learned societies.  The Court, therefore, in admitting persons so qualified, kept in view the words of the Charter, which acknowledges a distinction between barristers and attornies.  It mentions barristers by name, and, with the name, I apprehended, follow all the privileges which belong to it. -  In this point of view, the Court has hitherto adopted the distinction; but that distinction amounts to no more than a mere right of precedence, and confers no superiority of real privileges over the other members of the bar, as it is at present constituted, any more than a senior possesses over a junior barrister in the Courts at Westminster.  Upon these grounds, therefore, I am of opinion that we cannot be called upon to revise our practice hitherto, and call upon the whole of the members of the bar according to senority [sic] of admission I am not aware of any written law whereby any one barrister or attorney is entitled to be called on before another; the practice has no authority but in usage; and I am, therefore, of opinion, that we should, as hitherto, call upon the barristers in the first instance, and then upon the attornies and solicitors, who also practise as barrister, according tot he date of their admission.  Before I conclude, I will take this opportunity of adverting to a question put, on Saturday last, by the senior member of the bar, respecting a certain Rule of Court, whereby the profession was ordered to be divided.  I repeat, that we are not in a condition, at present, to give any answer on this subject.  Enquiry has been made of the clerk of the Court, whether the Rule alluded to was among the last set transmitted home, but he is not able to state whether it was or not.  If it has not been sent home, the error is easily explained by the alteration which has taken place in the practice the Court.  Under the Act of Parliament, no Rules of Court could be brought into operation until approved of by His Majesty; but as the Court now exercises a discretionary power in this respect, the non-transmission of this particular Rule may have originated in mistake. Should it turn out, however, that the Rule has not been forwarded to England, we can only say, that is shall be, at the earliest opportunity; accompanied by such observations from the Judges - in accordance with their original intention to that effect - as, after a mature and deliberate consideration, so important a subject, in every point of view, shall seem to them to require.

Mr. Justice Stephen and Mr. Justice Dowling, briefly expressed their accordance with the sentiments of the Chief Justice, respecting Mr. Keith's application to the Court, and observed, that they would have felt very considerable surprise at such a question being mooted, except for the reasons stated by the gentleman who brought it forward.



[1 ] See also Sydney Gazette, 18 January 1831, reporting that Chambers also said that the division would add expense to suitors, and that he understood that two leading barristers were about to return to England which would cause an inconveniently small bar.  The Attorney General said in reply that fresh admissions would replace those who left.

[2 ] See also Australian, 28 January 1831.

Published by the Division of Law, Macquarie University