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

In re Wright (1831) NSW Sel Cas (Dowling) 743; [1831] NSWSupC 42

legal practitioners, admission to practice

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 25 June 1831

Source: Sydney Herald, 11 July 1831[1 ]

Saturday, June 25. - The three Judges having taken their seats, Mr. J. W. Wright observed, that a rule of Court had been served upon him, to show cause why his admission as an Attorney, &c., granted last Saturday, should not be cancelled, on the ground of irregularity, and non-compliance with the Rules of Court; Mr. W. Was surprised at such a prooceeding; on the last sitting of the Court in banco he had been duly admitted, and he was not aware that he had committed fraud or other offence, by which he could be struck off the roll; he was aware that he had not complied with the Rules of Court, relative to the admission of Attornies, but his short sojourn in the Colony would plead as an excuse; but he understood he could have insisted upon admission under the Charter; and he further understood, that among the Rules of Court, there was one by which the Court could dispense with its own rule; the whole proceeding he considered one of great hardship.

The Chief Justice replied, that without striking off the rolls, or imputing anything to Mr. Wright, he was of opinion, the admission must be cancelled.  With respect to the rule which had been referred to, it was not intended to be used by the Court as an arbitrary dispensation of its own rules; setting in motion a new body of rules, it was worse than presumption to suppose that some would not require amendment - some that would work great hardship; it was therefore reserved at the end of the rules to dispense with any rule that might work hardship, and in no one case had the Court ever dispensed with its own rules in an arbitrary manner, except in cases of hardship; and he remembered but one instance where the rule for the admission of Attornies had been dispensed with, and in that case more than the requisite time had elapsed, and the party applying would have been thrown out of practice for a term; but no such facts had been stated in this case, the Court were in fact taken by surprise, and he was of opinion the admission ought to be cancelled, without intending to convey any imputation to Mr. Wright, it was merely to cancel an order improvidently made.

While on the subject of the rule empowering the Court to dispense with their own rules, he would make a few observations on some illjudged and impertinent allusions to the subject in the Government paper, called the Sydney Gazette, in a letter under some signature; but he hoped the Court was too strong to feel such allusions, and that the allusions themselves were too impertinent to obtain credence from the public.  The writer represents a conversation with a member of the bar, in which it is alledged that the latter in formed him a new batch of rules were shortly coming out, and with which he expressed great pleasure, as it always increased the practice of the bar.  He, for one, would repudiate such an assertion as false; and he hoped that the members of that bar possessed too high principles of honor, even in jest, to avow such principles.  He had now done; but, with reference to Mr. Wright's admission, he was decidedly of opinion it must be cancelled, and Mr. W. Might then apply for admission in the prescribed form.

Mr. Justice Stephen coincided with his learned colleague.

Judge Dowling was of opinion, that if any one rule required to be strictly complied with more than another, it was this rule, as it afforded time to the public to enquire into the eligibility of the gentleman applying for admission, and consequently to the respectability of the bar.

The object of cancelling the admission, was because it had been allowed prematurely.

 

Notes

[1 ] See also Sydney Gazette, 28 June 1831; Australian, 1 July 1831, both noting that Forbes C.J. also criticised the Gazette for its impertinent allusions about the impact of new Rules of court on legal costs.

This decision was also recorded in Dowling, Select Cases, Archives Office of N.S.W., 2/3466, p. 81, with the following summary: ``Where the Court admitted an attorney under supposition that he had complied with the rule of Court which requires a Terms notice and it turned out that he had not, his admission was cancelled."

Published by the Division of Law, Macquarie University