Skip to Content

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

Ex parte Plunkett, in re Kinsman (1835) NSW Sel Cas (Dowling) 746; [1835] NSWSupC 24

striking off legal practitioners - legal practitioners, discipline of - perjury

Supreme Court of New South Wales

In banco, 16 February 1835

Source: Sydney Herald, 19 February 1835[1 ]

The Solicitor General stated to the Court that he had notified his intention, on a former occasion, of moving the Court on the first day of the ensuing Term, now present, to disbar R. J. Kinsman, enrolled as a Barrister of that Court; he (the Solicitor General) had stated, on the occasion alluded to, that he had grounds for his motion, and was prepared accordingly; but having received a communication from Mr. K., requesting to be furnished with the grounds of the proposed motion, he would postpone it until Saturday next, and in the interim furnish the information required.

 

In banco, 21 February 1835

Source: Sydney Herald, 23 February 1835[ 2]

In the case of R. J. Kinsman, in which the Solicitor General notified his intention to move for a rule nisi, calling upon that gentleman to shew cause why he should not be struck off the roll of Barristers of the Court.

The Solicitor General went into the grounds of motion, disclosed in a series of affidavits, and the Court granted the rule nisi returnable on Saturday next.

 

In banco, 28 February 1835

Source: Sydney Gazette, 3 March 1835[ 3]

Ex-parte Solicitor General. - Mr. Kinsman rose to shew cause that the rule obtained in this case for a criminal information should be discharged.  He contended as there was only one affidavit to support the plaintiff's case, and that affidavit made by the applicant himself that the rule ought to be discharged, as his case was also supported by an affidavit, which in a legal point of view was equivalent to the affidavit produced on the other side; and therefore that the rule had been improvidently issued.

Mr. Plunkett said it was only a technical objection on the part of Mr. Kinsman, and therefore ought not to be attended to.

The Court stated they were of opinion that the rule should be discharged, it being only supported by one affidavit.

Mr. Kinsman then rose and in a very animated speech, addressed the Court to the following effect:-- May it please your Honors - It is well known to your Honors, or at least to one of you, that the Solicitor General in November last, in open Court, threw out insinuations against my character of the most infamous nature and pledged his word as a gentleman, a barrister, and a man of honor, that on the first day of term he should shew grounds to have me struck off the rolls, and in the interim, furnish the grounds to me.  Has he done so?  No not even to this day has he done so; he comes into court on the first day of term and makes a motion to have me struck off the rolls, without in any one respect furnishing me with the grounds upon which he rests his case.  Does this look like a man of honor - does this look like the conduct of a barrister of the highest standing in the colony?  No, I maintain that the Solicitor General has violated his honor, has forfeited his word, his pledge is unredeemed, and his conduct in my own particular case has been of the most disgraceful nature, as I shall hereafter prove.  I can actually prove to your Honors, that on Saturday last the Solicitor General condescended to go to a common public-house, the Bunch of Grapes, in Pitt-street, to see two parties and compelled, or endeavoured to compel them, to make affidavits against me by holding out threats to them; but they your Honors, well knew how unjustifiable their conduct would be, were they to do so, and at the same despised the threats of the Solicitor General by at once refusing to do so, and sending me letter briefly detailing the circumstances of the case, and requesting my attendance on them, the earliest opportunity; the Solicitor General has been hurling his shafts at me in the most pitiless manner has been endeavouring to crush me, has prevented me from earning my bread, and obtaining employment as a barrister to the extent I otherwise should have done, but your Honors and gentlemen of the bar, I contemn him and his power, feeling conscious that I have never demeaned myself, otherwise than as a man and a gentleman, and I have resolved, from the respect I owe the profession; until I am absolved from the charges now preferred against me, never to resume my gown.

See your Honors, in what a cautious manner the Solicitor-General has worded his affidavit (viz), and this deponent has heard and believes that the said R. J. Kinsman has committed forgery - you see gentlemen he has not stated that I have done so; I wish he had, as it would then give me an opportunity of indicting that gentlemen on a charge of perjury.  Throughout his affidavit, in every deposition, the commencing or concluding words are as ``this deponent has heard and believes"; I sincerely hope and trust that your Honors will send to the Chief Justice of Hobart Town, and require of him what he knows as to the trial of Loane vs. Kinsman.  With your Honors permission, I will read a copy of an affidavit made by myself, which in the strongest and most concise terms, denies every charge made by the Solicitor General, (affidavit read).  Gentlemen in the trial alluded to, I was fairly and honorably acquitted, although the Solicitor-General asserts that I was cleared by a technical objection, but I most solemnly aver that to be false; although, I dare say, Mr. Robert Walpole Loane, who is a particular friend of the Solicitor-General's, has whispered this intelligence in the learned gentleman's ear.  I here aver you Honors to his shame, be it known that Mr. Plunkett used every means to procure the affidavits of two different individuals, for the purpose of materially injuring me; the names of those gentlemen, are Mr. John Wood, a gentleman whose character and connections are not one tittle inferior to that of the Solicitor General, and Mr. Isaac Williams; that he went to them at a public-house in Pitt-street, where they put for the time they sojourned in Sydney and used every means in his power to induce them to make the said affidavit and even went so far as to tell Mr. Williams he was a prisoner of the crown, and he would and could compel him to do so, but Mr. Williams was not a prisoner and despised his threats and sent the following letter to me.  ``Honored Sir - I and Mr. Wood want to see you as soon as possible, the Solicitor General has been here and wants us to make affidavits against you, concerning a £50 bill.  I accordingly went to them, as soon as possible, and the conversation then passed between us as I have now detailed to your Honors.

With respect to the transaction at Hobart Town. - Your Honors must know that one time I had the misfortune to be the agent of Rowland Walpole Loane, a gentleman, not unknown to your Honors, during the time I was his agent, a little vessel called the Cape Packet was sold at Richmond, by Auctioneer Buscombe for £280.  The vessel just suited for my purpose, and I accordingly bought her for £280.  I gave a bill at three months, with my own, and Mr. R. W. Loane's name attached to it; shortly after this, Mr. Loane and I had a quarrel and I ceased to become his agent, and when the bill became due it was presented to Mr. Loane who declared the amount had been altered from £208 to £280, and thereupon instituted a criminal information against me for forgery; Mr. K. then read the report of the trial in Hobart Town, and from the rapid manner in which he read it, the evidence adduced was to the best of our judgment, such as warranted the acquittal, which Mr. K. obtained.  Mr. Kinsman then concluded by stating that he was entirely innocent of the charges preferred against him, and he felt conscious that a very few days more would clear up his character, and he should like pre-eminent above those those [sic] who wished to traduce him.

The Solicitor General, in a very neat speech, completely overthrew all Mr. Kinsman had urged and justified himself in the steps he had taken and concluded by saying, it was a duty the Court owed themselves and also a duty they owed the gentlemen practitioners of the bar, to cause an enquiry to be made into the conduct of Robert Jope Kinsman.

Mr. Kinsman said he perfectly coincided with the learned gentlemen, provided the Court would cause an investigation to be made into the conduct of the Solicitor General with reference to this case.

The Solicitor General said he had forgotten to remark one thing (viz.) what Mr. Wood, said relative to Mr. Kinsman, and if Mr. Kinsman had no objection he would now state it to the Court; Mr. K. said by all means.  Well then returned the Solicitor General, he told me you had swindled him out of £150.

Mr. Kinsman then rose and prayed for an enquiry to be instituted into his conduct.

His Honor the Chief Justice then said, If the charges against Mr. Kinsman only related to his conduct in Van Diemen's Land, considering the positive statements made by Mr. Kinsman in his affidavit they must dismiss the case; but Mr. Kinsman had himself admitted the necessity of Enquiry; that the Court were the guardians of the profession, and, that the character of a barrister should or ought to be above reproach; that strict and diligent enquiry should be made as to what had been laid before the Court, although the precise course of that enquiry had not yet been determined upon.  His Honor after some consultation, enquired of Mr. Kinsman if he had any objection to a Court of Enquiry being held on Monday, to which Mr. K. replied, he had not, provided no extra matter be brought forward.

The Solicitor General rose and objected to that, on the grounds that the character of a barrister ought to be of such a standing, as to induce him to entertain no fear of the nature of the enquiries that might be thought proper to be instituted against him, adding, at the same time, that he would, if Mr. Kinsman thought proper, furnish him with all the matter that would be enquired into, some time that evening, to which Mr. Kinsman agreed.

The Solicitor General then enquired of the Court, whether he could compel the attendance of unwilling witnesses to a Court of Enquiry, to which the Chief Justice replied that the Court had a jurisdiction to compel the attendance of witnesses to any Court it might think proper to institute.

After some deliberation their Honors decided that the Court of Enquiry should be postponed till the following Tuesday, and that the Solicitor General should furnish Mr. Kinsman with the grounds of the charges, through the medium of the Clerk of the Court, by 11 o'clock, on Monday.

The Court then issued an order that all witnesses required in this case, upon being duly subpaened, should attend.

 

Forbes C.J., Dowling and Burton JJ, 27 March 1835

Source: Dowling, Select Cases, Vol. 4, Archives Office of New South Wales, 2/3463[ 4]

[p.148]

[1835

27th March]

 

[A Barrister improvidently admitted on the roll of this Court may be struck off the roll, if it appears upon a voluntary submission to inquiry on his part before the Judges at Chambers, that he has heretofore been guilty of unworthy conduct.]

 

Exparte Jno Hubert Plunkett Esq

In re Robert Jope Kinsman Esq

Present Forbes CJ. Dowling J. & Burton J.

 

Mr Kinsman a Barrister of Westminster Hall having been admitted a Barrister of this Court, on the motion of J.H. Plunkett Esq Solicitor general under a misapprehension of his professional respectability, on a subsequent day, and after Mr Kinsman had been enrolled, preferred charges of misconduct against Mr Kinsmans prior to this admission tending to disqualify him as a Barrister.  The charges were founded on affidavits of different witnesses.  Mr Kinsman had notice of the charges, which were filed with the Chief Clark, & he was allowed to take a copy thereof together with copies of the affidavits.  On the hearing of the matter in open Court, MrKinsman expressed his readiness to [p.149] meet them, and invited the Judges to go into a full inquiry into his conduct at Chambers and declared himself ready to abide by their decision.

The Judges, in so new a case, felt  difficulty in entertaining the matter in this manner, after Mr Kinsman had been admitted on the roll of Barristers, but as Mr Kinsman invited the inquiry and expressed his readiness to submit to their decision, they would on that footing go into the case.

Accordingly the judges sat a Chambers for several successive days, and having heard witnesses on both sides on oath, touching and concerning the Charges and having heard Mr Plunkett in support of the charges and Mr Kinsman in full defence, took time to advise upon the [p.150] case, and now on this day,

Dowling senior Puisne Judge delivered the decision of the Court in the following terms:-

Certain charges having been preferred against Robert Jope Kinsman Esq for conduct derogatory to the character of a Barrister of this Court, and Mr Kinsman having himself requested inquiry into the said charges before the Judges at Chambers, the Judges after several days of anxious inquiry, and having hear and fully considered all that could be urged on the one side and on the other, have come to the painful conclusion that Mr Kinsman is a person wholly unfit to remain on the Roll of Barristers of this Court, and we do therefore order that his name be struck off the roll accordingly.

 

Notes

[1 ] For the judge's notebook account of this hearing, see Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3290, vol. 107, p. 154 (in Dowling's shorthand, however).

Kinsman defended Jenkins and Tattersdale when they were charged with the murder of Dr Wardell: R. v. Jenkins and Tattersdale, 1834.

[2 ] See also Sydney Gazette, 24 February 1835.

[ 3] See also Australian, 3 March 1835, noting the conclusion of this day's proceedings as follows: ``The Court discharged the rule, but directed that the matter should be enquired into for the satisfaction of both parties."

The Australian was on Kinsman's side and gave some of the background to the litigation in its issue of 3 March 1835.  When he came to the colony, Kinsman had been arrested five times on the same cause of action at the suit of Rowland Walpole Loane.  The local bar did nothing to help a fellow barrister in poverty, with a young family to support.

The Solicitor General, Mr Plunkett, subsequently requested that he be repaid his costs in bringing this motion, saying that he did so in the public interest.  The judges recommended that the government pay his out of pocket expenses.  McLeay to Judges, 11 June 1835, Chief Justice's Letter Book, 1824 - 1835, 4/6651, State Records of New South Wales, pp 399-400.

[4 ] See also Australian, 31 March 1835; Sydney Gazette, 31 March 1835.

Published by the Division of Law, Macquarie University