Skip to Content

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

Ex parte Smith, in re Sheehy (1835) NSW Sel Cas (Dowling) 747; [1835] NSWSupC 50


Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 6 June 1835

Source: Sydney Herald, 8 June 1835[1 ]

In banco.

His Honor the Chief Justice, on entering the Court, enquired if Mr. Sheehy was present, when that gentlemen rose, and presented himself to the Court.  His Honor then acquainted him, that his conduct having been brought under the notice of the Court, by one of his brother Judges, it was for him to say, when he would be prepared to meet an investigation into the particulars of the charges against him.  Mr. Sheehy stated, that as the case was then before the Public, having appeared in one of the newspapers of that day, he considered it necessary to go into the matter at once.  The affidavit of Robert Smith, plaintiff in the action Smith v. Egan,[2 ] was then read, which set forth, that being in the Court of Requests on a certain occasion, he mentioned the circumstances of the slander which Mr. Egan had made use of against him, when Mr. Sheehy informed him, that it was a very good ground of action, and told him to attend at his office, and give him the necessary instructions, when he would institute the case without any charge to him; he attended accordingly for the purpose required by Mr. Sheehy.  On a subsequent occasion Mr. Sheehy met deponent, and told him that as the bar was now divided, and he could not plead as formerly, it would be necessary to have give guineas for Counsel's fee, which should be returned to him at the issue of the trial.  He also demanded and received a further sum of two guineas under the same representation.  This statement was met by the affidavits of Mr. Sheehy and his clerk, when His Honor the Chief Justice observed, that the affidavit of Smith was certainly outsworn.  The case was thereupon on the point of being dismissed, when Mr. Daniel Egan rose and said, as the conduct of Mr. Sheehy was then before the Court, he would take the opportunity to inform their Honors that, subsequent to the institution of the action, he met Mr. Sheehy, who informed him that such a case had been put into his hands, but it was of a paltry nature and would come to nothing; it was not worth attending to.  Happening to go into Mr. Norton's office on the same day, he (Mr. E.) mentioned the circumstances to Mr. Norton, who then begged to put him on his guard; the observations of Mr. Sheehy were made for the purpose of preventing his entering an appearance to the action, as judgment would then go by default, which was the object in view; if not entered on that day it would be too late, and Mr. Sheehy would have it his own way, and he then entered his appearance according.  He (Mr. E.) felt it his duty to mention the circumstance to the Court for the sake of public justice.

His Honor the Chief Justice observed that the case now assumed a more serious complexion, and as he was informed that Smith had some further facts to disclose, the Court was bound to go into a minute investigation of the charges against Mr. Sheehy on a future day.


Forbes C.J., Dowling and Burton JJ, 20 June 1835

Source: Dowling, Select Cases, Vol. 7, Archives Office of New South Wales, 2/3465[ 3]

[p.7] [1835


20th June]


[An attorney charged with taking money from a client to bring a speculative action upon an undertaking that the client shall be at no expense, and the money returned to him after the trial is over, cannot, it seems, be struck off the roll, unless he shall have been previously tried in due form of law & found guilty.]


Exparte Smith In re Myles Sheehy Gent One &c.


A suitor of the Court having applied by Petition privately to one of the Judges complaining of the conduct of one of the Attorneys of the Court, the Judge (Burton) communicated the matter to the other Judges, & they directed a rule calling upon the Attorney to answer the matters of the affidavit made by the suitor in support of his petition.  The attorney filed the affidavits of himself and his clerk in answer to the matter, and invited the fullest inquiry.  The Court not being satisfied with the way in which the matter was answered, and it being a subject of so much importance to the Character of the Attorney thought it expedient to go fully into the matter at Chambers, & examinations were taken on oath before them, of the witnesses on both sides; and now on this day,

[p.8]The Court ordered the affidavits which had been filed & the depositions taken before the Judges to be publicly read, & called upon the Solicitor General (Plunkett) who had previously appeared for the Attorney, to say why under the circumstances the Court should not deal summarily with the party.

The Solicitor General had addressed the Judges at Chambers on behalf of the Attorney & he now complained that he did not know how to deal with  case in which there were no specific charges filed & no ostensible prosecutor.  The matter had been brought before the Court at the instance of one Judge.  He relied however, upon the affidavit of the Attorney which fully denied all matters of a culpable nature which might subject him to an animadversion.  If the Attorney had been guilty of an indictable offence, he could not be [p.9] punished by striking him off the rolls, until he had been proved guilty in true form of law by a Jury of his country.

The gravamen of the matter complained of was that the Attorney had obtained a sum of money from Smith to enable him to conduct a cause in Court on an undertaking, - that he, the client, should be at no expense whatsoever and that after the trial the money should be returned, win or lose.  It was sworn that Mr Sheehy had said in a jocular manner to the attorney on the other side in the process of the cause, that it was a speculative action, & that he, Mr Sheehy would not lose by it, or words to that effect.

Before the Court proceeded to Judgment.

Burton J. said.  I must be to decline taking any part in the proceedings of the Court today.  Having been informed that the action in question was brought by Mr. Sheehy [p.10] upon an undertaking by him that the client should not be put to any expense, I considered it a grossly unprofessional act, & I thought it my duty to bring the matter before the Court.  Whatever may be my own opinion upon the case, after it has been so fully gone into, I do not wish it to influence the Judgment of my learned Brethren on the Bench.  I have performed my duty in bringing the case under their consideration, & I am sure they will deal with it in such a manner as to their deliberate judgment may seem most proper.

Forbes CJ.  I must express my entire and unequivocal sentiments of approbation of the manner in which this case has been brought before the Court by His Honor Mr Justice Burton.  The character of the Court was deeply involved in [p.11] the proceeding.  It behoves the Court at all times to exercise the utmost vigilance, in preserving pure the administration of Justice & whenever a case of this kind presents itself, it is the duty of the court, for its own honor to have such transactions sifted to the bottom.  The only difficulty I have is in dealing judicially with this case, in the form and manner in which it is presented to us. - The affidavits and depositions are contradictory, & to take any decisive step in the way of punishment, the Court ought to have some distinct finding upon a specific charge, by a tribunal more competent to decide upon facts that the Judges.  If a case can be made out against Mr. Sheehy, it should be put in such a shape, as he can announce it, confess it, or be found guilty upon, in the ordinary mode where a criminal offence is imputed. [p.12]  In the present form which the proceedings have taken, I cannot satisfactorily, to my mind, take that course, which I should have no difficulty in doing, if MrSheehy stood before us convicted of an offence, which would render him unworthy to remain any longer on the roll.

Dowling J.  I entirely concur in the propriety of the course taken by Mr. Justice Burton, and he could not do less than bring the imputed conduct of Mr. Sheehy before the Court in the manner he has done.  The only difficulty I have is in dealing summarily with the case, upon the matters sworn.  The imputed conduct of Mr Sheehy if it amounts to any thing, amounts to the crime ofmaintenance, which is a specific crime punishable in a peculiar manner pointed out by the law.  The substance of the charge against him is that [p.13] he undertook to conduct the cause ofSmith on speculation without a good ground of action, and that he should not be at any expense in any event.  In 2 RollAbr. 115. it is said to be "an offence against public justice to encourage strife and animosities by helping to be or the expense of them, & is called in law maintenance".  So in FitzhMaintenance 18. 3 Roll Abr 118 & L.Inst 564 "Attorneys may lay out their money for their clients to be repaid again, but not at their own expense, on condition of no purchase no pay, if they carry the cause or lose it":  In Hawkins PC. c.27.s.3d. it is said "It is certain that an attorney ought not to carry on a case for another at his own expense, with a promise never to expect repayment.  Such person are to be indicted as offenders against public justice and adjudged thereupon to such fine and imprisonment as shall be agreeable to the circumstances of the case." [p.14]  Now the evidence in this case is contradictory.  Whether Mr Sheehy be guilty or not guilty, is an issuable fact to be tried by a Jury, & the circumstances of his being an attorney does not disentitle him to any constitutional mode of trial, to which any other unprofessional maintainer would have a right.  I cannot therefore, judicially assent to the punishment of this gentleman by striking him off the roll, until he shall have been convicted in true form of law.  There seems to be little doubt, that the action in question was speculative, & in that point of view his conduct was highly discreditable.  Such conduct tends to fill this court with the most [?] and mischievous litigation, beside and conducing to the most unworthy petty fogging practices.  It was asserted when this case was argued, that it was notorious that speculative [p.15] actions have been frequently brought into this court, & that attorneys were to be found bringing such actions on behalf of men just liberated from Iron Gangs.  Perhaps the Judges, who are the conservators of the purity of this court, have just reason to complain that if such practices have really existed, those who were cognizant of their existence have not brought them to light.  The honor of their court is deeply compromised in the continuance of such an evil.  With respect to the present case, unless a proceeding shall be taken place the conduct of Mr Sheehy in a more tangible shape before the Court, perhaps the present notice of the case will have a salutary effect.  Nothing is intended by what now falls from the Court, to restrain any respectable Attorney from under [p.16] taking a poor man's cause at his own expense upon a real and well founded grievance, which requires the redress of a Court of Justice.  But however, no really poor man, having a good cause of action, need complain, so long as the privilege of suing informa pauperis exists.  That part of the case imputing to Mr Sheehy the impropriety of communicating with the Attorney on the other side, in the way sworn to, scarcely comes within our [?] notice by way of punishment.  We cannot punish a man for want of self respect, or a decorous discretion in communicating with the client or the attorney on the other side.  I think for the present, the court will have done enough by delivering this admonition.


Forbes C.J., Dowling and Burton JJ, 20 June 1835

Source: Australian, 26 June 1835[ 4]


Saturday, June 20. - Before the three Judges, in banco.

In re Sheehy. - On taking their seats, their Honor proceeded to hear this case.  The affidavits and examination taken before two of their Honors (the Chief Justice and Mr. Justice Burton) were read.  All the material parts of the evidence accorded with that detailed in the Monitor of the 10th June.  Some additional evidence had been taken, in some measure corroborative of the former.

The Solicitor General then addressed the Court on behalf of Mr. Sheehy, and observed, that having gone fully into the evidence before their Honors in Chambers, he feared the Court would think it tedious to go over the same ground again - he felt considerable difficulty, not having any specific charges before him, and therefore not knowing with what he had to grapple.  If Mr. Sheehy had had an ostensible prosecutor, the Judges would have called upon him to make his charges on affidavit, and the attorney, would then have been called upon to answer them in the same manner; and in all the cases where this course had been taken, and the Solicitor had answered the charge on affidavit and met the case, the Courts in England had held that to be conclusive - there was only one exception.  Now, looking at Mr. Sheehy's affidavit, he contended, that there was a complete and perfect answer given to the charge; there was nothing improbable or unreasonable in it; it was corroborated too by the affidavit of his clerk, who was the only person who could have any knowledge of the facts. - He must say; that the circumstances Mr. Sheehy was placed in, were of a very great hardship.  The Court would recollect, that Mr. Smith had a direct interest in the matter; his statement went to release him from the costs of the action, and it must therefore be looked at with suspicion.  He apprehended that, from the evidence, there were two distinct charges against Mr. Sheehy; the first, that he undertook the action on speculation, under an express promise to Smith, that win or loose he should be at no expense; and second, that in his communications with the defendant, Mr. Egan, he had endeavoured to entrap and deceive him.  (The learned gentleman here went very fully into the evidence, and commented at great length upon it.)  The Solicitor General proceeded to say, that it was very hard upon Mr. Sheehy and the Profession at large, that statements not on oath, and made too by an interested party, should be received by this Court, and with great respect for the Court, he did not think it the course the Judges usually took; it was contrary to all rule, to receive statements from interested parties - and he did think that Mr. Sheehy and the Attorney Profession in general, had great cause to complain of it - indeed it was very unusual to allow any persons but the Professional Men to address the Court.  The proper course for Smith to have taken, would have been to have petitioned the court, and have made his statement on oath, and then the court, would if there were ground for it, have instituted an enquiry.  Mr. Sheehy did not evade enquiry, he courted it, he met the matter at once - he was anxious for enquiry; the charge, if it amounted to any thing, amounted to a charge of maintenance; now, prosecutions for this crime were very unusual; indeed, many Practitioners did not know such a crime existed.  (The learned gentleman here quoted from Russell on Crimes, to show what the crime of maintenance was.)

Mr. Justice Burton. - I state broadly, that the charge against Mr. Sheehy does not amount to maintenance.

The Solicitor General proceeded, and contended that in the present case, the Court had departed from the acknowledged practice of the Courts of England, and by which this Court was always bound.  He presumed that the Court could not exercise any summary jurisdiction upon an Attorney for a mere error in judgment - in fact, for not obtaining a verdict for his client.  He admitted that trumpery actions ought always to be discountenanced by the Court, but the action of ``Smith v. Egan," was not one of that description; to say the least of it, it was of consequence to Smith, the party slandered; and the jury, the Court would remember, had retired an hour and a half to consider their verdict.  After this case had been entertained by the Court, it would not be safe for any man to undertake a cause for a client, without having a retainer, and a statement upon it, that there was no undertaking as to costs.  Such a course as this would be most humiliating to the honourable and respectable practitioner.  In looking at this case, it would, he was sure, be unnecessary for him to say, that their honors would look neither to the right nor the left, but to the facts before them.  Many actions of a trumpery nature had been brought before this Court; he recollected a circumstance of seven or eight actions having been brought for men in an ironed-gang, against a Magistrate; one of them was tried, and the verdict went against he ironed gang gentleman - it is put an end to the remaining seven; but the Court did not think it requisite in that case to call upon the Attorney to state why he had brought the action; it was not necessary to make a victim of any particular Attorney to put an end to it.  If the court exercised any power in this case, it would do that which it had never done before, and that too, upon what was not evidence; it would do it upon the affidavits of persons, who had a direct interest in what they swore, and would be contrary to the general principle guiding courts in such applications.  The court were putting themselves in the place of a jury, and deciding upon upon [sic] evidence which their honors would not allow to go to a jury.  Surely their honors would not forget that principle which they always impressed upon juries, namely, that if they had any doubt in the case, to give the benefit of the doubt to the party chargad [sic].  He (the Solicitor General) begged it to be understood, that he applauded the motives of putting down speculative actions - and he believed that the Division of the bar had given a more effectual blow to that practice, than any summary jurisdiction the court could exercise (?) the present proceeding had inflicted a most incalculable injury on Mr. Sheehy - It had injured his character in a way not to be described; and with these observations, he left the case with confidence in the hands of their Honors.

Mr. Justice Burton - I hope the court will permit me to say, at this stage of the proc[e]edings, that sitting as the judge who tried this cause, I did conceive on the trial, that the statement made by Smith, involved, very materially, Mr. Sheehy's professional character - and that if the facts then stated were true, they were highly improper, and very unfair to the honorable practitioner.  I therefore conceived I my duty to bring the matter before the court - of course, I formed my own opinion upon it - I believed it to be true, or I should not have introduced it; I therefore trust my brother judges will permit me to decline entering further into the matter, or interfering at all with their decision.

His Honor the Chief Justice then proceeded to give judgment.  He said, that after what had fallen from Mr. Justice Burton, the duty of decreeing upon the matter now before the court, devolved upon himself and Mr. Justice Dowling.  Before however, he made any remarks upon the case, he desired to express his extreme approbation of the course taken by the learned judge who tried the cause; and, if a case of a similar character should come under his notice, he should feel it his bounden duty to adopt a similar course - and he again said, that he thought the thanks of the profession at large were due to Mr. Justice Burton.  The learned judge then noticed the arguments used by the Solicitor General and read over the evidence commenting upon it; weighing the evidence in all its bearings he (the Chief Justice) was of opinion, that the balance of testimony was against the complaining party, Smith - and his opinion was, that the statement was not supported.  In the first instance, there was certainly a strong presumptive case for enquiry.  Mr. Sheehy's affidavits fully met and completely answered the charges against him.  There was no ground for considering Mr. Sheehy guilty of the charge of maintenance.  As to the charge made by Mr. Egan, that involved a case of highly unprofessional conduct on the part of Mr. Sheehy and although the court blamed Mr. Sheehy, and thought he had acted very unprofessionally in having communications of the description set out in the evidence, with the opposite party in a cause, they blamed Mr. Egan a so, in jeering Mr. Sheehy as to the nature of the action, particularly as Mr. Egan was the offending party, and ought to have apologized to Smith for what had occurred.  Looking at the case therefore, on the whole, the court were of opinion, that Mr. Sheehy's affidavit had fully answered the charges, and that he had exculpated himself from it.  The charge of maintenance was entirely disproved; at the same time, however, the court desired to express their strong disapprobation of Mr. Sheehy's conduct.  Smith had evidently been acting under a feeling that he was to pay no costs, and it was Mr. Sheehy's duty to have explained that mater more fully to him.

Mr. Justice Dowling entirely concurred in what had fallen from the Chief Justice. - Monitor.



[1 ] See also Australian, 9 June 1835; Sydney Gazette, 6 June 1835.\

On legal costs, see also Brown v. Casgrove, Dowling, Select Cases, Vol. 4, Archives Office of New South Wales, 2/3463, p. 117 (which Dowling J. noted as follows: ``After costs have been taxed & execution issued, in an action of Trespass & assault with a count for asportation of Cattle the Judge cannot certify to deprive Plf of his costs even if he might have done so at the trial"). 

See, too, Ryan v. Ryan, 1835, Dowling, Select Cases, Vol. 7, Archives Office of New South Wales, 2/3465, p. 46 (costs where the action fell within the jurisdiction of the Courts of Requests); and Thompkins v. SmithSydney Herald, 19 October 1835; Australian, 20 October 1835 (liability of executor to pay costs).

[2 ] See Smith v. Egan, 1835.

[3 ] See also Australian, 23 June 1835, commenting ``in the mean time it is some satisfaction that one Attorney has escaped being hunted down by the interested oaths of a client and witnesses desirous of avoiding the payment of costs incurred by their own folly."

[4 ] This version is included as well as that of the notebook because of the longer account of the argument made by the Solicitor General, and because of the different version of the judgment of Forbes C.J.  It also makes clear the conclusions reached on whether Sheehy had been guilty of maintenance.

See also Sydney Gazette, 23 June 1835, which noted the following ``The Chief Justice then severely reprobated the conduct of Mr. Sheehy in going about joking of his speculative actions - it was in point of fact joking about what was his own disgrace and dishonour."

Published by the Division of Law, Macquarie University