Skip to Content

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

In re Grace [1835] NSWSupC 13

barrister's fees, not recoverable - discipline of attorneys

Supreme Court of New South Wales

Dowling J., 21 February 1835

Source: Sydney Herald, 23 February 1835[ 1]

His Honor Mr. Justice Dowling, stated to the Court, that he had received a petition from a prisoner then on board the hulk, convicted of Cattle stealing, praying that the sum of £4 15s. which had been paid to a professional gentleman to fee Counsel on his trial, should be returned, no Counsel having appeared for him.  The petition had been referred to the gentleman alluded to, who had furnished an explanation to the Court, which had met the full consideration of the Judges, who were of opinion that the transaction, to say the least of it, was highly discreditable.  The explanation alleged, that the sum applied for had been used as incidental expenses in making arrangements for the trial, and not intended to be applied as a fee to Counsel.  A bill of costs was appended to this written explanation, but the Court did not consider itself called upon to take it into consideration.  His Honor Mr. Justice Dowling, was of opinion that enough had been given by the unfortunate prisoner to admit of a small fee to Counsel, after paying the attorney a reasonable remuneration for his services.  The Court observed, that although the application was not presented in that form which called for the Court to look at the matter in a criminal point of view, yet they could not forbear expressing their sense of the highly discreditable nature of the transaction.

Mr. Nichols arose and submitted, that the loose manner in which his Honor had stated the transaction to the Court, involved the professional character of every gentleman connected with it.  His Honor had referred to an attorney, but did not say to whom.

His Honor Mr. Justice Dowling - The omission is quite unintentional, I can have no hesitation in stating the name of the gentleman alluded to.

Mr. Grace hereupon rose, and begged the Court would hear him a few words; he submitted that the sum which he had received was not on account of the services of Counsel; and he could perhaps not adduce stronger proof of that fact than the admission of the prisoner at the time of trial, namely, ``that he had no Counsel," when asked by his Honor the Judge; thus proving the consciousness of the prisoner himself, that he was not entitled to the services of Counsel; in fact the sum itself was quite insufficient to fee Counsel he stated that on a former occasion he had attended on a barrister (Mr. Therry) with a brief, but that gentleman refused to go into Court with a fee of £5.

His Honor Mr. Justice Burton. - I apprehend it must be known that a Barrister cannot refuse to accept a brief on the score of fees, unless he be retained by the other side.

Mr. Grace rose again to offer further observations, when he was told by the Court, that the case having been disposed of, the Court would dispense with any further observation from Mr. Grace.

Mr. Justice Dowling. - In persisting, Mr. Grace, in pressing your observations upon the Court, if you wish to call forth my individual sentiments on the subject, I feel myself bound to say as a man of honor, and as a Judge, that a more disgraceful proceeding never was witnessed in a Court of Justice.

Mr. Grace then sat down.



[1 ] See also Australian, 24 February 1835; and Sydney Gazette, 24 February 1835 (noting that the prisoner was William Horton).

Published by the Division of Law, Macquarie University