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

In re Rowe [1835] NSWSupC 10

legal practitioners, division of profession - legal practitioners, admission to practice - Rules of the Supreme Court, attorneys' opposition to

Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 16 February 1835

Source: Australian, 24 February 1835[1 ]

PROCEEDINGS

IN THE

SUPREME COURT,

 

On the Subject of the Division of the Bar,

 

(BEFORE THE THREE JUDGES,)

IN BANCO.

 

Mr. Therry, on behalf of Mr. Rowe, moved that he be permitted to practice as hitherto as a Barrister of the Supreme Court.  The motion was grounded on the affidavit of the applicant and the affidavits of Mr. Francis Stephen and Mr. G. L. Poignand, in support of it.  These affidavits set forth, that when the discussion took place in September, 1829, on the division of the Bar, Mr. Rowe in open Court made a bona fide selection of the side of the profession to which he intended to belong.  The Judges on that occasion nodded assent to his intimation, on the faith of which he had since acted by relinquishing practise as an attorney.  The affidavit of Mr. Stephen stated what was well known to be an undoubted fact, that Mr. Rowe had more extensive business in the Criminal Court than any individual who had ever appeared at the bar of New South Wales - and it would be a great hardship to deprive him of that business, and of the right of moving in that department of the profession in which he had attained such eminence and distinction.  He was at a loss to know the grounds on which this right was about to be withheld from Mr. Rowe, after he had made his choice in the manner that was required of him.  Much was said on the point of emolument in the former discussion on the subject.  The right to be a Barrister or an Attorney, was determined by the roll on which the name of the practitioner appeared.  Now the rule promulgated on the subject of the division of the Bar, was silent on the point of emolument.  The confirmation of that rule from home was silent also on that point, and it was now too late to introduce the mere form of enrolment as a necessary test & indispensible [sic] qualification to influence the decision of the Court in so momentous a matter.  Besides the fact being that the party whose name was enrolled was not required at any time to enrol it himself, but that it was the mere act of the Court without his intervention, it was the more unreasonable to bind him by a proceeding to which he had no way assented. - If it were said that Mr. Rowe had acted as an Attorney since he had made his election - the same might be said of almost all the members of the profession.  In truth, hitherto the whole body of the profession, Barristers and Attornies, were only known and recognised as one body of practitioners - and if the mere fact of acting as an Attorney disqualified one practitioner from being a Barrister, a fortiori, it disqualified another, and if the rule were to be strictly enforced, it would well nigh go to the extent of leaving the bar of New South Wales without a Barrister for Barristers and Attornies acted as hitherto indiscriminately in the various departments of both branches of the profession.  Besides, Mr. Rowe's claim resting on the fact of his having made his election - there was no person on whom the proposed change would inflict a deeper injury.  He had quite abandoned the business of an Attorney - and it became a question of vital importance to him not to be shut out from that branch of the profession which he had chosen, and to which he had devoted himself exclusively.  Anxious as the Court may be for a judicious and amended administration of justice, though whether the proposed division was or was not an amendment he offered no opinion, yet he was sure the Court would be no less desirous to enforce its rules in such a way as that it would be desirous to avoid the infliction of private wrong or individual injustice.  On these grounds, and on the further ground that Mr. Rowe came out to this Colony under an unrepealed charter, which was the ``assurance of the realm to a man by which his estate was assured to him" - and Mr. Rowe's profession was his estate.  He felt assured the justice and reasonableness of the present motion would induce the Court to accede to it.

(Mr. Therry proceeded to urge many of the legal arguments subsequently adduced by Mr. Keith, to shew that the Court had overstepped its jurisdiction in making the rule, but as they were stated more in detail by Mr. Keith, and we are desirous to avoid repetition, we must beg the pardon of the learned Commissioner for omitting to report this portion of his address to the Court.)

While the Court were deliberating upon the application of Mr. Therry on the part of Mr. Rowe - Mr. Keith rose and stated, that having an application of a similar nature to make on his own behalf, it might be convenient to address their honors before they arrived at their decision on the prior motion --  The Court having intimated assent, Mr. Keith proceeded in an able and temperate speech of more than two hours duration to urge his right to practice in the Supreme Court of this Colony, both as a Barrister and Attorney - and in the event of this point being decided against him, that the period of election under the Rule of Court had not yet passed away, and that accordingly he was entitled to make his election--

(We cannot pretend in this or the other speeches delivered, to do more than give an intelligibleoutline of what passed an[d] was said - we report from memory - and our readers will excuse us for sparing them the infliction of a report at full length.)

Mr. Keith contended that the Court had no power to make the Rule for dividing the profession of the law - The act of 4th Geo. IV., gave to his Majesty the power by Charter of creating Court of Judicature in New South Wales, with certain powers to be in such charter pointed out - In the execution of such authority a Royal Charter was issued, under which the present Court exercised its jurisdiction, -- and among its clauses was to be found one, (Clause 10,) by which the Court was empowered to admit certain persons therein enumerated to act as well in the character of Barristers as Attornies - That act had expired, and was followed by 9 Geo. IV., which likewise invested His Majesty with the power, by charter or letters patent, of erecting Courts in New South Wales, and throughout the numerous clauses of the act, provisions were made for the jurisdictions and powers to be exercised by the said Courts, -- that is, the Courtsto be erected - To provide against the failure of justice in case of no Charter passing the Great Seal, the second clause provides that until the issue of such charter or letters patent, the Courts constituted under the former act, and charter issued pursuant thereto, should continue to exercise all the powers vested in the Court by virtue thereof, except so far as the same might be altered by this present act - Then follows the 16th Clause, which was supposed to invest the Court with the power of making the rule in question - This enacts that the said Court should have the power of making such rules and regulations as to His Majesty should seem meet, touching amongst other things the admission of Attornies, Barristers, &c. - Now what he (Mr. Keith) contended for, was, that no charter or letters patent having been issued pursuant to the last act, the Court could not exercise the powers vested in it by the old charter under the 2nd Clause --- that the 16th Clause did not give the old Court any new powers - that the similar Clause in the Charter remained unaltered by the Clause in the subsequent act, -- and admitting, for sake of argument, that if a Charter had issued under the last act, in such case the Court created by it, would have been invested with all the powers given by the 16th Clause, yet the present Court being only in existence under the old Charter, could not travel beyond the power which that Charter gave, unless explicitly empowered so to do by some clause in a later act, or a subsequent Charter - There was none such to be found, and therefore the Old Charter was not abrogated, but as regarded its tenth Clause remained in full force.

But he would contend even if the old Court acting under the powers of the only charter in existence could by any construction of words be supposed to be invested with the power expressed in the 16th clause which was evidently intended to be vested in a new Court by anew Charter, that such clause gave no power to frame the rule in question.  It related only to theadmission of Barristers, &c. - the Court had no power to remove except upon reasonable cause, and by those words, reasonable cause, it could only be in fairness construed that the legislature meant the ordinary causes which would induce the removal of a practitioner from the Court.  It never could have been intended to give a power of disbarring - the words do not express nor imply the intention of allowing the Court to make ex post facto rules and regulations.  To make rules relating to the ``admission" of practitioners cannot be extended beyond their plain import - namely to admit, -- and there are no words whatsoever which have reference to those already admitted, nor any other words referring in any way to the subject.  He, Mr. Keith, was admitted as a Barrister as well as Attorney, under a Royal Charter still in force, and it required an equal authority, and express words to deprive him of the benefit of that admission.

Mr. Keith further urged that the clause only gave the power of making such rules ``as to His Majesty should seem meet," which words were twice repeated, and he contended that His Majesty, having already, by a Charter which stood unrepealed, expressed His Royal pleasure that the profession of Barristers and Attornies should be amalgamated in His Courts of this Colony, the Court had exceeded its authority by acting contrary to His Majesty's pleasure.  The late allowance of the rule did not alter the question, for the Charter under the Great Seal could not be abrogated by the letter of the Secretary of State, or by a less authority than that which created it.

(The Chief Justice here observed that the Clause in the Act was incorrectly printed, or at any rate that there was a mistake in it, -- the words ``as to His Majesty," should either have been ``as to the said Court" or expunged altogether.  This was evident upon the reading of it.)

Mr. Keith said he would take the Act as he found it.  It appeared to him that the words were quite capable of a reasonable interpretation, and directly limited the Court to the not making any rules of which they possessed evidence that His Majesty disapproved.  The subsequent words of ``disallowance of His Majesty" were quite consistent with this interpretation.

Mr. Keith now proceeded to observe that the power of the Judges to make rules was further limited by the words ``adapted to the circumstances and condition of the Colony," upon which he would offer a few remarks.

(After  a few moments deliberation, the Chief Justice stated, that as this part of the question had been argued upon the occasion when the rule was first proposed, and every member of the profession beard upon it, it was not open to Mr. Keith to moot it again.  The Court had given judgment upon it.)

Mr. Keith said he would refrain from urging any thing upon that head, but would draw their Honor's attention to the other branch of his argument, viz:-- that if the rule were perfectly legal, the time for making his election had not gone by, inasmuch as it was subject to His Majesty's allowance, which allowance was not legally made known.  The only notice given to the public or the profession of His Majesty's allowance, was by a letter of the Colonial Secretary addressed to the Judges stating, that the Governor had received a Despatch notifying His Majesty's allowance of the rule.  He would contend that this was not sufficient - it was the practice of the Government to make known all official communications by means of the Official Gazette, by a proclamation, or government order, or notice.  The public had right to expect this in order to guard against anything surreptitious.  He contended that His Majesty's pleasure could only be made known legally by publication at least, if not by proclamation in the Official vehicle for conveying notifications to the public, and until that was done, the rule was a dead letter.  Why should it not be done? - it had been believed that the Despatch from home contained words which limited the allowance by His Majesty.   The Government Gazette is recognised by law, and surely in a matter so affecting the public and the profession, they had a right to expect all the usual formalities would be complied with.

While upon that branch of the subject, he felt that the profession had a right to complain of the time and manner of making known the receipt of the letter from the Colonial Secretary - It had been rumoured, and the affidavit he would read set forth  that fact, that the rule was brought into operation in that way, in order to exclude himself and some other members of the profession from electing to become Barristers, who it was known had intended to chuse [sic] that profession - But whether so or not, it had that effect, and he felt that it was an act of injustice.  He would allude to the circumstance that the Solicitor General had moved for the admission of Mr. Ryan Brennan, on the very day, and after the reading of the letter, and then stated, that his Client would have the opportunity of claiming his right of election under the rule - this shewed the opinion of some of the bar themselves, as to the meaning of the rule, and he himself was never so much surprised in his life, as at the subsequent decision of the Court on the same day, that the moment of election had passed by - As the Court however had the same power of altering the rule as of making it, he trusted that if their Honors should still be of opinion that it took effect from the moment when the Colonial Secretary's letter was read, they would so modify or alter it, as to prevent its pressing so ruinously, (as it necessarily would) upon two or three individuals -

His Honor the Chief Justice took occasion to observe, that with respect to the receipt of the letter, it was delivered at his house on the Thursday, not opened until the following day, when it was by him laid before the other Judges, and on the Saturday Morning was read in Court.  A good deal had been said about this and he therefore now stated, that he had no previous intimation of the letter, had never seen the Despatch, nor had he the least knowledge of its contents - He merely acted upon an Official Letter received in common course, in the ordinary way.

Mr. Keith proceeded by stating, that it was with great pain he now felt called upon to urge another topic to the Court, because it was one of a personal nature, and in which he was obliged on oath to present facts and detail conversations with His Honor the Chief Justice, having a very material influence upon his conduct in reference to this rule, and of which that learned Judge had no recollection.  He had written to his Honor the Chief Justice, and Mr. Justice Dowling, and had received replies which he felt it was but fair to append to his affidavit, and he repeated his extreme regret at being compelled to refer to circumstances of such a nature, and to state on oath that of which the learned Judge had no remembrance.

Mr. Keith then read an affidavit at length with copies of his letter to the Chief Justice and Mr. Justice Dowling and their replies annexed, to the following effect:-- ``The affidavit set forth that a certain cause of Bucknell v. Moran was tried in the latter end of 1830, before Mr. Dowling, wherein His Honor, by his conduct on the trial prevented Mr. Keith from doing justice to his client, in consequence of which, he moved for a new trial, and among other grounds for such application stated that he had been intimated by the Judge who tried the cause.  Upon the matter coming on for hearing, the Chief Justice sent for Mr. Keith into the Judges room, and in the presence of the late Judge Stephen, asked if the matter could not be decided without pressing that point in the notice, alleging his regret that any circumstance should tend to disturb the good feeling which had prevailed between the Bench and the Bar.  Mr. Keith expressed his willingness to accede to any mode which could be suggested by which the necessity of referring to the conduct of the Judge at the trial could be avoided, but stated that an impression prevailed out of doors that the Attornies of the Court were not entitled to the same rights as those possessed by Barristers, and Mr. Justice Dowling having alluded to him on the trial as an officer of the Court, he felt it to be his duty to call upon the Court for a declaration of its opinion as to the respective privileges of Barrister and Attorney, acting under the Charter as such.  The Chief Justice suggested that this could be done without reference to what passed on the trial, and requested Mr. Keith to waive the argument upon that head, to which he assented.  He accordingly abandoned that ground of his application.  It was in reference to this conversation that he stated to the Chief Justice his intention to make his election, under the rule of Court then in abeyance, to become a Barrister; and the affidavit alleged that upon this as on a subsequent occasion, the Chief Justice stated his opinion that the rule of Court, would not meet the approbation of His Majesty - that the Judges had altered their opinion as to its policy - and requested or advised Mr. Keith not to make any application to the Court upon the subject, and that full opportunity hereafter would be allowed to every member of the profession to make his election.  That by these conversation he was deterred from doing so - By the letter to the Chief Justice and his reply it appeared that Mr. Keith had called upon His Honor for an acknowledgement [sic] of these conversations; and by His Honors reply, it appeared that he had no memory of them, and a reference to facts and dates was made to show, that if they had occurred they could not have been in any way intended to deter Mr. Keith from selecting his profession under the rule - The letter of His Honor Judge Dowling was merely in regard to the trial of Backwell [sic] v. Moran, and was not material to the point now urged by Mr. Keith.

(This we believe to be the main allegations in the affidavit - in the course of its reading, a great deal of discussion took place, especially with reference to the motion of Dr. Wardell in January 1831, respecting the transgression of the rule of Court to England, and the subsequent publication in the Gazette in March, of a Government Notice that the rule had been transmitted - In the course of this discussion it was ascertained (remarkably enough) that the rule was not made by the Court, but by Francis Forbes, Chief Justice, under the authority of an order in Council, dated Oct. 19, 1834, issued in pursuance of a power given by the Old Charter - That order in Council required all rules of Court to be transmitted home by the Governor - directed that their transmission should be notified by proclamation or government notice, upon the p0ublication of which only, the rules were to take effect - The Chief Justice stated, that this public notice occurred by mistake - that before this period (march 1831,) it had been necessary to publish the transmission, but at that time it was not - However it had occurred, it was a mere act of super-erogation - but at any rate, it had the effect of giving additional notice to the public of the rule of Court.)

Mr. Keith in conclusion, briefly, but in forcible language re-capitulated the various arguments he had urged, declaring solemnly before God, that but for the impression on his mind (arising from his conversations with the Chief Justice) that he should have an opportunity of electing under the rule of Court to which profession he should adhere, he should long since have applied to be enrolled amongst the Barristers -

(We have thus given a very faint report of Mr. Keith's address - attending more to the matter than the manner - we believe it to be tolerably faithful in this respect, although we have omitted many remarks which fell from the Court in the course of its delivery - these for the most part were calculated to elucidate some point, or lead to some conclusion - One only from His Honor Mr. Burton, struck the hearers as uncalled for, and tending merely to embarrass Mr. Keith - This was a question, by what right he had been admitted as a practitioner or where he had served his clerkship - Mr. Keith very properly replied, he had been admitted under the same Royal Charter by which the Court was constituted - When all is said and done, the prescriptive right of Judges of Court to admit Barristers, and the monopoly of law by them and Attornies to the exclusion of persons equally well qualified, is contrary to the spirit of the times we live in, and is in short a mere farce.)

Mr. Williams and Mr. Poole then severally addressed the Court, urging the illegality of the rule upon various grounds, but as their arguments were for the most part comprised in that of Mr. Keith, which we have given at some length, we must stand excused to these gentlemen for this brief notice of their speeches.

The Court having asked if any other gentleman proposed to offer any remarks upon the subject, Mr. F. Stephen stated, that he was desirous of doing so, in order to place himself in a situation to take advantage of his conduct, if it should be expedient hereafter, either in this or another country, by protesting against the Rule of Court, lest silence should be construed into acquiescence.  He should not advert to the many topics urged respecting the right of election, for if that were conceded, it would make no alteration in his choice of a profession, -- but as every thing was refused, he should maintain his right under the Charter to practice both as Barrister and Attorney.  The law of the case, that is, the power of the Judges to make the Rule, seemed to him to lie in a very narrow compass.  An Act of Parliament gave to His Majesty a power to create, and frame certain Rules for their guidance - acting under the scope of this authority he had by Charter, given the privilege to certain individuals to practice both as Barristers and Attornies.  He contended, this conferred a right, which might be considered a species of vested interest.  There was nothing unreasonable in this, nothing unknown in the history of other Colonies - it had indeed occurred in this, as there were gentlemen in the Colony who had emigrated under the express understanding of being permitted to be advocates and attornies both.  It was, in short, a privilege conferred upon them in consideration of their emigration at a time when the Colony was young, and incapable of supporting a division in the profession.  A subsequent Act passed, -- and supposing (which he did not admit), that the same power was therein given to the Judges, acting under the old Charter, which the King previously possessed, where was the power he would ask, to destroy the privilege so created?   A power to ``admit" is not a power to disqualify, and once admitted, he contended that the practioner [sic] was entitled to all the rights which he originally obtained by his admission, until taken away by statute, or something of equal force.

He looked upon the right conferred as a chartered right.  Where were the words by which that right was abrogated?  Every one knows that what are called the vested interests of persons to their fees of office were most tenderly considered by the British Parliament, and that they had been the ostensible cause to the great and successful resistance of the reforms in the local law Courts.  Was a man's income derived from his profession less sacred than that obtained from fees of office?  It never could have been the intention of the legislature to confer the power by reference and inuendo [sic], to deprive one half the members of the profession here of their income.  Yet this was the only basis upon which the present rule was founded.  Surely if such had been the view of the legislature which passed the passed the Act, something more explicit than any words which it contained, would have been used.  Ex post facto laws were always odious, and not justified but in circumstances of great emergency.

The Court had debarred him the right of entering upon the argument arising from the impolicy of the rule, or hew could have shewn how injuriously it would operate upon public and private interests.  He would rest, therefore, his argument upon what he had already urged, and which, to his comprehension, was plain and incontestable; namely, that the tenth clause of the old charter was still in force, or if not, that the sixteenth section of the Act of Parliament conveyed no such authority as that now exercised by the Court.

(The foregoing, notwithstanding its length, is after all but a lame account, but we are still compelled to postpone giving the judgment delivered till Friday; and in the mean time, as we feel that the subject is one wherein their Honors would wish to be accurately reported, we have made application to them for the judgments delivered by them - if refused, we must trust to memory. - Ed.[2 ]

 

Forbes C.J., Dowling and Burton JJ, 16 February 1835

Source: Sydney Gazette, 17 February 1835

 

Mr. Therry then rose and addressed the Court :  ``May it please your Honors, I have a motion to make on behalf of my learned friend Mr. Rowe, why he should not practise as a Barrister at Law in this Court; I have in my hand 3 affidavits, (viz.) the affidavit of Mr. Poignand and attorney of this Court, and also the affidavit of Mr. Francis Stephen an attorney of this Court, and also the affidavit of Mr. Rowe himself.  The affidavit of Mr. Poignand states that a meeting of the profession was called by the Judges of this Honorable Court in the 2d. Term of June 1829, relative to the division of the Bar; nearly all or at least the majority of the profession assembled, and the choice of election was referred to them as to whether they would practise as barristers or attornies.  Mr. Rowe came in some time after this discussion took place, and was told by one of the Honorable Judges of what had taken place, when Mr. Rowe immediately got up and addressed the court, in the course of which address he distinctly stated to the Court that his election was already made, and he would practise as a barrister, to which the court bowed assent, as this deponent verily believes; and deponent further saith that he considers Mr. Rowe is fairly and justly entitled to practice as a barrister in this Honorable Court.

I here, your Honors, again beg leave to read to the Court the affidavit of Mr. Francis Stephen which not only supports the affidavit of Mr. Poignand to the full extent, but adduces other grounds which the more entitles Mr. Rowe to practice as a barrister, inasmuch as this affidavit states that a certain paper was once handed to Mr. Rowe with the signatures of several professional gentlemen attached to it, the purport of which was that there should be no division of the bar, but that a counsel might act as attorney, and an attorney as counsel, as circumstances or occasion might require.  Mr. Rowe refused to sign this, at the same time signifying his noncompliance with the system, and also stating that he had already made his election which was that of a barrister.  I also have in my hand the affidavit of Mr. Rowe himself which supports and is supported by the other two.  I also beg leave to state to your Honors that since that period Mr. Rowe has been acting as barrister in every sense of the word, and refusing to practise as an attorney; that Mr. Rowe has also been retained by several public institutions in this colony to act as counsel; and that under the very peculiar circumstances of this gentleman's case I would most respectfully submit that for the future Mr. Rowe be permitted to stand by his own voluntary election and practice in this Court as a barrister only.  After the case had been considered by their Honors for half an hour, Mr. Keith rose, and said, May it please your Honors, I have a motion to make of the same nature as the preceding one by Mr. Therry, on the part of my learned friend Mr. Rowe, and perhaps it will be more convenient for your Honors to hear the arguments, adduced, and give judgment on both at the same time; and, in the first place, I beg to state, that it is not in the power of this Court to make such a rule, nor to enforce the same when published, as that now under discussion.  Mr. Keith then referred to an Act 4th Geo. IV. which he stated was in force till the year 1829, and was then repealed by a subsequent Act of 9th Geo. IV. which last mentioned Act gave the power to his Majesty of establishing other Courts in New South Wales, and appointing one or more Judges and other officers, that might be deemed requisite and necessary.  Mr. Keith then went on to say, he considered himself as much entitled to act as an Advocate as any gentleman then in Court.  He was here interrupted by Justice Burton, who asked Mr. Keith whether he ever was admitted in England as an Attorney?  to which the learned Gentleman answered in the negative.  Did you ever serve a clerkship in this Colony, again demanded his Honor? to which Mr. Keith replied, no; I was admitted under the Charter, and by being admitted under the said Charter, I consider myself entitled to practice as a Barrister in this Court; and I further aver that this Court has no power to make such a distinction without the concurrence of his Majesty.

His Honor the Chief Justice in a very lengthy speech then addressed the profession generally, entirely overruling the arguments adduced by either of the two before mentioned gentlemen, and concluded by stating that they must rest satisfied by merely practising as attornies of that Court.  Mr. Justice Dowling addressed them to the same effect, as did likewise Mr. Justice Burton.

 

Notes

[ 1] For commentary, see the editorial of the Sydney Herald, 6 April 1835.  On the division of the bar, see also In re Stephen, 1835.

The hostility of the attorneys towards the judges was apparent in their opposition to some of the Rules of the Supreme Court as well: see Australian, 3 July 1835.

[2 ] The Australian did not report the judgment as it promised.

Published by the Division of Law, Macquarie University