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

Re Nichols [1837] NSWSupC 5

mandamus - bar, division of - Bathurst - magistrates, action against - solicitors, right of appearance - Court of Quarter Sessions

Supreme Court of New South Wales

Dowling A.C.J., and Burton J., 15 February 1837

Source: Australian, 17 February 1837[1 ]

Mr. Foster, on the part of George Robert Nichols, moved for a rule to shew cause why a writ of mandamus should not issue against the Bench of Magistrates at Bathurst, for prohibiting him from practising at the Quarter Sessions Court of that district, he being an attorney of the Supreme Court; and further, that all attorneys of the Supreme Court of New South Wales should be allowed to appear on behalf of prisoners at the Bathurst Quarter Sessions.  Mr. Foster then read the affidavit of Mr. Nichols, which stated that at the last Quarter Sessions for the district of Bathurst, at which Mr. Stewart, M. P. was presiding, he appeared on behalf of one Thomas Mack, who was charged with felony, that the Magistrates refused to hear him, and that they had him ejected from the court; that the prosecution was conducted by an attorney, and he verily believed that, in consequence of his not being allowed to defend the prisoner Mack, he was convicted.

His Honor the Chief Justice reprobated in the strongest terms the conduct of the Magistrates, and said that it was the privilege of every free subject of Great Britain to avail himself of the assistance of any legal gentleman that was within his reach.  His Honor repudiated in no very measured terms the authority that would interpose its influence to check a prisoner from setting up the best possible defence; and although there had been a division of the bar, he would always hold that where barristers were not to be obtained, attorneys should be allowed to plead for prisoners, who were entitled and had a right to avail themselves of the best legal assistance that was within their means of obtaining.

Mr. Justice Burton fully agreed with what had fallen from the Chief Justice, for it was not to be tolerated that, because barristers found it inconvenient to attend the courts of Quarter Sessions that were held in remote districts of the colony, prisoners were to be deprived of professional assistance.

The Attorney-General hoped that after what had fallen from their Honors, Mr. Nichols would not press his motion any further.

The Chief Justice then enquired of Mr. Nichols whether he made the application on behalf of himself or the profession generally.  Mr. Nichols said that it was in behalf of the profession.  His Honor then said that, perhaps, it would be as well to make it a case of his own as the object he had in view would be answered equally as well.  Mr. Nichols replied that he would leave it to His Honor's discretion; but, if the Attorney-General would take it upon himself to make the decision of their Honors known to the Bathurst Magistrates, he would not press the motion any further.



[1 ] See also Sydney Herald, 20 February, 1837; Sydney Gazette, 16 February 1837.  The Herald was attacking what it considered rapacious lawyers at this time: see Sydney Herald, 4 May 1837.

Published by the Division of Law, Macquarie University