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

Russell v. Jones [1838] NSWSupC 33

equity procedure - legal practitioners, appearing for both sides

Supreme Court of New South Wales

In banco, Dowling C.J., Burton and Willis JJ, 26 March 1838

Source: Australian, 27 March 1838[ 1]

Russell v. Jones. -- Mr Broadhurst moved for leave to amend a bill which had been filed on the equity side of the Court in this case.  Mr Justice Willis observed with much warmth, that it almost amounted to a contempt of Court to file such a bill.  Instead of counsel having signed the bill, which was indispensable in all such matters, Mr Norton the attorney had signed it.  There was also another irregularity in the proceeding, which was that the answer to the bill was signed by Mr Willoughby Dowling, who was the clerk to Mr Norton, the attorney for the other side.  Now although nothing could be alleged against the reputations of either Mr Norton or Mr Dowling, and although the suit might be as stated, an amicable one, such a practice was to say the least of it, very unseemly.  His Honor said that he knew such was the practice in some instances in England; it was one, however, which he reprobated, and which as far as he was concerned, he should never permit to be adopted.

Mr W. Dowling explained, that with respect to the bill not having been signed by counsel, that was a mere clerical error, the draft having been prepared and signed by counsel.  With regard to what had fallen from His Honor respecting his having acted as solicitor for the defendants, it was done to save expense, and he knew of no order against it.  It was true that he conducted Mr Norton a common law business, but as a solicitor of the Court, he thought himself entitled to act on his own behalf in any equity suit.  After a further conversation between the bench and the bar upon the subject, in which the Chief Justice and Mr Justice Burton expressed themselves of the same opinion as Mr Justice Willis, as to the unseemliness of the practice, the matter dropped.  The bill was then ordered to be amended.

 

Source: Sydney Gazette, 29 March 1838

 

Russell v. Jones - Mr. Broadhurst applied for leave to amend the bill which had been filed in this case.

Mr. Justice Willis said, that he had seen the bill and could not consent to its being amended, it must be removed from the files of the court not being signed by counsel.

Mr. Broadhurst said that the omission of the counsels' name, was a mere clerical error; the draft of the bill was signed by counsel and the clerk had filed the bill without putting their signatures.

Mr. Justice Willis said, there was another gross irregularity; the bill was signed by Mr. James Norton, a very respectable solicitor, and the answer was signed by Mr. W. Dowling, who is Mr. Norton's managing clerk.  Now although this was an amicable suit and he did not wish to impute blame to any one, yet it was a course he considered could not be too much reprobated.

Mr. Dowling said, that as a Solicitor of the Court, he felt himself quite authorised to act for any gentleman although he was Mr. Norton's common law clerk, and he should continue to do so until there was a rule of court on the subject.

Mr. Justice Willis said that he should always reprobate the practice of gentlemen belonging to the same office appearing for different.  Both the other Judges concurred in the opinion expressed by His Honor.

 

Notes

[ 1]See also Sydney Herald, 26 March 1838.

Published by the Division of Law, Macquarie University