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

Ex parte Dillon [1839] NSWSupC 67

mandamus - legal profession, appearance before magistrates - criminal prosecutions, right to counsel

Supreme Court of New South Wales

Dowling C.J.,  Willis and Stephen JJ, 21 September 1839

Source: Australian, 24 September 1839[1] 


Ex parte Dillon. -- Mr Therry applied for a rule calling upon William Bell Carlyle, Esq., J. P., at Port Macquarie, to shew cause why a mandamus should not be issued compelling him to allow John Dillon, one of the Attorneys of the Supreme Court, to appear to defend prisoners brought before him in his judicial capacity.  It appeared from the affidavit of Mr Dillon, that the Magistrates at Port Macquarie had agreed to a resolution that they would not hear Mr Dillon, because it would be unfair to the other side, as there was only one Attorney at Port Macquarie, and only one side could be represented.  On the 3rd of June, one Owen Molloy, a free person, was charged with assault, when Mr. Dillon appeared to defend him, but Mr. Carlyle refused to allow him. The Port Macquarie Bench applied to the Attorney-General for his opinion, and he recommended them to allow Attorneys to appear, but they still refused.  On the authority of the case of the Magistrates sitting at Bathurst Quarter Sessions, to whom a mandamus was issued compelling them to hear Mr G. R. Nichols, Mr Therry submitted that the Court must grant the rule.

Mr Justice Willis said, that it is clear that every Court has a right to make rules for its own practice, and therefore, although he thought that Attorneys ought to be heard, and he was willing to make a suggestion to that effect, he doubted the authority of the Court to grant the mandamus.

The Chief Justice said, that the Supreme Court has paramount authority over the inferior Courts of the Colony, and although every Court has a right to make its own rules of practise, [sic] the Supreme Court will protect the liberty of the subject, and he thought that the rule should be issued.  Mr Justice Stephen was of the same opinion.  Rule granted, returnable 12th October.



[1] See also Sydney Herald, 20 September 1839; Sydney Gazette, 24 September 1839; and see Ex parte Nichols, 1839.

Published by the Division of Law, Macquarie University