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

Kruger v. Newby [1839] NSWSupC 79

attorneys, discipline of - legal practitioners, discipline

Supreme Court of New South Wales

Dowling C.J., Willis and Stephen JJ, 31 October 1839

Source: Sydney Gazette, 2 November 1839[1] 

Kruger v. Newby -- An application was made this case, by Mr. Foster, on behalf of Mr. E. D. O'Reilly, the plaintiff's Attorney, to compel Mr. Rogers, one of the Attorneys of the defendant, to pay the amount of debt and costs of the action out of his own pocket. The application was supported by an affidavit of Yarnton, Mr. O'Reilly's clerk who swore that Mr. O'Reilly had been misled by the representations of Mr. Rogers.

The application was opposed by Mr. Windeyer who read the affidavit of Mr. Rogers, which was to great length. It appeared from this affidavit that about eighteen months since, the deponent proposed an arrangement with Mr. O'Reilly respecting the defendant's bail, in order to save the expense of justifying. The conversation occurred between Mr. Rogers and Mr. O'Reilly, and Yarnton was [?] present; no steps of any importance appeared to have been taken in the matter, until Mr. Rogers was served with a notice signed by Mr. O'Reilly stating that an application would be made to the Court to compel him to pay the expenses himself. Mr Windeyer strongly censured the affidavit of Yarnton, and said that if there had been a Law Society in this Colony, that affidavit would not only be recorded by the Court, but would be brought under the notice of the Court when Yarnton should apply to be admitted an officer of that Court. The affidavit he said swore to facts of which the defendant could have no knowledge; it swore to the facts connected with the conversation which had taken place between Mr. Rogers and Mr. O'Reilly and at which it was sworn in the affidavit of Mr. Rogers, Yarnton was not present. As there was no Law Society, however, to watch the conduct of the members of the profession, it became the duty of every one to bring under the notice of the Court irregularities in its members, but what was everybody's duty was nobody's duty, although he must say that the Court itself had invariably, whenever the misconduct of any of its members became officially known to them, swept them off.

Mr. Justice Willis said, that without referring to the conduct of the parties in this case, he should merely observe that if A. an attorney had an article clerk B, who was guilty of gross proceedings he should discharge him, because A. is answerable for the tools with which he carries on his business. He further added that it might be that what was sworn in the affidavit of Mr. Yarnton was the truth, but he was convinced it was not the whole truth, and he thought that a person was as much bound in making an affidavit to state whole truth -- to state every fact connected with the case which required to be made known as a witness in the box who was sworn to tell the truth and the whole truth. He should have liked to have seen Mr. O'Reilly's affidavit on the subject instead of Yarnton's, for how was it possible Yarnton could fathom his (O'Reilly's) mind.

The Chief Justice in giving judgment said, that assuming that the facts were as represented in the application, the matter had not been brought forward in a fair and proper way. Mr. Rogers had been treated by this application as if his conduct had been dirty and shabby, while from what appeared before the Court it was fair, open, honorable, manly, candid and professional, and the Court thought that the least it could do would be to discharge the application, and direct Mr. O'Reilly to pay the costs of it out of his own pocket. Mr. Justice Stephen perfectly agreed in what had been said by the Chief Justice.



[1] See also Australian, 2 November 1839.

Published by the Division of Law, Macquarie University