Skip to Content

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

Lord v. Cohen [1839] NSWSupC 68

legal practitioners, attorneys to appear with barristers

Supreme Court of New South Wales

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

Source: Australian, 24 September 1839[1] 

In the case of Lord v. Cohen, in which a verdict had been given by default, Mr Kerr moved, that the assessment of damages be set aside, or that the verdict be reduced to £6 14s. 10d., the amount which had been consented to by the plaintiff.  He made his application on the ground that the learned Judge who sat on the Bench, had refused to hear counsel, because no Attorney General appeared on the record, although he (Mr Kerr) had demanded to be heard, and stated that he had received his instructions from an attorney.

Mr Justice Willis said, that as the Judge who had sat in the cause, he certainly had refused to hear counsel on the ground stated by Mr Kerr, and he had done so in accordance with the established practice of the courts, which he considered very judicious.  A defendant might either appear in person or by his attorney, but the attorney must appear on the record, otherwise not only injustice might be done, but fraud might be practised on the court.  In deciding this cause as he had done, he had done so on principle, as he was determined always strictly to adhere to the established rules and practice, otherwise there could be no hope of regularity in the proceedings of the court.  If this rule was to be dispensed with, there would not be any occasion for attorneys, and they might as well be done away with altogether.

Mr Kerr said, that this was not a new case; several of a similar nature had come before the court, and he believed the Judge had never before refused to hear counsel in mitigation of damages; such had been the case of Woolley v. Bryant, in which counsel had been heard, although no appearance had been entered, nor had an attorney appeared on the record.  An attorney might have come on the day on which the case was arbitrated and verbally stated that he appeared for the defendant, and he (Mr Kerr) had come into court and stated that he appeared for the attorney.

Mr Justice Willis said, that he never before heard of a barrister entering an appearance for an attorney.

Mr Gurner explained that the rule was, for the attorney to enter an appearance in the Supreme Court office.

Mr Kerr said, that he should press his motion, and put in the affidavit of Mr Cohen, which stated, that a summons had issued from the Supreme Court for the sum of £10 19s., and the defendant considering it was a case for the Court of Requests did not take any steps to retain counsel to defend it; that counsel had attended and had been refused to be heard; that defendant was prevented from attending personally in consequence of the indispensable observance of a holy day of his church; and that the plaintiff had offered to take the sum of £6 14s. 10d., in satisfaction of the debt.

Mr Windeyer said, that in order to have the question decided, it would be as well to go into the grounds on which the motion had beee [sic] made.

Mr Justice Stephen observed, that on the point at issue, Lord Brougham in a speech in Parliament had held out a threat that he would receive a brief from any defendant without the intervention of an attorney in defiance of the rule.

Mr Justice Willis said, that if Lord Brougham had so acted, and the cause had been brought before Lord Tenterden, that Judge would not have heard him.

The Chief Justice said, that he should take a long time to consider before he refused to hear counsel instructed by a defendant, without the intervention of an Attorney.  The case, however, was a peculiar one, and great injustice might be done if the Court did not interfere.  The affidavit stated that this was a poor man and had been prevented attending to his own cause in consequence of a religious observance; and although a rule might be made for the regulation of this matter in future, the Court would not do injustice to an individual, because a simple form had been neglected.

Mr Justice Willis said, that his opinion was formed upon principle; he cared not whether the demand was for ten pounds or ten pence.  If this rule was not observed, there could be no occasion for Attorneys.  Cases had been cited by Mr Kerr, in which this rule had not been attended to; but there could be no dispute that those cases had been conducted irregularly, and might be done away with on the ground of irregularity.  These, however, were not the only cases of irregularity in the proceedings of the Court which had come under his notice, and the sooner these irregularities were put a stop to the better.

Mr Justice Stephen said, that he agreed with the Chief Justice that the application should be granted, unless, indeed, the universal practice of the Court was against it, as serious injustice might be done by refusing it.  Motion granted.



[1] See also Sydney Herald, 23 September 1839; Sydney Gazette, 24 September 1839.

Published by the Division of Law, Macquarie University