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

In re Gurner and others [1840] NSWSupC 74

equity, administration of, Willis J., attitude to Forbes C.J., Willis J., attitude to equity, legal practitioners, admission to practice

Supreme Court of New South Wales

Dowling C.J. and Willis J., in Banco, 31 October 1840

Source: Sydney Herald, 2 November 1840[1]

Before the Chief Justice, and Mr. Justice Willis, in Banco.

            The Attorney General rose to move the Court that Mr. John Gurner, Senior, the Chief Clerk of the Supreme Court, be admitted to practice as an Attorney, Solicitor, and the Proctor of Her Majesty's Supreme Court of New South Wales, and in doing so said, he did it with mixed feelings of pleasure and regret. From his long acquaintance with Mr. Gurner, he participated in those feelings which all those who had the advantage of his acquaintance must have at any circumstance that was like to advance his private interests, and no one who knew Mr. Gurner could doubt of his success at that profession to which he now sought admission, and of which he must necessarily have a perfect knowledge. But when he recollected that Mr. Gurner has filled the office of Chief Clerk of the Supreme Court for upwards of twenty-four years, in a manner so honorable to himself and beneficial to the public - when he saw an officer who had served in the Supreme Court so long and with such ability, zeal, and integrity, now about to separate from it, he regarded his retirement as a public low. The affidavit on which he moved was an exceedingly modest one; it simply stated that Mr. Gurner was appointed by Her Majesty's Secretary of State as Chief Clerk in the year 1816, and from that time to the present he has committed no act to disentitle him to be admitted an Attorney of the Court. Their Honors were so well aware of his long and honorable career as an officer of the Supreme Court, that he would without further preface move Mr. Gurner's admission to the privileges of an Attorney, Solicitor, and Proctor.

The Chief Justice said:- We have sincere pleasure in admitting John Gurner, Esq., on the Roll, as an attorney, solicitor, and proctor of this honorable Court. It is scarcely necessary for the Judges to hear testimony to his merits. The public, before whom he has been for the last twenty-four years, can appreciate how well he deserves advancement both by honorable distinction and worldly prosperity. I cannot however, forbear marking this occasion, by emphatically recognizing his just claim to judicial approbation. His character was made known to me in England by the learned judge who had presided for many years in the King's Bench of the Colony. I speak of Mr. Barron Field whose opinion of Mr. Gurner was in the highest degree gratifying. In 1823 his services were transferred to the Supreme Court, and I have reason to know, that during a period of thirteen years Sir Francis Forbes, the late Chief Justice, entertained the truest respect of his talents as a public servant, and the warmest regard for him as a private gentleman. In these sentiments I have often heard the late Mr. Justice Stephen pronounce his hearty concurrence. I may venture also to add, that His Honor Mr. Justice Burton was no less sensible of his estimable qualities, public and private, and frequently so expressed himself. I cannot, however, content myself with recording the opinions of others only. Since February, 1828, the conduct of this gentleman has been necessarily under my review, and it is but mere justice to certify, that the multifarious and important duties of his office have been discharged with singular ability, uniting industry and unflinching integrity. Without the advantage of academic distinctions or professional preparation in youth, he is a rare example how much may be accomplished by patient industry, unwearied self-tuition and perseverance in the rugged path of honourable ambition. By these means he has attained a point, short indeed of his real deserts. For many years he has been a faithful servant of the public on terms infinitely below the value of his labours, and far short of what he would have received had his lot been cast in another direction. It is certainly no praise of a well paid public servant that he had acquitted himself faithfully and zealously in the literal line of his duty; but when unwearied zeal, enthusiasm, even in labours of supererogation, are obtained on terms amounting almost to parsimony, commendation is imperatively evolved from those who are capable of [line omitted] It may be truly said, that a jealous sense of integrity on the part of this gentleman has kept the avenues of justice free from stain or impurity, and through his Argus eyes, the decrees of the Court have been carried into effect in the spirit in which they have been enunciated. Although Mr. Gurner has sought the justly earned distinction of being admitted on the roll, I persuade myself that means may be found to induce a continuance of his present vocation; but should it be the misfortune of the public to lose his services, he may be assured that he carried with him the respect and esteem of those who have been so long witnesses of his meritorious claims. Let John Gurner, Esq., be admitted and sworn as an Attorney, Solicitor, and Proctor of Her Majesty's Supreme Court of New South Wales.

Mr. Justice Willis then said - I have now for three years, within a few days, sat on the bench of this Colony, and during that period almost exclusively administered that portion of the Law which appertains to the jurisdiction of this Court, as a Court of Equity. On my arrival, I found the practical proceedings a perfect chaos of irregularity; of the orders and decrees which had been made, I shall say nothing more; a different system has been established, and if there has been any beneficial reformation, much of its merit is to be ascribed to my friend Mr. Gurner, without whose indefatigable assistance any efforts on my part could not have been successful; it is but justice to Mr Gurner, to make this acknowledgement. The praise is merited, and fairly earned, and will wear well. I congratulate my friend on his admission as Attorney and may he be as prosperous in his future course, whatever it may be, as I sincerely wish.

The Attorney General said, he had similar application to make in behalf of Mr. Henry Burton Bradley, who had been appointed a Clerk of the Supreme Court in February 1834, and in January 1837 to the office of second clerk; the had actually and personally serviced in the office of the Supreme Court upwards of five years, and during the whole of that time had discharged the duties entrusted to him in a most satisfactory manner, and for the public benefit. It was unnecessary for him to state anything in commendation of Mr. Bradley, as he was a perfect gentlemen in manners, education, and aptitude for business. He had been reared under his excellent and inestimable uncle, who was now absent from the Colony. If his Honor Judge Burton had been here he would have given him such a character as would have been of service to him through life, at the same time he considered it but due to Mr. Bradley to give his humble testimony to his efficiency as an officer of the Court, and also to his conduct as a member of Society.

The Chief Justice said he had great pleasure in giving his testimony to Mr. Bradley, as he had never known a more diligent, active, and zealous young gentleman connected with any of the departments of the court.

Mr. Justice Willis stated that he had known Mr. Bradley for three years, as an officer of the court, and during that time he had almost daily opportunities of seeing the manner in which Mr. Bradley had conducted himself, and he was happy to bear testimony that he had done so in a manner highly satisfactory to all concerned. It also came within his knowledge that Mr. Bradley, during his absence on leave, had studied conveyancing under a gentleman of first rate ability in that department in the mother country, and which peculiarly qualified him for benefiting the public of New South Wales by his knowledge and experience in that department; he had also great pleasure in bearing testimony to his private worth and respectability as a member of society. Mr. Bradley's admission was then ordered by the court in the usual way.

The Attorney General then moved that Mr. William Hardy be admitted, he having produced the necessary certificates of character and qualifications, and having also given such references as left no doubt as to his respectability. The documents having been handed in, Mr. Hardy was admitted.

The Attorney General said he had a similar application to make on behalf of Mr. John McBean McIntosh who had finished his term of apprenticeship with Mr. Norton, one of the most respectable attorneys in the Colony, and Mr. McIntosh having appeared before the examiners and fully satisfied them as to his capacity and qualifications, and also furnished the necessary affidavits and other documents, he trusted there would be no objection to his admission. The Court ordered Mr. McIntosh to be admitted.

The Attorney General subsequently made a similar application on behalf of Mr. John Stirling Home, who had served his articles as a writer to the signet in Scotland, and has been respectably recommended from home. Mr. Justice Willis enquired if Mr. Home had been admitted as a writer to the Signet, and was informed that he had not, but he had appeared before the examiners here, and had satisfied them and had obtained their certificate.

Judge Willis enquired if it was customary when professional gentlemen applied to be admitted here who had not been admitted at home, for them to appear before the examiners, and was told that was the usual course. Mr. Home was then ordered to be admitted.

Mr. a'Beckett applied on behalf of Mr. John Staple, the under-sheriff, that he should be admitted an attorney of the Supreme Court. Admission ordered.

Mr. Hustler also made similar applications on behalf of Messrs. Golan, Hubert Solway and John Davis, all of whom having produced the requisite certificates of respectability and legal qualifications, their admissions were ordered.


[1]              See also Australian, 3 November 1840.

Published by the Division of Law, Macquarie University