Skip to Content

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

Austin v. Dillon [1847] NSWSupC 3

legal practitioners, contempt, attachment for

Supreme Court of New South Wales

Stephen C.J., December 1847

Source: Sydney Morning Herald, 9 December 1847, in Supreme Court Collection, Vol. 2, pp 36-37 [1]

IN THE MATTER OF JOHN AUSTIN AGAINST JOHN DILLON, GENT., &c.

Mr. MICHIE, on behalf of John Austin, Captain of the Pestonjee Bomanjee, on a former day obtained a rule nisi, calling upon John Dillon, Solicitor, &c., to show cause why he should not be struck off the Rolls of this Honourable Court,---or why he should not answer the matters in the affidavits then read; and the grounds then stated for the rule nisi were, that he, Mr. Dillon, had abused the process of the Court; that he had attempted to extort money from the said John Austin by bringing a groundless action against him in the Supreme Court, and that before any appearance thereto, he abandoned the same, thereby putting the said Austin vexatiously to expense; and that at the time of the discontinuance of the said action, Dillon wrote a threatening letter to Austin, stating that he would sue him in the Court of Requests, unless the sum of five pounds were paid, due to him on account of one Wm. Nicholas, from the said Austin.

From the affidavits then read, it appeared that one William Nicholas, some time in October last, a sailor on board the Pestonjee Bomanjee, had committed a most violent assault upon Captain Austin; Nicholas at this time had earned, as it was alleged, wages in the vessel, and about £12 in amount was due to him. Nicholas was no sooner delivered into the custody of the police than he sent for Mr. Dillon, who defended him in the Water Police Court ; from thence Nicholas was committed for trial for the assault. To compensate Mr. Dillon for the trouble he had taken in the Police Office, Nicholas drew in his favour an order upon the Captain for the sum of five guineas; the order was presented for payment, but the Captain refused to pay it at that time, making answer to the effect that he would not pay the order unless Nicholas were convicted, and that under the circumstances Nicholas was not entitled to his wages. It further appeared from the affidavits, that upon this order Dillon commenced an action in the Supreme Court against the Captain, on the 13th of October, endorsing the writ of summons for a sum of ten guineas, besides expenses; the Captain immediately authorised Messrs. Rodd and Dawson to defend the action,---and an appearance was duly ordered to be entered, but was not. On the 22nd of October, Dillon wrote to the captain to the effect that as he found his ship would not sail quite so soon as he (Dillon) anticipated, he would discontinue the action commenced in the Supreme Court, and would commence an action in the Court of Requests for the five guineas, unless they were paid in the meantime. The affidavits further stated that Austin never had any transaction with Dillon, so as to make him debtor to Dillon, and that he (Austin) believed the action in the Supreme Court was brought, and the letter written, for the purpose of extorting money from him.

Mr. MICHIE now moved to make that rule absolute; whereupon

Messrs. FISHER and SUTTOR showed cause premising that they were prepared with an authority to show that the rule ought to be discharged on the ground of informality; but as the character of their client had been called into question, they would show cause on the merits. They then stated, that upon referring to the date of these occurrences, - particularly to the date of the issuing the writ of summons in the Supreme Court, - that as the day was in term, and the term was not over for some time afterwards, had Mr. Dillon had been guilty of any great bridge of good practice, this application ought to have then been made before. A long string of cases was then cited, to show that the matter set forth in the affidavit on the other side did not amount to a case for the summary interference of the Court. It was contended, as indeed appeared from the numerous affidavits now read, the Dillon in commencing the action on the order given by Nicholas, believed that he had good cause of action against the captain; and that Dillon, having been so often, as appeared likewise from the affidavits, defrauded by the captain's of numerous vessels, by their not paying similar orders, given by sailors upon them to Dillon, in payment for services rendered to them by Dillon, was anxious and desirous of trying the question in the Supreme Court, whether an action could be maintained upon the order; and, being of opinion, though perhaps erroneously, as it was admitted, he had commenced the action in the Supreme Court. And as to the fact of the writ being endorsed for an amount greater than was really due, and being in contravention of a rule of Court, some of the affidavits stated that Dillon, though he gave instructions to one of his clerks to have the writ issued, the clerk endorsed the writ in the way he it was endorsed, and he alone was not aware at the time of the amount so indorsed; it being the customer Dillon not to attend to the issuing the writs out of the office. It was submitted, therefore, that the cause of action as commenced in the Supreme Court, was not groundless, as sworn by Austin, and had made such an answer to the application that the rule ought to be discharged.

Messrs. MICHIE and LOWE replied at great length, contending that a case of extortion had been clearly made out; and that the case set up in answer made the matter worse. The affidavits adduced by Dillon and his various clerks then underwent a minute criticism, and their various inconsistencies and inaccuracies were pointed out, and it was then submitted, that the main question was, did Dillon commence the action in the Supreme Court, with a bona fide intention of trying the right whether an action could be maintained upon such a chose in action? It was almost clear and manifest, that the action was commenced with a view of extorting the ten gunieas [sic], and finding that Austin was not going to pay the amount claimed, but had in fact authorised a defence to the action, the action was discontinued, and discontinued too, before Austin had entered an appearance to the writ; so that the plaintiff would not be saddled with the costs of discontinuance. And it was urged that further want of bona fides in commencing the action was evident, by the threatening letter was written. It was lastly urged also, that it was the duty of the Court to punish its officers for their malpractices - not so much with a view of correcting them, as a protection to its suitors.

His H onor the CHIEF JUSTICE, after conferring some time with the other Judges, delivered the judgment of the Court; and after going through the points made on either side, said that he could not help arriving at the conclusion, looking at all the surrounding circumstances attending the order in question, and it being given upon a person who was about to leave the colony, that the action was commenced, either in real ignorance that it could not be maintained, or with a view of extorting money from Austin, thinking that he, Austin, would rather submit and pay the amount, than enter upon litigation; if the action were commenced in really Darren's, as stated and suggested, and with a view of trying the question in the Supreme Court, Mr. Dillon had assigned a very insufficient reason for its discontinuance, he having said for so doing, that it was in consequence of Austin's lengthened state in the colony, as if the action, being commenced, could not have been continued as well during Austin's residence in the colony as in his absence. On the contrary, a clear case of suspicion of attempted extortion had been made out, and had not been properly answered by the other side; the Court, therefore, His Honor said, had a painful task to perform, but in punishing its officers, it had also the welfare of the public in view. His Honor then pronounce the judgment of the court as follows:- That Mr. Dillon be suspended from practicing as a solicitor, &c., for three calendar months from the 8th of December, and to pay the costs occasioned on the other side by this application.

 

Stephen C.J., and Dickinson and Therry JJ, 21 December 1847

Source: Sydney Morning Herald, 22 December 1847, in Supreme Court Collection, Vol. 2, p. 44

Before the full Court.

IN THE MATTER OF THE APPLICATION OF JOHN AUSTIN, ETC., AGAINST JOHN DILLON, SOLICITOR, ETC.

Mr. Michie, on behalf of the said John Austin, moved either for an attachment against the said John Dillon, for contempt, he having disobeyed a rule made by this honorable Court, suspending him from practice as a solicitor, &c.; or if the Court should be of opinion that, as the rule was now worded, the Court could not grant an attachment against him, then that the Court should remould the said rule to the following effect - "striking him off the rolls of the Court as an attorney, &c., of this honorable Court, for three calendar months from the date of the rule, at the end of which time, and upon the payment of the costs occasioned by the application, to be readmitted as an attorney, &c. For it was allowed as the rule now stood, it might admit of two interpretations. It was urged that it was only by virtue of his being admitted an attorney, &c., of the Supreme Court, that he had the privilege of practicing as an attorney in the Court of requests and Police Courts. Mr. Michie then read affidavits, which showed that though the Commissioner of the Court of Requests, and his worship the Mayor had been severally served with verified copies of the Rule of Court suspending Mr. Dillon from practice, yet the ballade him to practice as such in their respective Courts. It was further sworn, that when Mr. Shuttleworth, on behalf of John Austin, in the court of Requests, moved that Court that Mr. Dillon be suspended from practising therein for three calendar months, in conformity with the rule of the Supreme Court, the application was opposed by the several attorneys who happened to be in the Court at the time, and the learned Commissioner, though served at the time with a copy of, and shown the original rule of the Supreme Court, intimated that he interfere in the matter, as his, the Commissioner's powers, in suspending attorneys, &c., from practising in Court of Requests were given him by the 48th section of the 6 Vic., No. 15, and holding no doubt, it was submitted that it did not follow because he had been suspended from practising in one Court, as an "admitted attorney" of the Supreme Court, practise in the Court of Requests. It was contended, that if the learned Commissioner's decision were right, he must also hold that though an attorney of the Supreme Court should be struck off the rolls altogether, yet still he might practise in the Court of Requests until he had misconducted himself in that Court. It was therefore contended, that a case for an attachment had been made out, &c., but

The Court intimated that it was too late now to vary or remould the rule; it might have been altered any time before it was signed, but now it was too late, and as far as the Court of Requests was concerned, there was some difficulty in granting the other part of the application, as it would appear that that Court had the subject particularly brought before its attention, and that Court had adjudicated thereon; besides, Mr. Dillon might have raised other difficulties to the granting of the application, and he ought to have the opportunity of being heard. The Court further intimated that it thought that Mr. Dillon had violated the Rule of the Court which suspended him from practice, and therefore granted a rule nisi returnable next Thursday.

Stephen C.J., and Dickinson and Therry JJ, 23 December 1847

Source: Sydney Morning Herald, 24 December 1847, in Supreme Court Collection, Vol. 2, p. 45

IN THE MATTER OF THE APPLICATION OF JOHN AUSTIN v. JOHN DILLON, ATTORNEY, &C.

Mr. MICHIE, on a former day, had obtained a rule nisi calling upon Mt. Dillon to show cause why an attachment for contempt of a rule of this Court, dated the 8th instant, suspending him from practising as an attorney, &c., of this honourable Court, for a period of three calendar months, should not issue against him, on the following grounds: firstly, that a copy of the said rule was served personally upon him on the 11th day of December, and the original rule exhibited to him at the same time; secondly, that after the judgment of this honourable Court had been pronounced, suspending the said John Dillon, &c., and before and after the service of the said copy, the said John Dillon continued to practise as an attorney of this honourable Court in the Court of Requests. Thirdly, upon grounds set forth in affidavits made and sworn by Mr. Shuttleworth and his clerk, who stated that Mr. John Dillon had also practised as an attorney in the Police Court in the prosecution of one Hart, for perjury, since he was so suspended, &c.

Mr. MICHIE now moved to make that rule absolute.

Mr. FISHER, for Mr. Dillon, showed cause; and commenced by saying that he, in consequence of not being present at the time the rule nisi was obtained, and not knowing what observations fell from the learned counsel who obtained the rule, he was at a loss in the first place how to answer the case as set forth in the notice of motion. But, he submitted, he had only to deal with the rule as it was now worded, and therefore it was not for him to make out what the intention of the Court was in granting the rule. And to being the rule most strongly against his client, it was for those who moved for an attachment, as it was highly penal in its nature, to make out a clear case of violation of the rule; and that he contended had not been made out; and first as to the infraction complained of, because of the practice in the Court of Requests, he would submit that as that Court was a distinct Court from the Supreme Court, and as Dillon had only been suspended from practising as a solicitor, &c., "of this honourable Court," he clearly had a right to practise there, having been admitted as a practitioner "of that Court (the Court of Requests)," his name being still duly enrolled there as such, though an attempt had been made to have him suspended from practising in that Court also. Referring to the practice in such matters in England , it was contended that where an attorney is an attorney of several Courts, the mere fact of being suspended from, or indeed struck off the rolls of, one Court, did not ipso facto suspend or strike him off the rolls also of the other Courts. And the analogy of the practice must hold good here. Paget v. Chambers, 7 Scott, 610; Ex parte Yates, 2 Moore and Scott, 618. Secondly, as to the infraction of the rule in the Police Office, it was contended that it had been both the practice in England, and certainly in this colony, for the magistrates, in their discretion, to allow any person, other than an attorney, to represent and advocate the interests of others before them; and if so admitted to practise, they practised not as "attorneys," but as "advocates" or "agents"; and here Dillon so acted in the prosecution mentioned, not as attorney but as "advocate" and "agent." And, lastly, the remaining point, the learned counsel said he would submit, was, whether it had been clearly shown that Dillon had wilfully and contemptuously infracted the rule of Court suspending, &c., no such case had been made out; and, on the contrary, to show that Dillon did act bona fide , and not wilfully, in this practising in both Courts, since the said rule had been obtained an affidavit of Dillon's was then read, which contained passages to the following effect:---That he had not acted as attorney, &c., of this honourable Court since the said rule, but only as an "advocate and agent, and that such capacities do not form any part of the duties of an attorney of the Supreme Court; that after the judgment of the Court suspending him from practice, &c., he refused to act in the Police Court and the Court of Requests until he had obtained the written opinion of two counsel, ---(they being the Attorney-General and Mr. Fisher) that he might, notwithstanding the judgment of the Supreme Court, practise in those Courts of inferior jurisdiction. That upon those opinions being shown to the Commissioner of the Court of Requests, and to Messrs. Windeyer, Innes, and His Worship the Mayor, he was allowed to practise in the Court of Requests and the Police Courts. That he wrote to Mr. Windeyer, the Senior Police Magistrate, asking him whether he (Mr. Windeyer) would allow him (Mr. Dillon) under the circumstances, to practise in his Court, when Mr, Windeyer in a letter (which was now read) intimated that other than attornies were permitted to practise in the Police Courts, and that he might practise therein. That the Commissioner of the Court of Requests when asked to suspend him from practising in his Court said, that except under the circumstances stated in the 48th section of the Court of Requests Act, he (the Commissioner) had no jurisdiction to suspend from practising any admitted "practitioner" of his Court; it was therefore contended, that Dillon had not wilfully and contemptuously infracted the rule of the Court; if he had misconstrued it, others had done so likewise, in whose opinion he (Dillon) had every reason to place the most implicit faith.

Messrs. MICHIE and LOWE were heard in support of the rule; they contended, that although perhaps sufficient had already been shown by Dillon's affidavit that there had not been any wilful infraction of the rule, yet it even seems to admit that there had in substance been an infraction. The same argument was then made use of, as at the moving of the rule nisi , as to the absurdity of the decision of the Commissioner of the Court of Requests, viz., that if his decision were correct, any attorney, though struck off the rolls of the Supreme Court, might still practise in the Court of Requests. And as to the practice in England, if an attorney be struck off the rolls of one Court, and he should be admitted of another, that other Court, upon being shown the rule striking him off the rolls of the one Court, would also carry that sentence into execution, as far as its own Court was concerned. The same course had been adopted here, but not with the same results, though the Court of Requests, it was urged, had no original jurisdiction, and no distinct class of practitioners were admitted there. Besides, it was urged, the affidavit of Dillon is deficient, coming here as he does to purge himself of a contempt, he ought to have sworn specifically and pointedly, that in acting as he admits he has done, he did so without any intention of acting contemptuously in reference to the Rule of Court; this he has not done,. And therefore he has not purged his contempt in a way to get the rule nisi discharged.

Their Honors the JUDGES severally delivered their opinions.

The CHIEF JUSTICE and Mr. Justice THERRY'S judgments were to the following effect:---That looking at the wording of the rule which suspended Mr. Dillon from practice, inasmuch as it did not go on to state that he was suspended from practising as a solicitor, &c., in all the Courts, superior and inferior, naming them all by name,---there was some room to doubt its proper construction, though it was the intention of the Court, at the time the rule was granted, that he should have been deprived for the period of all advantages that his position as attorney gave him. And, upon the whole, looking at the rule as it now stands, they thought he had a right even now to practise in the Court of Requests,---as the clauses which give the Commissioner of the Court of Requests to admit such practitioners, &c., were worded in such a manner as to distinguish the present case from many that might be cited as illustrating the practice in England in such cases; and, therefore, there had been no infraction of the Rule of Court. Being once admitted on the roll of the Court of Requests, the Commissioner could not strike him off the roll of that Court, until he had misconducted himself as stated in the forty-eighth section of that Act. But they said he clearly had infracted the said rule by practising in the Police Office; it was by the affidavits on which the rule nisi was obtained, sworn that he had practised as an "attorney," which fact was not denied by Mr. Dillon; and it was for him, did he practice there by express leave and sanction of the magistrates to practise, not as an attorney, but as an "advocate" or "agent", then he Dillon ought to have made that fact apparent; as it now stands, it must be taken for granted, that he had acted there as an attorney, as he had done formerly. Though it was quite competent for the magistrates, even now, to grant him (Dillon) permission to appear before them in any other character than as an "attorney." The next question, ought Mr. Dillon to be punished for so having acted---he ought not.

Their HONORS said, as he (Mr. Dillon) had not acted so wilfully---but in so acting was warranted by the opinion of counsel, and there were others, attornies, who had also been of the same opinion, and had so expressed themselves in the Court of Requests, when the Commissioner of that Court was moved to suspend Mt. Dillon . Under all the circumstances, therefore, their Honors said the rule ought to be discharged, but without costs.

His Honor Mr. Justice DICKINSON agreed with the rest of the Court, that there had been an infraction of the rule by merely practising in the Court of Requests; and His Honor, differing from his learned brethren, thought that the rule had not been violated by practising in the Police Courts; and therefore he thought the rule ought to be discharged with costs.

The rule was discharged without costs.

Note

[1] For continuation, see Austin v. Dillon, 1848; R. v. Dillon, 1848.

Published by the Division of Law, Macquarie University