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

Austin v. Dillon [1848] NSWSupC 1

legal profession, discipline

Supreme Court of New South Wales

April 1848

Source: Sydney Morning Herald, 4 April 1848, in Supreme Court Collection, Vol. 2, p. 57 [1]

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

It may be remembered that early in December last, a rule was made absolute, suspending the above named John Dillon from practising as an attorney, &c., for three calendar months from the 8th day of December last, he having been proved to have been guilty of malpractises in his profession. It will be further remembered that on the 23rd day of December last, a rule nisi, calling upon the same gentleman to show cause why a writ of attachment should not issue against him, he having treated the above rule as was alleged with contempt, having practised as an attorney during the existence of the said rule, was discharged; the Court being of opinion that the circumstances then proved did not amount to a wilful infraction of its rule.

Mr. NMICHIE now moved for another rule nisi, calling upon the said John Dillon to show cause why a writ of attachment should not issue against him, for having on the 24th day of December last, practised as an attorney in the Police Court in contravention of the rule obtained against him on the 8th day of December last; the application was made upon affidavits, which were now read.

The Court granted the rule nisi making it returnable next Monday.

Stephen C.J., Dickinson and Manning JJ, 7 April 1848

Source: Sydney Morning Herald, 11 April 1848, in Supreme Court Collection, Vol. 2, p. 61

IN THE MATTER OF THE APPLICATION OF JOHN AUSTIN v. JOHN DILLON, ONE, &c.

On a former day in this term Mr. Michie obtained a rule nisi , calling upon the above named John Dillon, an attorney of this honourable Court, to show cause why an attachment should not issue against him, for that he on the 24th day of December, 1847, practised as an attorney in the Police Court, during the existence of a certain rule obtained against him on the 8th of the same December, suspending him from practising his profession as solicitor, &c., for three calendar months from the said 8th day of December; such alleged infraction of the rule having also taken place subsequent to the discharge of a certain other rule nisi against the said gentleman; on the arguments of which the majority of the then constituted Court intimated that the original rule of suspension would prevent him from practising at the Police Court in the capacity of an attorney, though it was competent for the Court to allow him to practise in any other character than that of solicitor or attorney. The further ground for the present rule nisi was, that that gentleman had not paid the costs of the original rule. This further ground appeared in rule, but was not urged at the time the rule was obtained.

Mr. Michie now moved to make the rule absolute.

The Solicitor-General and Mr. Broadhurst showed cause. By them, in the first instance, a technical point was taken against the using of the original rule, and the allocatur of the taxed costs, as they are attached to what purported to be a joint affidavit of two persons, but whereas the affidavits, though on one sheet of paper were the several affidavits of the same persons. This, no doubt (said the learned counsel), was a very technical objection, but certainly it was permissable [sic] in a charge of this nature. It was said that in a charge like this, where a party charges an offence of a criminal nature, and invokes the summary jurisdiction of the Court, it behoves him who makes it to substantiate the charge clearly, distinctly, and with the utmost amount of certainty, which had not been made out here. The application ought to be made out so clear, that must have been impossible that Mr. Dillon could have acted on the occasion in question innocently. For aught that did appear on the moving affidavit, he may have so acted with the consent of the Bench. The learned counsel would then go into proceed to answer the point as to the costs, but they were stopped by the Court, is that ground had not been urged when the rule nisi was obtained, and, said the Court, it ought not to have been inserted in the "rule." This, it was then urged, was an additional argument to show how anxious the moving party was to harass and annoy Mr. Dillon. The affidavits in reply were then read. Mr. Dillon in his affidavit, alluding to the case in which he admitted he appeared as advocate at the Police Office on the 24th of December last, and in which he had been employed sometime prior, says he did not act in the said case as an attorney, &c., of this Court, but only as an advocate or agent in the Police Court, and that, on that occasion, the magistrates did not object to his so acting, although they were aware, as he was informed, and believes of the judgment of this honourable Court, delivered on the day prior; that after the case alluded to was over, an objection was raised to his appearing there is an advocate, unless he would state that he did so act as an attorney of the Supreme Court; and in consequence of such objection, he (Mr. Dillon) did not again act there in any capacity during the existence of the rule suspending him from practice. He further stated that when he did so act, he did not believe that he was acting, nor did he intend elope, in violation or contempt of the said rule, that solely, because he believed it was competent for him to practise there is such advocate or agent. It was therefore contended, that Mr. Dillon might well or mention, as the magistrates were aware of the decision of this Court on the day prior, and as they did not object to his conducting a case before them, that they had tacitly gave him consent to act as an agent, &c.

After the arguments were concluded, his Honor the Chief Justice, took this further technical objection, viz., that upon looking to the rule nisi , it appeared that it had been drawn up, &c., upon reading the joint affidavits; whereas, upon looking to those affidavits, they did not appear to be joined affidavits, but the several affidavits sworn on the same paper.

Mr. Michie and Mr. Lowe were not called upon by the Court.

His Honor the Chief Justice, after disposing of the had two technical points that had been taken by the Solicitor-General, and by the Court, saying that the amounted to nothing, and would not avail Mr. Dillon, proceeded to state that the Court in delivering judgment, on the 23rd of December, when discharging the rule nisi foreign attachment for an infraction of the rule of the 8th of December, decided that when Mr. Dillon did practice at the Police Court as an attorney, he treated the rule with contempt, unless he could show that he practised with the assent of the magistrates in any other capacity than that of an attorney; on that occasion he did not show that he had such assent, but under the particular circumstances of that case, the court intimated it did not amount to a wilful infraction of the rule, and so the rule nisi was discharged, without costs. The facts disclosed again to amount also to an infraction of the rule, and though Mr. Dillon swears that he believed when he acted as the deed he did not intend to act in the violation or contempt of the rule, yet, knowing as he must have known, the decision of the Court, on the rule of the 23rd of December last, said His Honor, the court cannot give credit to that statement. If he were sincere in what he now swears, why, when objection was made to his appearance at the Court - and when asked whether he appeared as an attorney or not, did you not state he acted there as an advocate, by showing he had the leave of the Bench to do so? This proved that he knew he was guilty of an infraction of the rule; or why again should heed assist to practise after the objection was made?

His Honor said that the Court must uphold its own rules; and he clearly there was an infraction, and which had been unanswered, and therefore the rule must be made absolute for the attachment; reserving, however, the decision as to the costs until Mr. Dillon should come in to purge his contempt. His Honor said he wished it to be understood that the mere non-payment of costs was not a ground of contempt.

His Honor Mr. Justice Dickinson and Mr. Justice Manning concurred.

Notes

[1] See also Austin v. Dillon, 1847; R. v. Dillon, 1848.

Published by the Division of Law, Macquarie University