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

Re Carrington [1842]

habeas corpus - contempt, attachment - insolvency, refusal to produce accounts - jurisdiction of Sydney judges in Port Phillip - appeal from Port Phillip Resident Judge to Full Court - imprisonment for debt, rules

Supreme Court of New South Wales, Port Phillip

Willis J, 2 May 1842

SourcesPort Phillip Gazette, 5 May 1842; Port Phillip Gazette, 4 August 1841[1] 

Source: Port Phillip Gazette, 5 May 1842

His Honour having taken his seat on the bench, enquired of Mr. Carrington, whom he saw in Court, whether he was prepared to produce the bills, documents, and vouchers connected with the estate of Peter Snodgrass, an insolvent.

Mr. Carrington. Your Honor, I have not been able to do any thing in the matter since my commitment.

Judge Willis. I did not, Mr. Carrington, commit you, as I might have done, for neglecting to produce those documents, which you were bound to do, as promised by yourself, and also by that honorable member of this bar, whose counsel you repudiated, and whose pledge you betrayed. I have two courses to adopt with respect to this matter. The regular course would be to commit you to prison, until you produce them, yet the state of the gaol, and other merciful considerations: for this case differs widely from that of Mr. Arden's, which was a criminal one, and this being a commitment for contempt of the order of this Court under a civil process, you were allowed the benefit of the Rules,[2]  in which your house is situated. There is another course I could take, that is, to issue an alias attachment, on your giving bail to the Sheriff, so that you may be enabled to still further exert yourself in the production of these accounts, and to facilitate your performance of the pledge your counsel made, and to do that which is lawful and just. I, as I have before observed, understand that your house is within the limits of the Rules, and I am always happy to make the administration of the laws as little irksome as the law permits, but I have a duty to perform, and whatever pain that duty may occasion, I am determined to administer it to the best of my power and judgment, but if you are willing to give me your promise that every exertion will be made on your part to comply with the order of this court, and give sufficient bail to the sheriff, I will order the writ to be made returnable in a week or ten days, in order that you may have sufficient time to produce these documents; I will, moreover, give you every facility in my power to effect this matter. I now put it to you, Mr. Carrington, if you agree to produce these documents, which you admit are in your possession, and give me your word they shall be forthcoming by a given time, and let the accounts be reasonably correct, the best that the circumstances will admit of, and I believe them to be the best you are able to furnish, I shall then consider you have purged your contempt, but until this is done, the attachment must be enforced against you.

Mr. Carrington. Your Honor, being already attached by the order of this Court, and in custody, and which order you have stated -

Judge Willis. Before I can hear you, Mr. Carrington, you must purge yourself of contempt, and I warn you, that unless the papers in this matter are produced, you will be committed; I might have committed you in the first instance, yet now, if I was persuaded that you would use the utmost diligence in your power to comply with the order of Court, I would give you further time.

Mr. Carrington. May it please your Honor, situated as I am, I must beg to decline saying any thing upon this subject before your Honor at present.

Judge Willis. (Addressing the Deputy Registrar) let the warrant of commitment be placed in the hands of the sheriff, to be put in force. Mr. Carrington, the four days you have had, afforded you ample time to produce these accounts, and to purge yourself of contempt; at the time I directed an attachment to issue against you, I treated you as an officer of this Court, but as you are no longer so, I consider your present conduct adds to the contumacy of your former appearance in Court, or rather your last appearance.

Mr. Carrington then left the Court in custody.

Source: Port Phillip Gazette, 4 August 1841

[xx] Few of our Melbourne readers are by this time unaware of the extraordinary proceedings in the Supreme Court, during the past two days, but as there is, as usual, much exaggeration afloat, a fair detail of the causes which have led to these extraordinary occurrences, and of the occurrences themselves will not be out of place.

W hen Mr. Carrington was committed to gaol for refusing to produce his accounts in the insolvent estate of Mr. Peter Snodgrass, application was made on his behalf before Mr. Justice Burton on a writ of Habeas Corpus to bring Mr. Carrington before the full Bench at Sydney. Judge Burton refused the application, because having no jurisdiction in the district his writ would be unavailable, but he pointed out to Mr. Carrington's counsel that if his client felt himself aggrieved by the decision of the Resident Judge, the law allowed him the right of appeal to the full Court at Sydney. This course was followed, but, strange to say, the application for a writ of Habeas Corpus was renewed before Sir James Dowling (whom everybody knows to be no great gun on the bench) and by that sapient functionary it was allowed. In addition to this a writ of certiorari to remove the proceedings against Mr. Carrington to the Supreme Court at Sydney was applied for and obtained. There were, therefore, issued from the Supreme Court at Sydney a writ of Habeas Corpus directing the Deputy Sheriff of Port Phillip, (who is not an officer of the Supreme Court at Sydney, nor subject to its jurisdiction) to bring up the body of Horatio Nelson Carrington; a notice of appeal entertained in a case not yet finally adjudicated, and a writ of certiorari to remove the proceedings in Mr. Carrington's case from the Supreme Court here to the Supreme Court, at Sydney, as if from an inferior Court to a Court of higher jurisdiction.

Whether their Honors have or have not exceeded their authority in this matter a very short time will tell. We are decidedly of opinion they possess no power here save in their appellate jurisdiction, and decidedly that power is insufficient to warrant them in taking the steps they have done. Whatever their power, however, nothing will justify the want of courtesy to the Resident Judge which forms so prominent a feature throughout the transaction, and which is abundantly obvious in the subjoined detail.

The notice of appeal and the writ of certiorari were not sent to his Honor the Resident Judge through the ordinary channel of communication, the Registrars of the Courts; but we dare say their Honors were at a loss to know the proper course to adopt, for though appeals from the decisions of the superior courts in England, Ireland and Scotland, are matters of every day occurrence, we do not think there is an instance on record of notice being served on the Judge whose decision is appealed against, and a writ of certiorari from one court to another of equal jurisdiction is, we think, a proceeding altogether unheard of. The course adopted on this occasion was, however, to employ the appellant (Mr. Carrington) to serve both the notice and the writ, and everybody who knows anything of that worthy gentleman will easy imagine with how much deference to the Judge's feelings he was likely to discharge the duty imposed upon him.

On Saturday last Mr. Carrington wrote a letter to the Judge informing him of the receipt of the notice and requesting his Honor to state when it would be convenient for him to be served with the notice. Regarding this letter as an insult, and the whole proceedings as illegal, his Honor took no notice of the matter, and nothing further was attempted until Tuesday when Mr. Carrington accompanied by Mr. Ebden (a gentleman from whom something better might have been expected), made his appearance in court and addressing the Judge said he had come to serve upon him the order of the Sydney judges issued on his appeal. The Judge informed Mr. Carrington that he looked upon the proceedings of the Sydney judges as unconstitutional and illegal, and he should not therefore receive their order, or pay any attention to their proceedings, whereupon Mr. Ebden taking the papers from Mr. Carrington said he should serve them upon the Judge, and was actually attempting to do so when he was ordered out of Court, and his behaviour being offensive, he was threatened with committal.

Yesterday Messrs. Carrington and Ebden with a bevy of admiring friends in their suite again made their appearance at the Supreme Court, and lay in wait in the vicinity until the Judge made his appearance when Mr. Carrington pounced upon him and again addressed him on the subject of the papers he held in his hand. His Honour informed him that there he would not speak to him, but that if he had anything to say to him he would hear him in open court, and with this view the court was opened and his Honour took his seat upon the bench, where several cases awaited his attention. Whether it was that the two gentlemen embarked in the manly occupation of insulting a Judge, considered, that as insult might more safely be offered to the Judge when off than when on the bench, we know not; but after flourishing in court they retired, and during the remainder of the day, while his Honour was engaged in his judicial duties, they paraded up and down in the front of the Court- House, entertaining the wondering audiences, which speedily assembled, with magniloquent tales of what was to be expected when the Judge made his appearance. The business of the Court over, Judge Willis retired to his private apartment, and soon after appeared on the outside of the Court on his way homeward, in company with Mr. Pinnock, the Deputy-Registrar, and followed by the tipstaff of the Court. His Honour's appearance took Mr. Carrington and his friends aback, for not being expected quite so soon Mr. Ebden was not forthcoming at the moment, and it was not until messenger after messenger had gone in search of him that he appeared, and arm in arm with Mr. Carrington set off in chase of the Judge, who had by this time got up nearly as far as the summit of the hill. At last, after considerable exertion, Mr. Carrington succeeded in making up to the Judge and touching his hat he addressed him with "May it please your Honor," when he was interrupted by the Judge who said he could hold no communication with him excepting in open Court. This repulse was however, insufficient; Mr. Carrington again ran after the judge who was passing on and attempted to address him but no notice being taken he took the bundle of papers he had in his hand, and flung them at the Judge with such violence that they rebounded from His Honour's shoulder where they struck him. His Honour then turned round, gave both Mr. Carrington and Mr. Ebden into custody of the tipstaff, and returned to court until a bench of magistrates was convened, before whom the defendants who had been sent to the gaol were brought, to answer a complaint preferred by his Honour against the former for assaulting him, and against the latter for aiding and abetting. The bench which was composed of Major St. Joba, P.M, Messrs. Stainforth, McCrae, Mercer, and Griffiths, proceeded to inquire into the case, and having heard the various witnesses pro andcon, they arrived at the following deliverance: "The bench are of opinion that no charge against Mr. Carrington is sufficiently made out to justify punishment, and that his sole motive was undoubtedly to effect a personal service which he deemed absolutely necessary."

We have no hesitation in saying that this is a most infamous verdict. There appeared nothing in the depositions to shew that it was necessary the notice and other documents should be served personally by Mr. Carrington, or upon the Judge in person; indeed the fact that Mr. Ebden undertook the service of the notice on the previous day was sufficient evidence that Mr. Carrington did not himself consider so. The plea, therefore, that Mr. Carrington considered a personal service necessary, is good for nothing. If, however, there had been no other mode of service, if it would have been insufficient to leave the notice at his Honor's residence, or at the Supreme Court? Still to fling papers at the person of a Judge in the public street and within view of a large number of spectators is not the way to serve the process of any Court, and would not have met with the sanction and approbation of any Bench of Magistrates in the world, saving and excepting their worships of Melbourne.

There was not, we believe, a single magistrate on the bench, nor a single spectator in the court who was not convinced in his own mind, that these steps were taken by Mr. Carrington and his coadjutor Mr. Ebden with the express view of annoying the Judge: ought, therefore, the magistrates to have lent their countenance to this outrage, even if their verdict had not established the principle that a bailiff or other person engaged in serving the process of a court is justifiable in committing an assault in doing so, provided only he himself deems that mode of effecting his object "absolutely necessary." We know not, and we apprehend their worships will by-and-bye discover their error.[3] 

Notes

[1]  This is one of numerous cases in which Willis J. felt compelled to discipline members of the legal profession. Carrington was an attorney: see Willis v Dutton[1841] NSWSupC xxx and Ebden v. Willis [1843] NSWKR xxx.

See also the related case of R v Arden [1841/2] NSWKR xxx.

[2]  This appears to be a reference to the "rules", a defined physical area surrounding a debtors' prison in which prisoners could live while formally remaining in custody. See Imprisonment for Debt Rules [1834] NSWSupC 16.

[3]  For continuation of this litigation and its consequences, see Ebden v Willis[1843] NSWKR xxx.

Published by the Division of Law, Macquarie University