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

Re Stephen [1842]

admission to practice as a barrister, conduct of applicant - convict servants, assignment of

Supreme Court of New South Wales, Port Phillip

Willis J, 3 September 1842, 4 October 1842

Sources: Port Phillip Gazette, 5 September 1842; Port Phillip Gazette, 6 October 1842[1] 

See also: Port Phillip Gazette, 7 November 1842, 21 August 1844

Willis J, 3 September 1842

Source: Port Phillip Gazette, 5 September 1842

[XX] RE SYDNEY STEPHEN. Mr. Sydney Stephen, of the Van Diemen's Land bar, who appeared in court in his wig and gown, applied for admission to practice as a barrister of the court.

His Honor. You must apply in the usual way, Mr. Stephen, through a barrister of the court.

Mr. Stephen. I apply to be admitted.

His Honor. I may as well tell you that were I even to sanction the irregularity of your application I would not accede to your admission until I had made reference to the judges at Sydney for their opinion thereon. It would be only for their opinion, however, for I should still consider myself at liberty to act upon my own judgment. You will sustain no inconvenience, however, for there is a vessel sailing for Sydney to-morrow, there will, consequently, be plenty of time to obtain a reply.

Mr. Stephen. Your Honor does not then, I apprehend, entertain the application.

His Honor. Certainly I do not.

Mr. Stephen. I ask as a matter of justice that your Honor will state your reasons for acting in this unusual manner.

His Honor. I have a right to consult any Judges whenever I think fit. I need not, therefore, assign any reason for not entertaining your application at present, but, if you wish it, I have no objection at once to assign my reasons.

Mr. Stephen said he hoped his Honor would do so.

His Honor then quoted from the various Acts of Parliament and of the Legislature the powers with regard to the admission of barristers and attorneys conferred upon the Judges at Sydney and the Resident Judge here, shewing that he (Mr. Justice Willis ) has the exclusive power of admitting or rejecting at his discretion, all applications for admission to practice in the court. Then addressing Mr. Stephen his Honor said: I do not consent to your application for admission, because of a matter which came judicially under my notice when on the Sydney bench. A case came before the court in which Mr. Carr, of the firm of Carr, Rogers and Young, a respectable solicitor of the court, was the plaintiff, and you were the defendant. It appeared that you had sold to M r. Carr an estate at Jarvis Bay, with the whole of the stock and assigned servants (24 in number) thereon. The advertisement for the sale enumerating the property offered as so many bullocks, cows and assigned servants. Afterwards you took away the whole of the assigned servants in the middle of harvest, for which Mr. Carr brought an action against you and recovered damages on the verdict of a jury. Subsequently an application for a new trial was made to the full court, and you then appeared as your own counsel, and rightly argued that the whole sale was illegal because the law does not sanction the sale of human beings. In thus nullifying your own act, Mr. Stephen, though your law was good, I do not think your conduct was becoming a gentleman and an honest man. I read the whole of the papers in this most extraordinary case with great care, and the impression left upon my mind was, that you were not altogether free of reproach. I will not, therefore, consent to your admission until I receive the opinions of the Sydney Judges, and even then should consider it a courtesy due to the bar to consult them be fore I admit a gentleman with whose purity of conduct I am not myself perfectly satisfied.

Mr. Stephen. I am obliged to your Honor for assigning your reasons, and I trust shall be allowed an opportunity of explaining.

His Honor. No explanation is necessary. I speak from facts which came judicially before me.

Mr. Stephen. If your Honor refuses me permission to explain, your statement will go before the public uncontradicted.

His Honor. Mr Stephen, my statement is true: I will not allow you to cast an imputation on my veracity as a judge of this Court.

Mr. Stephen. I am desirous that the matter should be explained to the public.

His Honor. The matter is already before the public, but you can send a letter to one of the newspapers.

Mr. Stephen. It is before the public of Sydney, but probably the public here never heard of my name until the other day, when it appeared in conjunction with your Honor's, in a ridiculous paragraph in one of the newspapers, as having come here to supersede your Honor on the bench.

His Honor. Whenever her Majesty pleases to recall me, I will very willingly resign my office into the hands of any fit and competent person.

Mr. Stephen. I am sure she will do so whenever that change takes place.

His Honor. Mr. Stephen, it was at your own request I assigned my reasons for not admitting you forthwith, which I need not, and would not otherwise have done. I cannot have the time of the Court unnecessarily taken up, but as you seem to think your character will suffer injury, you may make any explanation you please and set yourself right with the public if you can, but, I tell you beforehand, your explanation will not alter my opinion.

Mr. Stephen. In May, 1838, I entered into an agreement with Mr. Carr for the sale of my estate, cattle, and stock, for £6000, and I agreed to transfer to him the services of 24 assigned servants, which I could then do with the consent of the Governor. Mr. Carr was to pay off immediately a mortgage of £400 on the estate, and the remainder by bills at long dates, giving me a mortgage on the property until the whole was paid. Immediate possession was given to Mr. Carr, who had not then completed any part of [illegible] and I wrote to the magistrate [illegible] my consent to the transfer of the assigned servants, which, according to the assignment regulations, Mr. Carr should have obtained permission for in the month of September following. The household furniture, and several other articles belonging to my family, had not been included in the sale, and sometime afterwards I sent a dray to bring them up to my other farm, but the overseer refused to deliver them, alleging he had no order from his employer. I remonstrated with Mr. Carr, who said it was a mistake, and promised to write to the overseer, by a vessel then about to sail. I hired the vessel to wait for the furniture, but it was again refused, and the vessel returned without it. I was then at my other farm, and hearing that Mr. Carr had sold his business and was about to return to England, without having either paid off the mortgage or given me any security over the land, I sent my son to demand delivery of the furniture, with instructions if that were refused to bring off the convict servants, which was done, Mr. Carr ha ving failed to apply for their transfer, as he ought to have done.

His Honor. Mr. Carr is not present, and I cannot permit such imputations as these to be thrown out against him in his absence. All the facts of the case appeared in evidence, and the jury brought in a verdict of £250 against you. It appeared, moreover, that prior to your taking away the assigned servants you had imposed upon the government, and obtained seven additional assigned servants, the number to which you were entitled as a new settler.

Mr. Stephen. Your Honor, when I applied for new assigned servants I considered the others as transferred to Mr. Carr, and I had taken every step that could be taken for that purpose until the month of September following. Mr. Carr brought his action against me and recovered £250 damages. I applied to the court, in person, for a new trial, for being dissatisfied with the manner in which Mr. Therry, my counsel, had conducted the case. It was not likely I would again employ a barrister through whom I considered had lost a verdict which I ought to have gained. On the application for a new trial, I relied chiefly on the fact that Mr. Carr had not fulfilled his contract, but I also contended that the contract was void in law, as being against public policy, and contrary to the spirit and intention of the Transportation Laws that persons should dispose of or assign their convict servants, without the consent of the Governor, as in that case the friends of convicts might be enabled to purchase estates and thus obtain the control over their relatives.

His Honour. The law was clear enough, it had already been decided in the case of Hughes v. Walker [ Walker v Hughes [1839] NSWSupC 71 ].

Mr. Stephen. I beg your Honor's pardon, the case of Hughes v. Walker had not then been decided.

His Honour. I repeat it: it had been tried. Perhaps the trial before a jury had not come on, but the principle had been decided on a bill in equity in the case Hughes v. Walker long before. The equity case came before me soon after my arrival in the colony, and your case was not tried until the latter part of 1838.

Mr. Stephen. I could take my oath it was before.

His Honour. Mr. Stephen, I will not allow you to use such language in court. Your explanation has not made the matter any better, for you admit having come before the court to take advantage of the illegality of your own act, and you cannot deny having obtained more men by a false representation to the government. I do not think now I shall consult the Sydney Judges on the subject. I will consider the matter until next week.

Mr. Stephen. Your Honor said as a vessel was to sail for Sydney on Monday or Tuesday you would send by that opportunity.

His Honor. I do not intend now to consult the Sydney Judges in the matter, indeed, after your conduct to-day, I question whether I ought not to refuse you absolutely.

Mr. Stephen. Either your former present decision is irregular: you have determined first one way and then another.

His Honor. Now, I refuse your admission absolutely.

Mr. Stephen. I will take further steps in the matter.

His Honor. Take what steps you please, you are not an officer of this court.

Mr. Stephen took up his bag to retire from court, and on some one's making way for him to leave by the Judge's private room, he exclaimed, "I have entered that room for the last time."

Willis J, 4 October 1842

Source: Port Phillip Gazette, 6 October 1842

His Honour on taking his seat said, on the last sitting of the court he had received a letter from a gentleman (Mr. Sydney Stephen), who had applied for and been refused admission to practice as a barrister in this court. It was only necessary to say, in reference to it, that he considered the explanation tendered altogether unsatisfactory, but even if it had been otherwise, Mr. Stephen's conduct while here was such that he should never become a member of the Port Phillip bar with the consent of the bench while he retained his seat upon it.


[1]  Sydney Stephen (the brother of Alfred Stephen C.J.) had been practising at the bar in Sydney for some time before this date. For example, he was counsel for the defendant in R. v. Murrell[1836] 2 NSWKR xxx.

On 17 December 1842, Stephen was struck off the rolls of the Supreme Court of Van Diemen's Land. See In re Stephen; Fisher v Thorne, 1842. The court found that he had sued for his fees as a barrister, and had disguised the fact. Despite that, the members of the bar at Sydney resolved to continue associating with Stephen, because the practice at Van Diemen's Land had been to allow barristers to practise also as attorneys. Stephen appealed to the Privy Council, which allowed his appeal in 1847. The Supreme Court's striking off order was rescinded. See In re Stephen, 1847.

The actions of the Van Diemen's Land Supreme Court and of Willis J. did not harm the career of Stephen in the long term. He was appointed to the Supreme Court of New Zealand in 1850, where he remained until his death in 1858. Biographies are provided by the Lost Cases Project and by the Encyclopedia of New Zealand.

Published by the Division of Law, Macquarie University