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

Ebden v. Willis [1843]

trespass - false imprisonment - assessment of damages, mental injury - practice and procedure - witness, excusing of - Willis J, action against

Supreme Court of New South Wales, Port Phillip

Jeffcott J., 24 November 1843

Source: Port Phillip Gazette, 25 November 1843[1] 

His Honor took his seat at ten o'clock, when the following case came before a special panel, viz., Henry Arther , James Denny, Henry Condell, (foreman), Skene Caig , Alexander Broadfoot, Charles Barnes, James Graham, Mr. William M. Harper, Thomas Elder Boyd, D.S. Campbell, S.J. Brown, and Charles Bradshaw.

Mr. Boyd requested his Honor to excuse him sitting as a juror in the present case, in consequence of some ill feeling which existed between himself and the late judge.

His Honor replied, that he could not excuse him, unless counsel objected; but his very conscientious declaration was the best proof, that he would act without partiality. Mr. Williams, for the defence, concurred with his Honor.

EBDEN v. WILLIS

Mr. Williams moved that the evidence be taken down in writing; ordered.

Mr. Barry opened the pleadings, and stated that this was an action on trespass and false imprisonment, the declaration contained one count, and the damages were laid at £5000. The defendant pleaded the general issue, and a special plea of justification.

Mr. Raymond, for the plaintiff, addressing the Jury, said, they had heard from his learned friend who had opened the pleadings, the names of the plaintiff and defendant; he could assure them that he did not use common place language, or set frame of words, when he said, he felt unable to do that justice to the present case, which its importance required. In estimating the damages on such an action as the present, they were not only to consider the personal wrong, but all the circumstances connected with the transaction; they were also to consider not only the position in life of the party outraged, but also of the party committing the outrage; the publicity of the insult should be considered, and the damages assessed more by the mental injury than the personal wrong inflicted on his client. It was perfectly true, that a man might be so unfortunate as to be acquainted with such unpleasant companions as Sheriff's bailiffs, writs and sponging houses, and thus become callous to their effect, and even to imprisonment in such a jail as the jail of Melbourne, however, use was second nature, he had heard, and it might be said, as stated of his countrymen, that they didn't mind being hanged, because they were used to it, or that eels(?) by being skinned, became also used to it; such persons as were unused to injury, felt more than the mere actual wrong, and what was the injury done to his client; if he were to search the whole colony of New South Wales, and asked where he could find a man who would feel such an injury with the greatest poignancy , he would pitch upon his client; he was not speaking from his brief, but from personal knowledge of his well known integrity and equally well known unbending principles of independence, in carrying out which he had marked out for himself a new career, and having determined to abandon the luxuries of life, his hereditary right as the son of an independent and wealthy merchant, he became a wanderer in the Australian wilds; it was not necessary to follow him through his career as a settler, where he had earned for himself the highest opinion of all parties, by his spirit of enterprise and hospitality; considering he had achieved an independence; he returned to the world and fixed his residence in Melbourne. At this time the defendant arrived as sole Judge in this province; it was his (counsel's) painful duty, leaving out of consideration all recollections of his official connection with his Honor, to state the most minute particulars of the case, and the injuries inflicted by the late Judge, whose character should have been as spotless as the ermine he wore, in fact, as pure and spotless as the character of a British Judge. He (Counsel) had at first from ill health, intended to delegate his duties in the case to the acknowledged talents of his learned friend (Mr. Barry), but as that gentleman had already had considerable trouble in the matter, he considered he should share his labors; another difficulty arose in this action, and that was the absence of the defendant, but he would clearly prove, that it was not his client's fault, that the matter was not brought forward at an earlier period; he would now draw the attention of the Jury to a chronological order of the facts, which related to this case since the defendant's arrival in this district; if he were satisfied, to confine his statements to the mere actual outrage committed, they might think that they had an Oxford, or a McNaughton to deal with, and concluded him to be insane; he would protect the head of his Honor at the expense of his heart, and shew the malicious growth of this proceeding from its birth.

Mr. Williams contended that counsel was not authorized to make statements in aggravation of damages which he could not substantiate.

His Honor replied that he must necessarily place some confidence on the statements of counsel, and was unwilling to interrupt his address by doing so without sufficient reason.

Mr. Raymond had considered the matter fully, and would be able to put in evidence of malice on the part of the defendant. If he made any statement which he was unable to substantiate, it would act prejudicially for the plaintiff rather than otherwise, and the jury would be directed to wholly cast such statements from their minds when estimating the damages. The defendant, as all were aware, was gifted with no ordinary endowments, and embued with talents which an untiring industry, indeed almost to restlessness, kept continually in play, but being uncontrolled by the hand of justice, were calculated by his position to be of serious injury to the community; but it was probable he was led astray more by infirmity of temper than any pre-determined injustice, nor did he (counsel) believe that his Honor intended one tythe of the injury be inflicted. The first victim of judicial malignity was Mr. Arden, the editor of a local paper, from which the whole of the present circumstances arose. He would remind the jury that previously to this matter, the plaintiff and defendant were on terms of intimacy, of such a nature that the day the libel appeared the defendant sent for him, and had a conversation with him as to the libel published. The next day, Mr. Arden was brought up for the alleged libel on the defendant, to answer in vinculis certain interrogatories, when the plaintiff did dare to step in and tender bail for Mr. Arden. Mr. Ebden had then to undergo a most insulting examination by the court, as to the nature of his property and liabilities, and was fortunately enabled to give that answer which few others could have done with equal satisfaction to the court. This examination took place at the commencement of the monetary crisis, when public credit was tottering to its base, and few, with the exception of his client, could go through such an ordeal. To shew the animus of the defendant, he (Mr. Raymond) would give in evidence the reply of the defendant, when congratulated by an officer of his court on having "floored his opponent;" to which he answered, that "It was not half what he intended for him." Mr. Carrington was the next party who fell under the malice of the Judge, and was suspended, as a solicitor, from practicing in this court, and placed in custody. This gentleman sent his family to Sydney, and applied to the defendant to take and rent the house lately occupied by him (Carrington), previous to which there had been nothing but the most common acquaintanceship between the parties. Mr. Carrington, deprived of his family and his practice, was hospitably received in his former residence by the plaintiff, who was actuated by compassion for a fallen man, as also to protect those privileges from being trampled on by a person who had been sworn to uphold them. Carrington appealed to the Judges in Sydney , and forwarded thence a petition complaining of certain wrongs, which he had received at the hands of the Judge. [The learned gentleman proceeded to detail the circumstances of the service of the order of ce rtiorari on the Judge, and the conduct pursued by that functionary, which have been already before the public.] The following conversation took place on Mr. Ebden's being brought back into court, previously to his committal. His Honor said that the plaintiff had been guilty of contempt of court, by the expression of his look and manner ; he then directed the Deputy Registrar, Mr. Pinnock, to swear as to the looks of the defendant on leaving the court, when that officer swore that his features wore an expression of contempt, on which His Honor observed that he might think himself fortunate in not being sent to jail, to which the plaintiff replied, "As well might I, on being told for the first time in my life, that I may consider myself fortunate in not being sent to a common jail for a contempt, which contempt I have utterly disclaimed." He was prepared to shew the effect of this outrage in other parts of the world; and the poison would continue to rankle until the antidote was applied in the form of a jury's verdict. Shortly after these facts, Mr. Carrington had addressed a petition to the Executive Government, setting out the facts of his persecution, and tracing the malice through all its gyrations, and how like a wounded snake it had dragged its slow length along. [Here the reply from the Government was read.] The Government seemed to be of opinion that by consent of the defendant, any action brought by the plaintiff might be tried in Sydney. Mr. Ebden wrote to the Judge to know if he would appear; when, instead of receiving any reply, the bearer, Mr. Deane, who was plaintiff's solicitor, was told by his Honor that he was astonished that he (Mr. Deane) should dare to act in such a manner, that he would bring the matter before the Court, when it was most likely he (Deane) would be suspended, thus leaving the plaintiff without any remedy. The plea of justification was a most lame one; and well might the opposite counsel regret the absence of the defendant, who might have been able, by his legal acumen, to have assisted him in framing a better plea. The next question to be considered was, how in case of a verdict for the plaintiff, were the damages to be recovered, unless by tedious ulterior proceedings. The defendant had left the colony, but whether he had left funds or property to satisfy such damages, he had not been informed; but it was the moral influence which their verdict would have, that made his client look for exemplary damages. Particulars of the outrage had gone to the Cape of Good Hope, where the plaintiff's friends and relations resided, and had doubtless by this time proceeded to England, where probably at this moment the violator of his client's privileges was now laying a statement of his own grievances at the foot of the Throne, and perhaps claiming restoration to that office, from which the Government had very properly suspended him. The jury owed it to themselves and the community at large, to express by a verdict their sense of the injuries his client had suffered, and save them from the consequences of a re-infliction of similar grievances. Even-handed justice demanded exemplary damages at their hands.

Benjamin Baxter sworn. Proved that Carrington served certain papers on Mr. Justice Willis in a respectful manner, in which Mr. Ebden did not interfere further than saying, after the papers were served, "Come away, Carrington." There was no violence of gesture or menace on the part of Carrington.

Thomas Middenhall sworn. Was tipstaff of the Court in August, 1842; did arrest Mr. Carrington and Mr. Ebden on the 2nd of August, and brought them to the Melbourne jail; thinks the words used by the Judge, with reference to Mr. Ebden, were, "Take that man into custody;" did not hear the plaintiff make any observation.

George Wintle sworn. Is keeper of the Melbourne Jail, and refused to receive the prisoners without a warrant of committal, when Mr. Carrington replied, "It's all correct;" they were imprisoned about twenty minutes.

Major St. John sworn. Presided as a chairman of a bench of magistrates in August, 1842, when Mr. Willis charged Mr. Carrington with having assaulted him, by striking him with a bundle of papers; the charge was dismissed, and he (witness had occasion to reprove Mr. Willis, who accused Mr. Ebden of uttering a falsehood: Mr. Ebden did throw himself upon the protection of the Court.

J. D. Pinnock, Deputy Registrar, sworn. Was ordered by the Judge not to receive the papers from Carrington; the Judge, on leaving the court with him, said the tipstaff should follow him; Carrington followed his Honor, and respectfully requested permission to serve his Honor, who replied that if he wanted any business with him to come to him in court; saw the papers fall from the Judge's shoulder; when Mr. Willis gave Mr. Carrington into custody, he also gave Mr. Ebden, who was standing some five or six yards distant.

Robert Wilsmore sworn. Was clerk in Deane and O'Cock's office in 1842; Mr. Deane received upwards of £30, from Mr. Ebden for professional assistance on this occasion.

[We have not reported the evidence of the above witness in full, as it has already been before the public.]

The case for the plaintiff closed here.

Mr. Williams, for defendant, said it had been stated that the plaintiff had been insulted publicly, that was his complaint. Now, the plaintiff, while the defendant was occupying the high position of Resident Judge, had dared to have the audacity to insult him before the world, and now brought an action against him in his private capacity for certain acts performed by him in his judicial one. The complaint of his learned friend was the respectability of his client, that was his (Mr. Williams's) complaint. Mr. Charles Hotson Ebden was one who should have known better than aid and abet any insult upon his Honor. Mr. Raymond had brought before the Jury a biographical history of the plaintiff, and he then went on to say that the present cause being brought before the court in the absence of the defendant, was not his (plaintiff's) fault. This had been stated, but not proved, here he went further than his evidence substantiated. Neither was a personal service on the part of Carrington necessary. No, he was anxious to retaliate upon his Honor, and he was evidently guilty of this mean and low spirited attempt to degrade him. Had personal service been made on the other two parties, Snodgrass and the Chief Commissioner? No, but still it was necessary on the Resident Judge. Then came the fact of Mr. Willis's being served on the bench, and the demeanor of the parties. Mr. Ebden got up and says to his Honor, "I came here to protect my friend , Mr. Carrington," when he was ordered by the Judge not to interfere. Then they had the farce of Carrington's cool impertinence in touching his hat, which was a greater aggravation of the offence. The learned counsel concluded, after some time, by saying a verdict for the plaintiff would satisfy the public, and establish more fully the truth of the fact, that trial by jury was the pride, boast, and bulwark of the Constitution.

His Honor laid the facts of the case before the jury, and recapitulated the whole of the evidence. It did not appear that any notice had been served on the Resident Judge, nor had it been shewn that any necessity existed of serving him with such notice personally; neither had it appeared, from the evidence brought forward that day in court, that any request had been made by letter or otherwise; and it was not too much to say, that in his (Judge Jeffcott's) opinion, it was only an act of courtesy which might have been reasonably expected by his Honor. No application had been made to him to receive the service in open court, or in his private office, which was not too exorbitant a courtesy to be expected by a Judge. The first intimation that it appeared his Honour received, was from a person rising in open court when he was sitting on the bench, and addressing him, and he had papers to serve him with, would he receive such service? Mr. Carrington, the person who made this application, was a solicitor of this court; he was suspended by order of His Honour, and then appealed to Sydney and received an order, a copy of which it was necessary he should serve on Mr. Willis; he attended the court for this purpose, accompanied by the plaintiff, as before stated. From Baxter's evidence, it appeared that Deane had told Carrington a personal service was necessary. It was necessary that copies of writs should be served, which was generally done by some clerk or runner of the office, and he (his Honour) did not see why it should not have also been done in this case. The plaintiff did attend with Carrington, nor did it appear that it was difficult to procure an attorney to act in his behalf, such an admission would be a reflection upon the profession, if they would refuse to lend their advice or assistance to a party suffering oppression, either from the Judge or any other man; it was the duty of professional men, who were public servants, to do so. However, there was no evidence of this fact. It was true that Mr. Ebden had a right to accompany his friend, and many might think it a chivalrous and generous act to voluntarily expose himself to the indignation of the Judge, although it did not appear to have been a requisite proceeding, and certainly not a discreet one, but he had an undoubted right to do so if he thought proper. This ended the proceedings of the first day. If it was unnecessary to accompany Mr. Carrington on the first day, it was certainly more unnecessary to accompany him a second time, when the Judge was annoyed from the former conduct of the same parties. His Honour, on hearing the plaintiff say that he came forward as Mr. Carrington's friend , ordered him to leave the court, that his conduct was expressive of contempt. Strictly, and in point of law, there was no doubt but that the plaintiff was entitled to use these words, but it was only natural to suppose that a person previously annoyed on the same matter, would experience an aggravated annoyance on this repetition of Mr. Ebden's; but if a court of justice was to be made the arena for the display of personal feeling, it would soon cease to command the respect of the community. A presiding Judge had the power, if any person should interrupt the business of his court, to order such person to be removed, but he had, perhaps, no right to shield himself personally from such an attack as this; there was other places in which this service could have been made, and the course adopted was certainly unseemly; the plaintiff, it appeared, had been called back by order of his Honor, who considered that he had left the court in an insulting manner, which Mr. Ebden explained, by saying, that he had no such intention. Mr. Baxter had sworn, that on the following day he saw Carrington act with respect towards the Judge, and from the evidence, there was no doubt but that he did act with propriety on this second occasion, and there could be no reason why his civil request should not have received an equally civil answer; but it appeared the defendant rushed into court and slamming the door after him, and immediately ordered the Sheriff to open the court; there was no reason why the defendant should have avoided the service, and if Carrington was decidedly under the impression that his Honor should be served personally, and was told that it was contempt to serve the Judge in court, there was no reason why he should not attempt to serve him when off the bench, nor was there any reason why his Honor should not have given every facility to the receipt of a legal process; he might have told him to have left the service with the officer of his court. Again, as to the appearance of Ebden and Carrington in the street, the Judge came out of the court accompanied by Mr. Pinnock, and the Tipstaff of the Court, (the circumstances of the attempted service was detailed by his Honor.) It must have been evident to all parties at this scene, that an exhibition of feeling existed on both sides, not creditable to either party, and instead of instructing the Deputy Registrar to accept service, the very discreditable scene ensued of one party watching another, although at the same time the wish to humiliate the Judge was evident. After the papers had fallen on the shoulders of his Honor, both Mr. Ebden and Mr. Carrington were taken into custody, and imprisoned in a common jail; they were then taken before a bench of Magistrates, on the complaint of the Judge, charging them with an assault which charge the Judge subsequently withdrew. With respect to the powers vesting in Judges, the law was strong, and the protection also, which was thrown round Judges of a court of record. (His Honour here read the opinion of Lord Tenterden, as to the protection which is afforded to Judges of a Court of Record.) If the Jury thought that what had occurred with respect to the trans action, was merely the service of the summons, and that no? disrespect or assault was intended, then it was for them to consider what power the Judge had to commit the plaintiff. Was it to be held that a Judge out of his court, and walking like any other private individual, could even if personally insulted, order the person so acting into custody.

The Jury requested permission to retire, and after an absence of nearly one hour, returned a verdict for the plaintiff of forty-two shillings.

Mr. Williams moved an arrest of judgment, and objected to the verdict being place in the records of the court, as such verdict had been given by a Jury who had separated.

The Court admitted the validity of the objection. The learned counsel said he would consider the propriety of moving for a new trial.

Notes

[1]  By this time, Willis J. was no longer in office, but his conflicts with the legal profession and newspapers of Melbourne continued to be litigated in the court of his successor, Jeffcott J. This case is linked to R. v. Arden [1841/2] NSWKR xxx, and Re Carrington [1842 ] NSWKR xxx.

Published by the Division of Law, Macquarie University