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Unreported Judicial Decisions of the Privy Council, on Appeal from the Australian Colonies before 1850

Willis v. Gipps [1846]

judge, amoval of

Judicial Committee of the Privy Council, 1846

Appeal from New South Wales

Reported as John Walpole Willis v. Sir George Gipps, Knt. (1846) 5 Moo. P.C. 379; 13 E.R. 536

Source: Printed Cases in Indian & Colonial Appeals, vol. 38 (kept in the office of the Judicial Committee of the Privy Council)[1]

Appeal Cases.  Willis and Gibbs. [sic] 1844-1846

C.O. Whitehall

August. 1. 1846.

            Sir,

                        I am directed by the Lord President of the Council to transmit to you for the information of Earl Grey a duplicate of Her Majesty's Order in Council of this day approving the Report of the Judicial Committee upon a petition of Mr. Justice Willis against an order of the Governor and Council of New South Wales, whereby this gentleman was removed from his Office of Judge in that colony.  You will perceive that the Lords of the Judicial Committee have recommended Her Majesty to reverse this order of amotion of the 17th. June. 1843. on the ground that some opportunity of being previously heard against the amotion ought to have been given to Mr. Willis by the Governor and Council, but their Lordships have likewise reported to Her Majesty as their opinion that the Governor in Council had power by law to amove Mr. Willis under the authority of the 22nd. Geo. III., and that upon the facts appearing before the Governor in Council & established before their Lordships in this case there were sufficient grounds for the amotion of Mr. Willis.  The Queen in Council has been pleased to approve of this report & to direct that Earl Grey is to give the necessary directions, which devolve upon the executive department of Her Majesty's Government, in conformity with this decision.

I have the honour

to be

Sir

Yr. obedt. sert.

1st. August. 1846[2]

Willis v. Gipps

Letter to Col. Office

with Duplicate

of Order.

"Her Majesty having taken the said Report into consideration, was pleased by and with the advice of Her Privy Council to approve thereof, and to order, as it is hereby ordered that the said Order of the Governor and Council of the Colony of New South Wales of the 17th June. 1843 be and the same is hereby reversed for the reason in the said Report stated and the Right Honbl. Earl Grey, one of H.M.'s Principal Secretaries of State is to give the necessary directions herein accordingly."[3]

Source: Minutes of the Judicial Committee, 1845-1853, vol. 3, p. 28 (kept in the office of the Judicial Committee of the Privy Council)

At the Council Chamber. Whitehall.

18th July. 1845

Present.

Lord President

Lord Brougham

Judge of the H Ct of Admirty.

Vice Chancellor Knight Bruce

"Upon hearing a motion by Counsel for an early day to be fixed for hearing this appeal set down exparte, The Lord President brought under their Lordships' notice the correspondence which has taken place on the subject between the Colonial Office and this department, & likewise the papers transmitted from the Colonial Office containing the Despatches & Minutes of Sir George Gipps, Their Lordships having deliberated on these documents gave it as their opinion that the case ought to be heard immediately after Michaelmas term, and that if no appearance be entered on behalf of Sir Geo. Gipps either by his own agent of by the Solicitors of the Treasury, their Lordships would hear the case exparte." 

[p. 36, 4 February 1846] Read, petition of agent of Gipps for further time.  Lordships laid it down for 15th April, with Respondent to communicate its case to Appellant by the end of March and pay the costs of the day.

[p. 77, 24 June 1846] At the Council Chamber. Whitehall.  Present: Ld President, Ld Chancellor, Ld Brougham, Sir Nicholas Tindal, Baron Parke, Chancellor of the Duchy.  Mr Secretary Gladstone sat at the board as a Privy Councillor. "Their Lordships heard Counsel for the Appellant."

[p. 78, 25 June 1846] same membership except Ld President.  "Their Lordships heard Counsel for the Respondent."

[p. 82, 8 July 1846] Same location: Present Lord Lyndhurst, Lord Brougham, Baron Parke, Chancellor of the Duchy of Cornwall.

"Their Lordships resumed the hearing of Counsel for the Governor of New South Wales, & for the Appellant in reply, and agreed to report to H.M. in the words following: 'We are of opinion that the Governor in Council had power by law to amove Mr. Willis from his office of Judge under the authority of the Statute 22nd. Geo. III. and that upon the facts appearing before the Governor in Council and established before us there were sufficient grounds for his amotion; but we think that the Governor and Council ought to have given him some opportunity of being previously heard against the amotion and that the order of the 17th. June. 1843. ought therefore to be reversed."

Notes

[1]         The whole of volume 38 is devoted to this case.  The following are some extracts from it, beginning with a handwritten but unsigned letter.

            Willis had the rare distinction of being amoved twice from colonial judicial office.  Volume 13 of the Privy Council's Printed Papers is called Upper Canada Papers.  Relating to the Removal of.  Mr Justice Willis 1829 (kept in the office of the Judicial Committee of the Privy Council).

The Appeal Book 1837-1876 (kept in the office of the Judicial Committee of the Privy Council) includes the following:

Whence 1844 NSW

Parties John Walpole Willis v Gov & LC of NSW

lodged 19/2/1844

Reference 4/3/44

Report - -

Approved [blank]

Soclrs App Gregson 18 Bedford Row

Resp Gregory 3 Jan 46

Observations: In the matter of Mr Willis' removal from the SC of NSW - Petition for relief lodged May 44 referred 19 June 44

[2]         On the back of the previous extract is the following.  Further in the volume is a note stating that the Judicial Committee of the Privy Council reported on the 8th July 1846.

[3]         This is a record of the decision of the Privy Council at Buckingham Palace on 1 August 1846, the Queen being present.

 

Published by the Division of Law, Macquarie University