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Decisions of the Nineteenth Century Tasmanian Superior Courts

In re Stephen, 1842

Fisher v. Thorne

legal practitioners, unprofessional conduct by barrister - Stephen, Sydney, struck off the Rolls of the Court - legal practitioners, separation of profession - Privy Council, appeal to

Supreme Court of Van Diemen's Land, In Banco

Pedder C.J. Montagu J., 17 December 1842

Source: Hobart Town Courier, 23 December 1842[1]

            Their Honors appeared on the Bench for the purpose of delivering their decision in the case of Messrs. Stephen and Fisher. The whole of the members of the Bar were assembled on the occasion.

            His Honor the Chief Justice enquired of Mr. Stephen whether he wished to address the Court, as his observations must then be considered as final. Mr. Stephen rose for that purpose, and, supporting his position by a reference to various cases somewhat analogous entered on an explanation of the circumstances as detailed in the various affidavits. The learned gentleman, unable as he felt himself to detect in his conduct anything that could be made to savour of moral impropriety, could not anticipate a legal condemnation.

            Mr. Fisher declined offering any observations.

            His Honor the Chief Justice would be as brief as possible in the delivery of the grounds on which he had arrived at the decision which he was about to declare. On the subject of that portion of Mr. Stephen's affidavit, in which it was set forth that he had taken an acceptance in payment of certain fees, it must be evident to all who were conversant with the customs of the Bar, that such conduct was unprofessional in the extreme. An attorney was always the channel through which the barrister received remuneration for his services; and so determined was the law to preserve that custom, that it was made incompetent to a barrister to institute an action for the recovery of fees; neither was a client held as bound, either in morals or in conscience, to liquidate the claim of his counsel. True it was, that in some particular cases, of but rare occurrence, and those of a private nature, it might be deemed advisable, for the sale of delicacy, to dispense with the intercession of an attorney; but, in all other instances, the rule was distinct and universally attended to. Mr. Stephen knowing that the action could not be entertained in his own name, had persuaded Mr. Fisher to become the ostensible plaintiff, when he determined on suing for the value of those acceptances which had remained unpaid. Here was manifest deception; for, had the first originated in a mistake, it would have been rectified as soon as possible. Far from such having been the case, when the pretended plaintiff was nonsuited for want of the required notice, the defendant was required not only to pay the bill, (for the amount of which he could not legally be called upon,) but also the costs of the action? It was always understood that an endorser should, at least, receive timely intimation of the bill having reached maturity before resorting to the remedy by legal process. It had been shown at the trial of the case, that the proper notice had not been conveyed to Mr. Thorne, and, in the face of that fact, it was surely sufficient to exact from him the amount of principal and interest without claiming costs. Practices such as those should never receive countenance at His Honor's hands. On the first day of term after the issue of the trial, Mr. Stephen had made a motion for a new trial in the name of his assumed client Mr. Fisher, and without the most distant allusion to the fact of his being the individual really interested in the matter. The farce had been kept up from sitting to sitting, during which their Honors were giving themselves the greatest trouble in endeavouring to ascertain whether they could comply with the motion consistently with the ends of justice; nor was it by any but the merest chance that the affidavit contradicting the tenor of the others had been discovered. Had their Honors been acquainted with its existence at the time the motion had been brought forward, they would at once have scouted the attempt. His Honor had much to complain of in having been kept in ignorance of the most important features of the case. Mr. Stephen had, certainly, excused himself by saying that it was not his intention to keep back the particular affidavit of which the Court must have had cognizance; but, even were such the case, Mr. Stephen's conduct towards the Court was not the less reprehensible. The deeper the research made into the minute of the question; the more aggravated did each and every point appear; morality - honour - common rectitude, were set at defiance, and a scheme of trickery and fraud found to pervade the entire issue. His Honor hoped that he would not be considered as over refined in his motions of right and wrong, but that the feelings by which he was actuated to the painful task would be comprehensible to the common sense of every one. He had certainly lost all confidence in Mr. Stephen, and, such being the case, it could not be expected that he could with any degree of satisfaction (His Honor meant in the furtherance of justice,) again behold Mr. Stephen at the Bar of that Court.

            As far as Mr. Fisher was concerned, His Honor had, at first sight, hoped to have had it in his power to make a distinction in his favour; but seeing, as he did, how forward he had been in this work of contemptible trickery, the same decision must attach to himself as had just been expressed with reference to Mr. Stephen.

            Mr. Justice Montagu's remarks then ran to the following purport:-

            There cannot I apprehend, be a question on this subject, and entirely concurring, as I do, in every observation which has fallen from His Honor the Chief Justice, I shall not again touch on the points referred to by him, but comment as briefly as possible on others which appear to me worthy of notice.

            [Mr. Stephen here rose from his seat and left the Court.]

            The constitution has found it expedient to divide courts of justice into two distinct portions; the judges who constitute the Bench, and the Bar, on whom devolves that most responsible of duties, - the advocacy of the interests which litigate for the time confide to their care. Did the constitutional laws of our country, in sanctioning the admission of members of the profession, consider the likely pecuniary advantages to be derived by these gentlemen? No - certainly not; but, contemplating that nothing except honour, integrity, and undeviating morality could fit any one for the discharge of so important a trust, it was thought advisable that the judges should be surrounded by gentlemen in whom they felt the firmest reliance, and who, endowed with these indispensable characteristics, might aid them in their researches for the ends of justice; at the same time, that by a knowledge of the prescribed forms, they might contribute to expedite business which would be retarded and infinitum, were each litigant to appear in advocacy of his own case. Another reason looked upon as showing the value of counsel, is that a barrister, as disinterested in the matter at issue, would be more likely to bestow on the question that share of dispassionate investigation without which the objects of justice must, in a great measure, be frustrated.

            So soon, therefore, as circumstances arise to shake that confidence in an individual belonging to the profession, from that moment are the primary intentions, held in view in the formation of courts of justice, contravened; and it immediately becomes the duty of his colleagues to wish for that examination on the part of the Bench, which may have the effect of removing the stain which is thus attaching itself to the whole cloth. Indeed, so punctilious is the law in her estimation of the honorable feelings which should actuate a barrister, that it is not provided that he should receive any remuneration, but, unbiassed by any idea of gain, he is expected to exercise his talents for the best good of the parties by whom he is employed, and who are led to repose that confidence in him, solely through a reliance on his proper sense of rectitude. As, however, every man is entitled to remuneration for his services, it is customary that the pecuniary arrangements should be entered into by the attorney, who hands over to the barrister that fee to which he is entitled; but in the event of the client's failing to liquidate his debt to the barrister, the latter has no remedy in law, since it would be sufficient for the defendant in an action brought for the recovery of any such amount, to show that the liability is owing to the professional capacity of the suitor, for him, at once, to obtain a verdict in his favour. None but the attorney is recognised as able to sue in such cases. How different, then, from the spirit of these constitutional precepts has been the course followed by Mr. Stephen! He had, I perceive, left the Court; which I the more regret, as he might, if present, have corrected any misapprehension on my part, of the facts connected with this case, into the particulars of which I am about, presently, to enter more at length; besides Mr. Stephen may perhaps believe me to have uttered - in the remarks which I shall feel it my duty to make - that behind his back which I would not have stated in his presence! How contrary, I repeat, to the intentions of those who originated courts of justice on their present footing, has been the conduct of Mr. Stephen! Not only has he placed himself in contest with his client by accepting bills of exchange in payment of a fee, (which is, in itself, totally at variance with what I have always seen done at home, when a barrister will not, except on very special occasions, see a client in the absence of the attorney,) but he has even exacted an additional security in the endorsement of a farmer named Thorne? How highly contemptible are such practices when followed by a professional man! Nor was this all: Mr. Stephen, finding it difficult to obtain the money, received a horse in lieu of it. Privately questioned on his point by His Honor the Chief Justice and myself, he, however, blandly denied having been connected in the transaction, and mentioned the name of Mr. Dyne as the attorney by whose hands the matter had been arranged; and yet, on a subsequent occasion, he has owned that he did take the horse in part payment! Can conduct such as this, I ask, be qualified under any more lenient definition than that of a gross moral perjury? There are several other grounds for condemnation of Mr. Stephen's conduct; in the first place, an attempt has been made most cruelly to deceive His Honor the Chief Justice and myself. I say "most cruelly," because, relying implicitly on the honourable feelings and the veracity of the gentlemen of this Bar, it has been my constant practice, in those communications which (though they may not transpire to the public, are constantly being held between the Bench and the Bar) I have found it incumbent on me to enter upon, with unerring confidence have I relied on whatever the statements made to me by the learned counsels acting on those occasions; nor have I ever, up to the present moment, had cause to repent the unmeasured good opinion which has thus been entertained by me for these gentlemen. Much has been said against the honour and integrity of the Colonial Bar, but I take the present opportunity of avowing that, with but one or two exceptions, I have, during my judicial career, experienced the satisfaction of beholding in the members of the legal profession of Van Diemen's Land, feelings of honour as intact and manners as courteous as could be expected in any other part of the world. When the trial came on before me, in which Mr. Fisher appeared as the plaintiff (though in reality Mr. Stephen was the suitor,) the latter stood up as counsel for the assumed plaintiff; and not a word escaped him in his address to the jury implying that he had the least private interest in the matter at issue. The plaintiff was non-suited on account of the want of the prescribed notices, and at the next sittings in banco, Mr. Stephen, not satisfied with his first attempt, made a motion that the execution be stayed, and that a new trial be granted. Here again His Honor and myself have been imposed upon; had we for a moment dreamt of the existence of the withheld affidavit, not an instant would have been wasted in the consideration as to whether the motion should, or should not, be complied with. Amids6t the numerous and lengthy argumentations which took place on this subject, not a word escaped Mr. Stephen's lips in allusion to the conflicting affidavit. An attempt has been made at palliation, in the statement that he did not wish to hurt Mr. Rowland's feelings; and that for such reason alone he had not referred to it. I state, upon my honour, that I do not believe Mr. Stephen to have been actuated by any such feeling of charity; he had an eminent reason for withholding the affidavit. At all events such a consideration would have been misplaced, since it behoves every member of the Bar to act with uprightness and candour, discarding every calculation of the feelings of others. The excuse appears to me to have been hatched for the sole purpose of covering iniquity and treachery the most culpable. If Mr. Rowlands, had, in the execution of his duty, swerved from the right path, it would have been imperatively incumbent on every one to have solicited the same scrutiny of his conduct which is now being made on that of others. I say, that if the Bench cannot place reliance on the members of the Bar, but is to be cheated as in the present instance, let the Bar be broken up, and suitors personally appear before me; such would be far more desirable; for should the Court, in one instance, sanction any encroachment on what they know to be the necessary characteristics of the profession, it would be difficult to affix a barrier for the future. Surely it would have been better, had Mr. Stephen remained to hear the grounds of a decision which must so materially influence the prospects of his family. Obliged though I find myself, to give utterance to those feelings of indignation, which cannot but be aroused by the contemplation of conduct so unprofessional. I should have endeavoured to refrain from using expressions more hurtful to him than the peculiar nature of the matter must demand. That the subject must be indeed painful to him I readily conceive, when fancying myself in his situation; and, for my own part, I can safely state, that the duty which is now devolving upon me is the most distressing that I have ever had to fulfil - consigning one, my equal in intellect and in his position in the world, together with his wife and family, to that gloom which let him dissipate if he can. Amongst the various surmises which have arisen in my mind relative to the reasons which prompted Mr. Stephen to expose himself to a detection, which would have been avoided had he allowed the first trial to end the matter, is one which appears to me the most reasonable viz. that he well knowing that an execution might at once be served for the recovery of the costs, and that a single hour might consign Mr. Fisher, his abettor in the transaction, to jail, felt unwilling that such a visitation should fall upon him, and being perhaps without the means of putting Mr. Fisher in possession of the amount, hoped, by his motion for a new trial, to stay the execution, and obtain further time. The third affidavit is nothing short of a tissue of trickery and fraud, and seems to have been so drawn up as to admit of a construction on either side. A person some yeas hence taking up this document, as appearing on the records of the Court, would, if unacquainted with the whole threat of the matter, find it impossible to detect the reason of the Bench for their punishment of the dereliction; their steps would be held up as savouring of harshness and injustice; and whilst it will be bandied about by aggrieved parties, that the bar of Van Diemen's Land is the most depraved of any under the British constitution, the assurance will be added that the Bench is privy to their imputed nefarious practices. The contemplation of such an object is, I contend, a gross violation of principle, honour, truth, integrity, and those feelings which are looked for in the breast of persons standing in the position of Mr. Stephen, and, as eminently destructive of confidence between the Bench and the Bar, deprives him of every claim to continue in the discharge of the responsible duty of advocate in a Court of Justice, If, in the face of facts such as these, there be any member of his bar who would say - "Mr. Justice Montagu, let Mr. Stephen continue at the counsel table as a man of honour and unblemished integrity," with that man I hold no fellow feeling.  No less than five palpable untruths appear in the affidavits signed by Mr. Stephen, and these are endeavoured to be made good by six equally gross misstatements on that of his son's. If the words, "untruths" and "misstatements" be thought too severe, let any other expression more grateful be sought to convey the meaning; but, for my part, I can see no difference whatever be the epithet resorted to. It recurs to me that on a former occasion I used the words "detestable falsehood," which may have been construed into a want of christian charity on my part. Regretting that I should be under the necessity of thus strongly expressing my opinion on the subject, I maintain that "falsehood," whatever be its hue, is ever "detestable," neither can the words be properly held to denote, on the aide of the one using them, any departure from the dictates of charity. It is not to be supposed that judges, because such, can ever hold so complete a command over themselves as to appear unactuated by the feelings of human nature; on the contrary; it behoves them to check every deviation from that honourable path which constitutes the only sure one towards the attainment of justice. Distressing though it be to visit the dereliction with so summary a punishment, what alternative is there left? To suspend Mr. Stephen with a reprimand? I had thought of that course; but maturer consideration has led me to the belief that to do so would only be an evasion of those strict principles, which the Court is bound to maintain. What is intended by the suspension of a legal practitioner? Suppose, for instance, that Mr. Stephen were precluded from making his appearance at the Bar of his Court during the next twelve months - what would be the result? It is contemplated in the case of a young practitioner that a temporary suspension may have the effect of checking unprofessional conduct for the future; but that hope must prove ephemeral when applied to one whose experience must long since have taught him the value of honour and uprightness. It is my firm belief that a man who, at the age of forty or fifty, whose proof of moral turpitude, will bear that propensity with him to the grave; neither can I be so Quixotic or so Utopian as to anticipate better things in the present instance. The remarks which I have made with reference to Mr. Stephen apply equally to Mr. Fisher, with this difference, however, that the latter has no doubt been the dupe of his friendly feelings towards the former; but although I incline to greater sympathy for him on that account, yet it cannot be urged as an excuse for his weakness. Not only did he lend his name as plaintiff in the original action, but following up the course of deception, he has signed a subsequent affidavit, the import of which must have been seen by him to convey an assertion (of his being the real suitor) diametrically opposed to wha6t he well knew to be the state of facts. As an excuse for such flagrant impropriety, he cannot plead his youth, since, from his very boyhood, he has no doubt been impressed with the value of that truth which he has on the present occasion so boldly violated in making himself a party to trickery so reprehensible.

            His Honor the Chief Justice then instructed Mr. Sorell (the Registrar) to erase the name of Messrs. Stephen and Fisher from the Rolls of the Court.

            Mr. Rowlands begged to assure their Honours of his innocence in the matters mentioned by Mr. Stephen, to which His Honor the Chief Justice replied, by assuring Mr. Rowlands that the Bench entirely exonerated him of any knowledge of the points referred to.

Source: Hobart Town  Advertiser, 28 February 1843

[From the Sydney Herald, February 16, 1843]

To Mr. Therry and W. A'Beckett , Esquires,

Attorney and Solicitor-Generals

            Gentlemen - On returning to this Country, under the painful circumstances which have compelled me to quit Hobart Town, I feel it to be a duty, no less to myself than to you and the highly honourable body at whose head you are placed, and to which we alike belong, the bar of New South Wales, that I should formally apprise you and them of these circumstances.

            On certain grounds, which the enclosed report ( Colonist newspaper of the 23rd ultimo) will fully explain, and on which I shall abstain from offering any comment, I have been disbarred by the Van Diemen's Land Judges. To these grounds I earnestly invite the attention of yourselves and the profession. The affidavits on which the Judges acted are contained in that report; and so are the addresses delivered by their Honors on that occasion. Form them every fact bearing on the case (notwithstanding the seeming complication which attends it) will be easily collected.

            In a small community, where prejudices are easily excited, and enmities extend to a fearful length, an unbiassed opinion, on topics, such as the present, can hardly be expected; and the expression of an opinion on them, in my favour , would be attended with consequences much too serious to be voluntarily encountered. This great Colony, however, fortunately, is exempt from such disturbing influences; and here I may rely on obtaining an impartial and calm decision.

            To that decision I appeal to the fittest, and most appropriate, tribunal; to the experienced, learned, intelligent, and able bar of Australia . I entreat of them, through you, an early consideration of judgment and sentence pronounced against me, and that looking fairly at the reasons assigned for that sentence, you, and they, will determine how far it affects my position among you - whether, in fact, you deem my character, or honour , as a barrister, at all impaired.

                                    I am gentlemen,

                                                Your faithful servant,

                                                            SIDNEY STEPHEN.

            Sydney , January 23, 1843



                        Court House, Sydney,

Feb. 14, 1843


            SIR, - In compliance with your request we have to inform you that we convened a meeting of the bar, to consider the matters referred to in your letter, and we now have the pleasure of inclosing you a copy of the resolutions passed at such meeting, which, as you will observe, was attended by all the members of our bar, with the exception of Mr. Gordon, who excused himself on the ground of his recent arrival in the colony.

                                    We have the honor to be,

                                                Yours, very obediently,

                                                            R. THERRY,


                                                            WILLIAM A'BECKETT



            To SYDNEY STEPHENS, Esq.



            At a General Meeting of the Bar of New South Wales, held February 8, 1843, at the Chambers of the Attorney-General, present:-

                        The Attorney-General                            The Solicitor-General

                        Mr. Jeffcot                                            Mr. Kerr

                        Mr. Forster                                           Mr. Manning

                        Mr. Purefoy                                           Mr. Windeyer

                        Mr. Donelly                                           Mr. Clerke

                        Mr. Broadhurst                          Mr. Darvall

                        Mr. Hustler                                            Mr. Callaghan

                        Mr. Gore                                               Mr. Michie , and

                        Mr. Fisher                                             Mr. Lowe


            It was unanimously Resolved:-

            1st. That upon the request of Mr. Sidney Stephen, formerly, and now, a Member of the Bar of New South Wales, this Meeting do take into consideration a report contained in the True Colonist newspaper, of December 23, 1842, purporting to be an account of certain proceedings, terminating in the prohibition of Mr. Stephen from practising as Barrister, or Attorney, in the Supreme Court of Van Diemen's Land.

            2nd. That, assuming, on the assurance of Mr. Stephen, such report to be substantially correct, and adverting to the fact of Barristers in Van Diemen's Land being at liberty to practice also as Attorneys, this Meeting, on full consideration of the said report, are unanimously of opinion that no sufficient grounds are therein disclosed, to prevent the Members of New South Wales Bar from associating with Mr. Stephen as a Barrister of their Court.

            (Signed)                        R. THERRY


            (Signed)                        W. A'BECKETT



[1] Stephen appealed to the Privy Council, which allowed his appeal and restored him to the rolls.  See In re Stephen, 1847.  See also True Colonist, 23 December 1842; Hobart Town Advertiser; 20 December 1842.

Published by the Division of Law, Macquarie University and the School of History and Classics, University of Tasmania