ME. G. E. BARTON ON SENIORITY AT THE BAR.

New Zealand Times, Volume XXXII, Issue 5015, 20 April 1877, Page 3

ME. G. E. BARTON ON SENIORITY AT THE BAR.

The following letter has been addressed y Mr. G. E. Barton to their Honors the Ch ef Justice and Mr. Justice Richmond : To their Honors the Chief Justice and Mr. Justice Richmond ;

In accordance with the request made to me by your Honors in Court on Wednesday, the 14th instant, I now state my views upon 'he question of pre-audience at the Bar, together with the grounds on which those views are founded.

A call to the English or Irish Bar confers upon the person so called the right to practice in any colonial court. This right has beer recognised in all the Australian colonies, in eluding New Zealand, but in New Zealand the courts have hitherto required members of the Home Bars to pass a preliminary examination in New Zealand law. I believe that even this restriction is one which it is beyond the powers of the colonial authorities to enforce. In an opinion of Mr. Solicitor General (afterwards Chief Justice) Eyre, published in “ Chalmer’s Opinions,” at page 401, your Honors will find the following words :—“They (the Colonial Legislatures, and a fortiori the Courts) cannot take away or intermeddle with the freedom of the Bar in relation to their clients, or their right of retainer.” Your Honors will find this opinion quoted in an able article by the late Mr. Chisholm Anstey, rear’ before the Juridicial Society on the 23rd December, 1868, and published in vol. 3 of that Society’s transactions. Now one of the “ rights of the Bar in relation to their clients’ is the right of pre-audience in court to the senior members of the Bar. The English Courts do not pretend to have any right of interference with the Bar in questions of retainer or pre-audience, as your Honors will find from perusal of the following cases : Anon (2 D.N.S., 929), Anon (7 Jur., 725 8.C.), Baylis v. Grant (2 M. & K,, 3161, Ex p. Elsee (1 Meat. 69), Taylor v. Clarke (13 Ir. C L.R. 571), Rex v. Barnard’s Inn (5 A. & E. 17), Rex. v. Lincoln’s Inn (4 B. & 0. 855), Ex p. Evans (9 Q.B. 279), Reg. v. Denbighshire J. J. (15 L, J., Q.B, 335); and your Honors

will also find from the perusal of the cases of In re Wallace (3t! L.J., P.C. 9), re Smith (3 Moore, P.C. 3GT), In re Dowuio {iO., Ill), that colonial courts have no power to deprive a barrister of any of his legitimate rights. I may state that in the colony of Victoria no preliminary examination is undergone by any member of the Horae Bar applying for admission ; there ho is admitted to practice upon production of his credentials. lam informed by a member of the Queensland Bar that no examination is required there, and I believe the rule to be the same in New South Wales, South Australia, Tasmania, and Western Australia. When 1 myself applied in 1892 to Mr. Justice Gresson, in Christchurch, for admission to

practice in New Zealand, Mr. Parsons, a member of the English Bar, a gentleman of considerable reputation at the Victorian Bar as a conveyancer and special pleader, applied at the same time for a similar purpose ; but upon Mr. Justice Gresson proposing to examine him he refused to submit to such examination, insisting that as a member of the English Bar

his Honor had no right to do more than satisfy himself respecting his (Mr. Parson’s) call to the English Bar. Ultimately Mr. Parsons, having no books to which to refer in support of his contention, submitted, but under protest, to a nominal examination. If it bo conceded that a member of the English Bar is entitled to practice here as of right, and I think the authorities I have above cited show that such is the case, then I submit as a necessary consequence that such barrister is entitled to take rank at the colonial Bar according to the date of his call to the English Bar. Mr. Travers seems to think that such a rule,

inasmuch as it would constantly disturb previously settled precedence, would therefore be inconvenient and unjust. To this I answer that it has not been so found in the other colonies. If Mr. Travers is right, the principle must he carried further than he himself carries it, and when he came from Christchurch to practice here, ho ought not to have disturbed existing precedences at the Wellington Bar. I think it must be conceded that if it be beyond the power of the colonial courts or Legislatures to prevent an English barrister from practising, neither can it be in their power to deny him his proper rank and status at the Bar, since such denial of pre-audience amounts pro tanto to an assertion of the power to deny audience altogether.

I will now refer to the rule laid down by his Honor Mr. Justice Johnston lately in Dunedin. He there, on the first day he sat, announced his intention to first call on whatever gentleman might happen to sit in the centre seat directly opposite the seat of his Honor, and afterwards to proceed with His further calls to right or left, as he might see fit. On that day there was a very full Bar, and I, the only member of a Home Bar then, present, and also the seuior member of the Otago Bar, was called upon last. When so called upon, I complained to Ids Honor that such a method of going through the Bar, and thus denying to me the only privilege theretofore given to seniority at this Bar was not proper, that it would ill become the dignity of the profession that gentlemen should be found each morning scrambling for the seat of privilege ; and that, independent of the existence of any legal right or of any settled rule, it would be a proper practice for the Court to follow, that those who had been longest in the profession, and who naturally were entrusted with the weightiest business, should not be compelled to stand aside while their juniors in ago and inferiors in business were moviii" their motions. His Honor Mr. Justice Johnston denied that any member of the New Zealand Bar had any right of seniority. He stated that lie had never recognised, and would not then recognise, any such right; and I may add that during the time he was in Dunedin, he always adhered to his practice of calling first on whomsoever he pleased. How this practice may have worked while Mr. Justice Johnston was presiding over the Supreme Court in Wellington, your Honors can best ascertain from the then members of the Wellington Bar. . I gather from my own inquiries that it worked disastrously. The feeling and opinion of the public can be gathered from one significant fact, viz., that the contentious business of the Supreme Court of this important province was altogether nil throughout his time.

For my own part, I beg most respectfully and emphatically to protest against such a practice as this being adopted. It can only be grounded on the assumption that the gentlemen of the New Zealand Ear have no rights or privileges whatsoever, except such as the Court before whom they practice may choose to concede. The adoption of such a rule would be to invest the presiding Judgo with a power to slight and humilitate any practitioner in presence of other members of the profession. The public are quick to notice such things. They would immediately conclude whoever was usually called upon first was favored by the Court, and that the one last called upon was the reverse —thus giving rise to the most odious, and, to a Court of Justice, the most disgraceful imputation. I hope my observations will at least convince your Honors that it is time a fixed rule should be laid down. It is quite as essential for the credit and character of the Court and its Judges, as for the dignity of the Bar. I can conceive nothing more fatal to proper respect by the public for the Courts of Justice than the existence of even the faintest suspicion of favoritism towards particular practitioners, and I take the liberty of placing this aspect of the matter before your Honors as a very strong ground for the settlement of the question without further delay.

I therefore submit the following propositions for the consideration of their Honors the Judges ;

1. Pre-audience is tho right of senior counsel, and it is therefore not in the power of any Judge to deny it to the senior counsel present. 2. Seniority dates from the call to the Bar, wherever that call may have taken place throughout the British Empire ; and inasmuch as a call to the English or Irish Bar confers upon the person called the right of practising in the colonies, the seniority of an English or Irish counsel should, I submit, certainly date from his original call in Great Britain, whatever may be the rule r laid, down for gentlemen admitted here from other colonies. 3. Even if proposition 2 be incorrect in its proposed order of precedence, it is inconvenient and invidious for tho Judges to act without some fixed rule of pre-audience. I desire in conclusion to say that, as the question of pre-audience of members of English and Irish Bars is a question affecting the rights of the Home Bar as well as such mem•hers of it as are practising in the British dependencies, I respectfully bog to reserve my right to dispute the propriety of any rule laid down that may operate to deprive the Home Bar of the rights which I claim for them in New Zealand, and which, so far as I «m aware, have never been questioned in any other colony but New Zealand.

George Elliott Barton, Wellington, March 22.