[2006] ANZLH E-Journal PLUNKETT’S DISAPPOINTMENT: THE REVELANCE OF CATHOLICISM TO A JUDICIAL APPOINTMENT TO THE NEW SOUTH WALES BENCH IN THE 1840s Tony Earls* Prior to the introduction of responsible government in 1856, New South Wales had three Chief Justices, successively; Forbes, Dowling and Stephen. The Crown appointed Forbes on the advice of the Colonial Office in London. With the appointments of Dowling and Stephen, the Colonial Office looked to the advice of the Governor of New South Wales to make an appointment from within the local legal profession. Although William Burton challenged Dowling’s claim to succeed Forbes on a question of seniority, it was the events that led up to the appointment of Stephen, involving two highly credentialed and ambitious candidates, that first tested substantial questions as to rights of precedence and other factors relevant to the appointment. It need hardly be said that the appointment was, and is, a prestigious and important one. However, in order to consider the implications of an appointment, it is useful to attempt to explain why. For the individual, it is the pinnacle of any legal career, affording status and power in their own time and posterity thereafter. In the first half of the nineteenth century this was particularly true when it came to questions of social and governmental rank.1 Amongst other things, a Chief Justice might expect a knighthood following appointment as Chief Justice. As a force in society, the primary influence of a Chief Justice relates not only to the judgement of major cases, but to the administration of the courts, the keystone of the legal system. Of equal importance is the Chief Justice’s role in protecting the integrity of judicial independence. This vital reality was established by New South Wales’ first Chief Justice, Forbes, in his refusal to bow to the dictates of Governor Darling. In the decades before responsible government this judicial independence had possibly an even greater importance, in the light of a compelling argument that the courts of that time provided a valid forum for quasi-democratic expression that was not otherwise available to large sections of the colonial populace.2 *Legal practitioner, Sydney 1 The extent of this is not fully reflected in the salary scales of the time. The following salary levels may provide some context with respect to the various legal offices that came into play during a ‘game of musical chairs’ that was relevant to the judicial appointments which are the subject of this paper: Chief Justice - £2,000 per annum, Puisne Judge - £1,500 per annum, Attorney General - £1,200 per annum, Solicitor General - £800 per annum, Commissioner Court of Requests - £1,000 per annum. (Figures from 1845 Estimates, as published Sydney Morning Herald 23 July 1844). 2 See, D.Neal, The Rule of Law in a Penal Colony (Cambridge University Press, 1991). 1 Perhaps of lesser importance is the symbolic significance of who occupies the position of Chief Justice, or what section of the community they are associated with. This has rarely been an overt consideration because of conservatism. This conservatism is inherent partly because stable government lends itself towards the predicability of a status quo with respect to senior non-elected positions, and partly because historically the senior levels of the legal profession (from whom a Chief Justice must be drawn) have tended to come from the same, or similar, sections of the community (perceived Anglo-male Christians, with an upper class or aspiring middle class financial status). It is only on the rare occasions when someone who has been perceived as coming from a different mould, such as Isaac Isaacs,3 has been a contender that the appointment has had any symbolic significance as an expression of social trust and establishment pluralism. One would be hard pressed to make a viable case that such symbolic significance has ever been a significant factor in favour of the selection of any Australian Chief Justice. It is somewhat easier to demonstrate that in some instances it has been a factor relevant to exclusion from the position. John Hubert Plunkett was one of the first persons to benefit when the Catholic Relief Act was passed by the Westminster parliament in 1829. Prior to the Act, the fact that he was a Roman Catholic would have rendered him ineligible for the position of Solicitor General to New South Wales. His appointment to that post marked the first appointment of a Catholic to a position of high office in Australia. In Ireland, the young Plunkett had been a dedicated member of the Catholic Association’s campaign that brought about that Act of Catholic Emancipation. It had been that campaign that had inculcated in Plunkett the values of equality before the law that were to be the hallmark of his career. He had a close association with the leader of the Catholic Association, Daniel O’Connell, and O’Connell had exercised his political influence to obtain the position in New South Wales for Plunkett. In doing so, O’Connell had predicted that one day Plunkett would become the Chief Justice of the Colony.4 On his arrival in the colony in June 1832, Plunkett found the conduct of the government’s legal business in a shambles. Foremost amongst his difficulties was the burden of covering for the, then, Attorney General, John Kinchela, whose capacity was limited due to deafness. Plunkett effectively undertook the work of two men, and he claimed the strain of those early years nearly broke him.5 In 1836, when Kinchela was elevated to the bench in the reshuffle that followed the retirement of Chief Justice Forbes, Plunkett, at age 33, was 3 Isaac Isaacs, Justice of the Australian High Court 1906-1936, as Chief Justice 1930-1931, the son of a tailor of Polish–Jewish origins. 4 . In a letter to, then, Solicitor General Plunkett, O’Connell alluded to the future he saw when Plunkett should reurn to Ireland: ‘When you come to see your friends having sat some years with credit to yourself and benefit to the Colony as Chief Justice you will I trust find Ireland as she ought to be’. Letter, dated 19 September 1932, to be found in, Maurice R. O’Connell (ed), The Correspondence of Daniel O’Connell, (Dublin: Irish University Press for the Irish Manuscripts Commisssion, 1972-), Letter 3340. 5 J. N. Molony, An Architect of Freedom: John Hubert Plunkett inNews South Wales 1832-1869 (ANU Press, 1973) p.13. 2 formally appointed Attorney General. At that age it might be fair to presume his ambitions did not end there. Plunkett’s virtues were appreciated not just in Sydney, but in the Colonial Office in London. In 1841 he took leave and returned to Ireland, ostensibly to settle some family affairs. During the course of that visit he worked in the Colonial Office and advised on the constitutional reform to be brought about by the 1842 New South Wales Act.6 Although he was on leave, there was some doubt as to whether he would return to NSW. He seems to have enquired about the possibility of a position ‘at home’.7 It seems unlikely that anything suitable was offered to him, for he returned to the colony in August 1843. Within a year of his return, Chief Justice Dowling unexpectedly retired as Chief Justice due to ill health, and died shortly thereafter. The acknowledged leader of the Bar, Plunkett first led the tributes to the Chief Justice, and then staked a claim to the vacant position. However, he had a rival. Alfred Stephen, who had been on the Supreme Court bench as a judge since 1839, also applied for the position. In order set the contest that followed in context, it is necessary to recall some judicial machinations in the years leading up to Dowling’s death. In 1839 there was a three-man Supreme Court Bench of Dowling, Burton and Willis. When Burton took a lengthy leave of absence, Plunkett was offered a temporary Judgeship. He declined, ostensibly on the basis that too many criminal cases and the Attorney General’s legislative programme would be disrupted for the sake of what was only a temporary position. This does not seem unreasonable given his request for a leave of absence had been deferred for the same reason. Alfred Stephen was prevailed upon to take the position instead. In 1841, while Plunkett was on leave, Stephen’s Judgeship was made permanent. This appointment followed the relocation of the irascible Willis as Resident Judge to Port Phillip in 1840. Burton returned to make up the threesome on the Sydney Bench, but left again in 1843, to take up a position in Madras. John Nodes Dickinson was sent out from England as Burton’s replacement. It appears that pending Dickinson’s arrival a temporary Judgeship was again offered to Plunkett and declined, and at Plunkett’s urging the local Solicitor General, William à Beckett, took the post. Meanwhile in Melbourne, Willis’s eccentric conduct caught up with him, and, in June 1843, he was dismissed by Governor Gipps. William Jeffcott replaced Willis in Port Phillip, but when Willis appealed against his dismissal to the Privy Council, Jeffcott formed the remarkable apprehension that he and his judgements might be ruled invalid, and, in December 1844, resigned. Roger Therry, the long-standing Commissioner of the Court of Requests, agreed to fill the breach in Port Phillip, again as a temporary judge, pending Willis’s appeal. 6 Molony, p.42. 7Molony, p.48. 3 It is hard not to have some sympathy for Gipps as he tried to manage his limited legal resources.