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Imagereal Capture JOHN WALPOLE WILLIS: FIRST RESIDENT JUDGE IN VICTORIA (a) Introduction John Walpole Willis was the first resident Judge in the district of Port Phillip of the Supreme Court of New South Wales, on its extension to that district. A controversial, sometimes eccentric man, he opened the . first sittings of the court on Monday, 12 April 18411 and held office for just over two years. During that period, he polarised the small Melbourne community, alienated the entire legal and executive establishment, and brought disrepute on himself and his court. He created such controversy and opposition amongst infiuential sections of the community, that Governor Gipps, acting on numerous complaints, removed him from office in June 1843.2 I The traditional view of Willis supports this dismissal. Contemporaries and subsequent writers considered him an argumentative, volatile and cantankerous man, both on and off the bench, a man Ewlhose habitual sarcasm is unbecoming, whose facetiousness is indecorous, whose domineering is improper, whose fidgeting is a sign of censurable irn- patience and whose system of 'summing up' is partial to the last degree.3 This writer, however, considers this view to be grossly unbalanced, if not erroneous, and that Willis's judicial career, far from warranting sum- mary dismissal, deserves some recognition, if not acclaim. Willis posses- sed a brilliant, scholarly mind, sound legal knowledge and was imbibed with the highest ideals of a judge's role. He had a highly developed sense of justice and unquestionable professional integrity. He was impartial? hardworking, a stickler for punctuality and court procedure, and was lauded for 'fearless independenceY5and 'wisdom and integrity of judicial decisions . unwearied assiduity, unflinching firmness, and unbending independence in effecting substantial justice'.6 He thus enjoyed consider- 1 Port Phillip Gazette, 14 April 1841, 3. The Supreme Court of Victoria was not created as such until 1852. See Woinarski, The History of Legal Institutions in Vic- toria ( 1942) 3 11-53, for a detailed account of its foundation. 2 Willis was removed by an order of the Governor in Council, dated 17 June 1843: Gipps, Letter to Stanley, 27 December 1843, reprinted in Historical Records of Australia (1st series) xii, 797. The Records are hereinafter referred to as H.R.A. 3 Port Phillip Gazette, 21 June 1841; Court proceedings and Wdls's career were closely followed by the three bi-weekly newspapers published in Melbourne: the Port Phillip Gazette and Port Phillip Herald vehemently opposed him, whilst the Port Phillip Patriot supported him. 4 See address to Wilis on hs dismissal in Ju!y 1843: Port Phillip Gazette, 12 July 1843, 3. The Gazette also wrote: 'We like hun the better because he has never administered one kind of justice to the rich, and another kind to the poor': 28 June 1843, 3. 5 Port Phillip Patriot, 26 June 1843, 3. 8 Port Phillip Gazette, 12 July 1843, 3, quoting from an address by Willis: see n. 4, supra. 703 704 Melbourne University Law Review [VOLUME8 able popularity, mostly amongst the lower, socio-economic sections of the community. He was, in addition, chronically ill,7 a fact to be remembered when assessing his extraordinary judicial demeanour. (b) Early Career John Walpole Willis was born on 4 January 1793, the second son of Captain William Willis of the 13th Light Dragoons.* He attended Rugby, Charterhouse: and was called to the Bar in 1816. In 1824, by which time he was enjoying a rising reputation as an equity barrister,1° he married Lady Mary Lyon, the daughter of a Scottish nobleman, by whom he had one son. That marriage was subsequently dissolved by Act of Parliament in 1833, and in 1836 he married again to a Miss Anne Bund, daughter of Colonel M. T. H. Bund of Wick House, Worcester.ll Willis enjoyed rapid legal promotion. In 1827,12 then thirty years of age, he was nominated as a Judge to the Court of Chancery in Upper Canada. He took up office in Canada in 1827, but soon quarrelled with the Lieutenant Governor, Sir Peregrine Maitland,13 his advisors, and his own legal colleagues. The Governor,14 without consulting Willis, even- tually removed him from office when he declined to sit in banco in the absence of the Chief Justice.16 Willis repaired to London and appealed successfully to the Privy Council against his dismissal, thus vindicating his name and reputation.16 In March, 1831, he was appointed Vice-President of the Court of Civil and Criminal Justice of British Guiana.17 There, he devoted himself with great energy and success to his duties, but in February 1836, his health failed and he returned to England on furlough.ls On the point of departure back to Demerara, British Guiana, he was appointed puisne judge of the Supreme Court of New South Wales. Willis thus arrived The exact nature and severity of his illness is uncertain. See infra pp. 707-8. * Pike (ed.), Australian Dictionary of Biography (1966) ii, 602. From which he was expelled, in 1809. Ibid. 602. No reason is given. loHe published the following during his early career, while waiting for briefs: A Digest of Rules and Practice as to Interrogatories for the Examination of Witnesses (1816); Pleadings in Equity Illustrative of Lord Redesdale's Treatise on the Pleadings in Suits in Chancery by English Bill (1820); Duties and Responsibilities of Trustees (1827): see ibid. 603. UForde, The Story of the Bar in Victoria 1839-1891 (1892) 54. Willis spent the last years of his life in Wick House, dying there in 1877. l2Willis, Letter to Gipps, 30 March 1839 in H.R.A. xx, 118. 13 Zbid. 119. 14 Zbid. 15 Willis voiced his opinion (probably correct) that because of the language of the Act creating it, the court could not sit in banco in the absence of the Chief Justice: ibid. 120-1. 16The Privy Council held that though the Governor had power, under Imperial Legislation to remove the judge, the order was improperly made, as he was not given an opportunity of being heard in his defence. Strangely, in 1845, the Pnvy Council repealed the decision of Governor Gipps removing Willis from office on the same grounds. See Willis v. Gipps (1845) 5 Moo. 379; 13 E.R. 536. l7 Willis, Letter to Gipps, 30 March 1839 in H.R.A. xx, 118. 18 Zbid. 123. SEPTEMBER19721 First Resident Judge in Victoria 705 in Sydney on 3 November 1837,19 there to begin a short but tempestuous judicial career in the colony. (c) Australia: Sydney (1838-41) (i) CONFLICT Willis was not long in the colony before he began to consolidate and compound his unfortunate reputation. Whilst in Sydney, he quarrelled with his brother judges,2O especially the Chief Justice, Sir James Dowling, and with members of the community at large; he criticized Dowling for accepting the service of aboriginal convicts, a practice he placed on a par with having slaves.21 Little wonder that Dowling wrote: Willis is a fidgety, restless, self-opinionated fellow and it requires a god deal of forbearance and caution on my part to go on with him. Some people have the opinion that he is cracked.= Willis also quarrelled with Dowling over the appointment of a Judge in Equity. Willis had been a Chancery barrister in England, and, as all his brother judges were common lawyers, it followed, 'by a natural, (private) sort of arrangement amongst the Judges'23 that he heard mainly equity cases alone in the colony.24 Thus Willis considered that he should receive the appointment, with the title of Chief Baron. However, the Home Government and his brother judges differed. Dowling, largely through animosity, claimed the position late in 1840,25 much to the general surprise of the community-and Willis's annoyance.26 Willis also indulged in some extraordinary 'extra-judicial' behaviour whilst in Sydney. In a speech at a public meeting to the Committee of the Diocesan S~ciety,~~on 19 July 1838, Willis 'charged Roman Catholics with the practice of idolatrous worship'.28 After much newspaper con- troversy, Willis requested Gipps to take out libel proceedings against the Right Reverend Dr Polding, Vicar General of the Roman Catholic 19 Willis, Letter to Thompson, 27 December 1837 in H.R.A. xix, 364. 20 Z.e., Sir James Dowling, Sir William Burton and Sir Alfred Stephen. n Gipps, Letter to Russell, 3 January 1841 in H.R.A. xxi, 161. 22 Dowling, 'The Judiciary' in Australian Historical Society, Journal Of Proceed- ings (1907) ii, 98. 23 Gipps, Letter to Russell, 3 January 1841 in H.R.A. xxi, 163. 24Thirteen cases in which Willis sat have been reported in Legge, A Selection of Supreme Court Cases in N.S.W. (1896). Willis's judgments appear learned, forth- right, and conservative, notable mainly for occasional classical quotations, e.g., Ex Parte Lyons in Legge, op. cit. 140, 149: 'I prefer the elucidation of the law by the Sages of Westminster to anything that can be obtained elsewhere, even from the pro- found philosophy of another Minos, or from the righteous rigour of a rescuscitated Rhadamanthus. But can we say of this or any other colony, "Gnossius hace Rhadamanthus habet durissima regna, Castigatque auditque dolos?" Vir. Aeneid, c.C.' 25 The statute, 4 Vict. c. 22 (1840), vested the equity jurisdiction of the Supreme Court in one judge: see Gipps, Letter to Russell, 1 January 1841, in H.R.A. xxi, 155. z6For details of the quarrel, see Gipps, Letter to Russell, 1 January 1841 in H.R.A. xxi, 155-6. See also Woinarski, op. cit. 29 1-2.
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