: Barristers Solicitors Pettifoggers

Barristers Solicitors Pettifoggers

David Gibson

barristers-solicitors-pettifogers-coverProfiles in Australian Colonial Legal History

Simon Smith; Maverick Publications, 2014; 
223 pages; $39.95 (paperback)

Pettifogger: an inferior legal practitioner, especially one who deals with petty cases or employs dubious practices.

Simon Smith shines a light on the early days of legal practice in the Australian colonies in Barristers Solicitors Pettifoggers.

Smith has previously written Maverick Litigants — a history of some of Australia’s most notable vexatious litigants. If that book covered the plight of those who wanted to litigate but couldn’t, Barristers Solicitors Pettifoggers covers the story of those who did litigate but shouldn’t have — pettifoggers whose place in legal history was due to the dubious distinction of having been struck off.

An example is Horatio Nelson Carrington who began his career on the Isle of Man. Even in the early days of his practice, the omens weren’t good — his Principal on the island was himself struck off. After some ill-judged litigation on his own behalf (another bad omen), he took his family to the colonies.

He eventually arrived in Melbourne in 1839 which was then undergoing a land boom. Carrington soon moved onto private practice and business. He briefed a young Redmond Barry and ‘acted pro-bono for ten Aborigines charged with robbery’ (page 34).

But after failing to produce documents to the court in an insolvency matter, he was struck off by Victoria’s first Supreme Court judge — Judge Willis.

(Willis was also to be a thorn in the side of three other pettifoggers in this book — Sidney Stephen, James Erskine-Murray and John Thurlow — before himself being dismissed by NSW Governor Gipps after just three years in the colonies.)

Carrington’s business affairs didn’t fare much better. These were the days when disputes were resolved by duels and horse whippings and Carrington was involved in both, as well as more ill-advised personal litigation. The property bubble burst and Carrington became insolvent.

As with Maverick Litigants, Smith’s eye for eccentric detail shines — Carrington, imprisoned for debt, petitioned Governor La Trobe to be released. He was duly bailed and confined to his own home, but escaped dressed in women’s clothes to go to Sydney (although it didn’t stop him from returning to Melbourne for another crack at getting back on the roll).

The other stories in this book are equally colourful and charming. Most of the action in Barristers Solicitors Pettifoggers is set in Melbourne’s early years, which Smith’s research vividly evokes through the letters, newspaper reports and court reports of the time.

They were wilder times populated with strong characters and the strength of this book lies in Smith’s decision to focus on those lawyers who lived at the boundaries of proper legal practice — risk takers with intemperate personalities and often poor judgment, who flared briefly across the legal firmament only to crash and burn in personal feuds, professional missteps or bad business deals.

But whatever their failings, Smith treats his pettifoggers as gently as his maverick litigants, with an admiration for the colourful lives of those condemned by their temperament to swim against the tide.

DAVID GIBSON is a barrister and Senior Public Defender at Victoria Legal Aid.

(2015) 40(3) AltLJ 218
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