Willis v Gipps
| Jurisdiction | UK Non-devolved |
| Judgment Date | 08 December 1846 |
| Date | 08 December 1846 |
| Court | Privy Council |
English Reports Citation: 13 E.R. 536
ON APPEAL FROM NEW SOUTH WALES.
Mews' Dig. tit. COLONY, I. GENERAL PRINCIPLES, 4, Judges and Courts; tit. PUBLIC OFFICER, A. JUDICIAL CAPACITY, 1. Judges, e. Amotion. S.C 6 St. Tr. (N.S.) 311. The Statute 22 Geo. III., c. 75, was formerly known as Burke's Act. Under the Short Titles Act, 1896 (59 and 60 Viet. c. 14), its short title is the Colonial Leave of Absence Act, 1782. As to (i.) its construction, see Montagu v. Van Dieman's Land {Lieutenant-Governor of), 1849, 6 Moo. P.C. 489; In re Cloete, 1854, 8 Moo. P.C. 484; Ex parte Robertson, 1857-58, 11 Moo. P.O. 295. (ii.) As to powers of Privy Council in regard to removal of Colonial judges, see Representatives of the Island of Grenada v. Sanderson, 1847, 6 Moo. P.C. 38; and "Memorandum of the Lords of the Council on Removal of Colonial Judges," 6 Moo. P.C. (N.S.) Appendix. (iii.) As to necessity of notice, see Dickson v. Combermere (Viscount), 1863, 3 F. and F. 549 n.;and cf. Fisher v. Keane, 1879, 11 Ch.D. 353; Labouchere v. Wharncliffe (Lord) 1879, 13 Ch.D. 346.
[379] ON APPEAL FROM NEW SOUTH WALES. JOHN WALPOLE WILLIS,-Appellant; SIR GEORGE GIPPS, Knt.,-Respondent * ------ -^a [June 24 and 25, July 8, 1846]. OELCOLONMSF '2The Statute, 22 Geo. III., c. 75, empowering the Governor and Council, of a [1953] 2 Q.B. 4821 colony or plantation, to amove persons holding patent offices, for neglect- or misbehaviour, includes judicial offences. But the Governor and Council of New South Wales, having amoved a Judge, without giving him notice, or affording him an opportunity of answering the charges brought against him, and upon which the order of amotion was founded, such order was held illegal, and reversed. This was an appeal, against an order of amotion from the office of one of Her Majesty's Judges, of the Supreme Court of New South Wales, and Resident Judge at Port Philip, in the same colony, made by Sir George Gipps, the Governor, and the Executive Council of that colony, presented by John Walpole Willis, Esq., the Judge so removed. The appeal was referred, by Her Majesty, to the Judicial Committee of the Privy Council, and arose, under the following circumstances : - By the Statute, 9 Geo. IV., c. 83, " for providing for the administration of justice, in New South Wales and Van Dieman's Land, and for the more effectual * Present: The Lord President (the Duke of Buccleuch), the Lord Chancellor [Lord Lyndhurst], Lord Brougham, Chief Justice Tindal, Mr. Baron Parke, the Right Hon. T. Pemberton Leigh, and the Right Hon. W. E. Gladstone. 536 WILLIS V. G1PPS [1846] V MOORE, 380 government thereof, and for other purposes relating thereto," [380] His Majesty was empowered to erect and establish Courts of Judicature in New South Wales, and Van Dieman's Land, respectively, which should be styled " the Supreme Court of New South Wales," and " the Supreme Court of Van Dieman's Land;" and it was enacted, that each of such Courts should be holden by one or more Judge, or Judges, not exceeding three; and that the said Judges should, from time to time, be appointed by His Majesty, his heirs and successors, and that it should be lawful for his Majesty, his heirs and successors, from time to time, as occasion might require, to remove and displace any such Judge, and in his place and stead, to appoint another fit and proper person, provided that, in case of the absence, resignation, or death of any such Judge, or in case of any such disease or infirmity as should render any such Judge incapable of discharging the duties of his office, it should be lawful for the Governor of the said colony to appoint some fit and proper person to act in the place and stead of any Judge so being absent, resigning, dying, or becoming incapable, until such Judge should return to the execution of his office, or until a successor should be appointed by His Majesty, as the case might require. And, by sect. 3, it was enacted, that the said Courts should be Courts of Record, and should have cognizance of all pleas, civil, criminal, or mixed, and jurisdiction in all cases whatsoever, as fully and effectually to all intents and purposes in New South Wales, and Van Dieman's Land, respectively, as His Majesty's Courts of King's Bench, Common Pleas, and Exchequer, at Westminster, or either of them, lawfully have, or hath, in England; and that the said Judges, so appointed, should have and exercise such and the like jurisdiction and authority in New South [381] Wales, and Van Dieman's Land, respectively, as the Judges of the Courts of King's Bench, Common Pleas, and Exchequer in England, or any of them, lawfully have and exercise, and as should be necessary for carrying into effect the several jurisdictions, powers, and authorities, committed to the said Courts respectively ; and, by sect. 24, it was enacted, that all laws and Statutes, in force within the realm of England, at the time of the passing of that Act (not being inconsistent with the Act, or with any charter or letters patent, or order in Council, which might be issued in pursuance thereof), should be applied in the administration of justice in the Courts of New South Wales, and Van Dieman's Land, respectively, so far as the same could be applied within the said colonies. The Appellant was appointed by Her Majesty, under this Act, to be one of the Judges of the Supreme Court of New South Wales, by warrant under Privy Seal and Sign Manual, and he thereupon repaired to the colony, and received his patent, under the seal of the colony, appointing him to be such Judge. By an act of the local legislature of New South Wales, passed in the 4th of Victoria (No. 22), it was enacted, that- it should be lawful for the Governor of that colony, for the time being, to appoint, from time to time, one of the Judges of the Supreme Court, not being the Chief Justice, to reside in the district of Port Philip, and that the said Judge, whilst so resident, should have, exercise, and enjoy, within the limits of that district, all such, and the like powers, jurisdiction, and authority as was or could be legally exercised by the Supreme Court, and that such resident Judge should not, whilst so resident at Port Philip, have any jurisdiction or authority, in or over any cause or matter in-[382]-stituted or pending in the Supreme Court, before the Judges sitting in Sydney. By patent, under the seal of the colony of New South Wales, bearing date the 8th of February, 1841, the Appellant was appointed resident Judge, for the district of Port Philip, and the Appellant, in virtue of such patent, repaired to Melbourne, in that district, and officiated as resident Judge there until the amotion appealed against. On the 21st of December, 1842, the Governor brought before the Executive Council of the colony, certain complaints against the Appellant, for alleged misbehaviour, in his office of resident Judge of P'ort Philip, and the matter of such complaints was proceeded upon in Council on that day, and on the 16th, 17th, and 20th of January, 1843. No notice was given to the Appellant of the accusations preferred against him, nor of the proceedings of the Governor and Council thereon. On the 24th of June 1843, during the Appellant's sitting in Court, at Melbourne, he received a sealed packet, containing a letter from Mr. Superintendent La Trobe, 537 VMOOEE, 383 WILLIS V. GIPPS [1846] dated the same 24th of June, stating, that he (the Superintendent) had that day received a dispatch, written by the Colonial Secretary, by direction of the Governor, announcing that it had been deemed expedient to submit to the Executive Council of the colony, representations which had been addressed to the Government, respecting the Appellant, and that, after mature deliberation, the Council had advised that, in conformity with the provisions of the Act of Parliament, 22 Geo. III., c. 75, the Appellant should be forthwith amoved from the office, not only of resident Judge of Port Philip, but as Judge of the Supreme [383] Court of New South Wales. The packet contained, in addition to the Superintendent's letter, a copy of a writ, issued by order of the Governor and Council of the colony, and tested the 17th of June, 1843, whereby, after setting forth that it had been sufficiently made to appear, to the Governor and Council, that the Appellant had misbehaved himself in his office, the Governor and Council did revoke the appointment of the Appellant, as resident Judge as aforesaid, and did also amove the Appellant from the office of Judge of the Supreme Court of New South Wales. The packet also contained a writ, under the seal of the colony, issued by order of the Governor and Council, and tested the same 17th day of June, superseding and inhibiting the Appellant, from the exercise of all power and authority as a Judge of the said Supreme Court. On the 26th of the same month, the Governor, by a despatch addressed to Her Majesty's Secretary of State for the Colonies, duly reported the removal of the Appellant, from his office of a Judge of the Supreme Court. On the 27th, the Appellant also addressed a despatch to the Secretary of S,tate, complaining of his amotion, and seeking redress. He immediately afterwards quitted the colony for this country. By the 2nd section of the Act, 22 Geo. III., c. 75, under which the Appellant was amoved, it is enacted, " that in case any person or persons so (as therein provided) amoved shall think himself aggrieved thereby, it shall and may be lawful, to and for the person or persons so aggrieved, to appeal therefrom, as in other cases of appeal from such colony or plantation wherein such amotion shall be finally judged of and determined by His Majesty in Council." The Appellant, availing himself of the right of appeal [384] thus given, on the 15th of February, 1844, presented his petition of appeal to Her Majesty in Council, against his amotion, praying Her...
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