CO885-(13-15) — Page 150

1482.

PUBLIC RECORD OFFICE

C.O.885

Reference :-

13 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

,

No 169.

(WESTERN AUSTRALIA.)

LAW OFFICERS to COLONIAL OFFICE.

MY LORD,

We were honoured with your Lordship's commands, signified in Mr. Wingfield's

Royal Courts of Justice, January 21, 1890. letter of the 10th ultimo, stating that he was directed by your Lordship to transmit, for our consideration, copy of a Despatch and Enclosure from the Governor of Western Australia, desiring that the Colonial Attornies Relief Act might be extended to that Colony.

That if we considered that the last paragraph of the Governor's Despatch was a sufficient application within the terms of section 7 of the Act 20 & 21 Vict. cap. 39, Mr. Wingfield was to ask us to refer to the enclosed copy of the Colonial Act, No. 1 of 1881, and to the Rules for the Admission of Barristers of the Supreme Court of Western Australia; and that with reference to the title page of those Rules he was to explain that the same persons practised both as advocates and solicitors, as was the case in South Australia, to which the Act was applied in 1858, and at the Cape, to which the Act was applied in 1887.

That your Lordship was satisfied that the system of jurisprudence administered in the Colony was founded on the Common Law and principles of Equity as administered in England, and that it would be seen from Rule 12 that examination was required previous to admission, but that by Rule 10 (1.) certain graduates were admitted after only three years' service under Articles; and that (4.) certain students who had passed examinations for the bar in the United Kingdom or the Colonies were admitted without service under Articles, and that Mr. Wingfield was also to point out that by Rule 19, residence for six months was required before attornies or solicitors previously admitted in England could be admitted in the Colony.

That Mr. Wingfield was accordingly to request that we would be good enough to take the papers into our consideration, and to favour your Lordship with our opinion:-

(1.) Whether the qualification for admission as an Attorney or Solicitor of the Supreme Court of Western Australia answered and fulfilled the conditions specified in section 3 of the Act 20 & 21 Vist.

cap.

39?

(2.) Whether the condition of residence previous to admission was inconsistent with the conditions of that Act?

3. Whether steps might properly be taken for extending the provisions of the Colonial Attornies Relief Act to Western Australia ?

We have also the honour to acknowledge the receipt of Mr. Wingfield's letter of the 9th instant, stating, in reply to a letter from this Department dated 20th December 1889, that he was directed by your Lordship to inform us that you were not aware that in any of the cases in which the provisions of the Colonial Attornies Relief Act had been extended to a Colony there existed in the Colonial Law, at the time of such extension, conditions as to residence similar to those in the case of Western Australia.

That by Regula Generales of 18th December 1877, it was provided in New South Wales that persons admitted as solicitors in this country were eligible for admission in the Colony after having actually resided therein for the preceding three months; and that by General Rules gazetted in 1876, it was provided in South Australia, that any person admitted elsewhere and applying for admission in the Colony should have resided there for one year continuously. That those rules, however, came into force at dates subsequent to the extension of the Act to those Colonies.

We have taken the matter into our consideration and, in obedience to your Lordship's commands, have the honour to

Report

1. That we are of opinion that the qualification for admission as an Attorney or Solicitor of the Supreme Court of Western Australia does answer and fulfil the conditions specified in section 3 of the Act 20 & 21 Victoria, chapter 39.

# €1207.-2. 25.-1'90,

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1483.

PUBLIC RECORD OFFICE

Reference :-

PC.O. 885

13 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT, PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

2

2. We are of opinion that the condition of residence for a period of six months is not unreasonable and not inconsistent with the conditions of that Act.

3. We think that steps may properly be taken for extending to Western Australia the provisions of the Colonial Attornies Relief Act.

&c.

The Right Hon. Lord Knutsford,

&c.

&c.

}

We have. &c..

(Signed)

RICHARD E. WEBSTER.

EDWARD CLARKE.

No. 170.

(WESTERN AUSTRALIA.}

LAW OFFICERS to COLONIAL OFFICE.

MY LORD,

We were honoured with your Lordship's commands, signified in Mr. Bramston's

Royal Courts of Justice. January 21, 1890. letter of the 23rd ultimo, stating that he was directed by your Lordship to transmit, for our consideration, copy of a despatch from the Governor of Western Australia. dated 26th October 1889, with reference to a petition presented to him by a Dr. H. L. Smith, who desired to sue the Government for an alleged wrongful dismissal from office. That a copy of the Local Act 31 Victoria, No. 7, under which the proceedings were taken was enclosed.

That Dr. Smith was stated by the Governor to have held an acting appointment, and that although the conditions on which the appointment was made were not before your Lordship-that statemont appeared to be supported by Dr. Smith's letter of 27th February 1888, asking for his permanent appointment to the office he then held. And that Mr. Bramston was to explain that certain regulations (with which it was unnecessary to trouble us) did exist prescribing the procedure for dismissal of permanent officers of the Colonial Service. That Dr. Smith complained that those regulations were not observed in his case.

That the Governor in Council had endorsed the petition with a certificate, in pursuance of the first section of the local Act, that in his opinion the subject matter of the petition affected the Royal Prerogative, and that he had accordingly transmitted it to your Lordship, for the signification of Her Majesty's approval or disapproval.

That your Lordship, however, did not perceive in what way the matter affected the Royal Prerogative, and that you would be disposed to return the papers with a notification to that effect, but that the peculiar wording of the Act made your Lordship doubtful whether such a course would be proper.

That the Act appeared to require that either approval or disapproval must bo expressel. That your Lordship had on the merits, already declined to interfere on behalf of Dr. Smith, and considered that the proceedings should not have been brought; and that while, if approval was expressed, the proceedings must necessarily go on, an expression of disapproval would, on the other hand, bar the plaintiff of his remedy supposing he had a cause of action, although such cause did not involve any infringe- ment of the Prerogative.

That Mr. Bramston was accordingly to request us to take the papers into considera- tion, and to favour your Lordship with our opinion :-

1

(1.) Whether the subject matter of the petition did affect the Prerogative? (2.) Whether the Secretary of State was bound to return the petition with the signification of Her Majesty's approval or disapproval, or might properly return it and say that he was advised that the subject matter did not affect the Royal Prerogative?

(3.) If either approval or disapproval was necessary, which of them should be signified under all the circumstances of the present case?

We have taken the matter into our consideration and, in obedience to your Lord- ship's commands, have the honour to

Report

(1.) That we concur with your Lordship in the view that the subject matter of tho petition does not affect the Royal Prerogative.

(2. and 3.) That, in our opinion, Her Majesty's approval should be signified. Tho effect of such approval is merely to waive any objection on the part of the Crown to the particular proceeding, and such approval does not necessarily imply that the Royal Prerogative is, or may be, affected. We think that the Governor of Western Australia may properly be informed to this effect, and that any defence or answer can be raised in the proceedings.

In order to avoid misunderstanding in the future, we would further suggest that it would be well to inform the Governor of the opinion of your Lordship that the petition in no way affects the Royal Prerogative, and that the approval is signified solely to comply with the terms of the Colonial Statute-the Governor having given the certificate which is endorsed on the petition.

The Right Hon. Lord Knutsford,

&c.

&c.

4 61207.-1. 25.—1 ̧90.

&c.

We have, &c.,

(Signed)

RICHARD E. WEBSTER.

EDWARD CLARKE,