In Re Byrne - [1913] HCA 30

IN RE BYRNE.

ON APPEAL FROM THE SUPREME COURT OF Barrister and solicitor--Admission to practise-Managing clerk--Supreme Court

Act 1912 (Vict.) (No. 2437), sec. 3.

Sec. 3 of the Supreme Court Act 1912 provides that Notwithstanding MELBOURNE,

anything contained in any Act of the Parliament of Victoria or any Rules May 15.

made in pursuance of any such Act the Supreme Court consisting of three Judges of whom the Chief Justice shall be one may where under special to any person who shall within one year after the passing of this Act satisfy the said Court that he has before the commencement of this Act served for ten years in Victoria as a managing clerk to some practising bar- rister and solicitor or barristers and solicitors and has been for such period of ten years bond fide engaged under his or their direction and supervision in the transaction and management of such matters of business as are usually trans- acted by barristers and solicitors order that such person shall upon passing" a certain examination "be entitled to admission to practise as a barrister and solicitor for the Supreme Court without entering into or serving under articles of clerkship," &.

The Supreme Court having decided that a person who had the control and management of the costs department of the office of a barrister and solicitor was not a "managing clerk" within the meaning of that section,

17 CLR 53

Held, that special leave to appeal to the High Court should not be granted. Special leave to appeal from the decision of the Supreme Court of Victoria In re Burne, (1913) V.L.R., 159; 34 A.L.T., 174, refused.

APPLICATION for special leave to appeal.

An application was made by William James Byrne to the Supreme Court of Victoria for an order under sec. 3 of the Supreme Court Act 1912 that he be entitled, upon compliance by him with the provisions of the section, to admission to practise as a barrister and solicitor.

The applicant was for a period of 5 years and 2 months, beginning in June 1892, a managing clerk to Mr. O'Hea, and for a period of 4 years and 8 months, from 8th April 1908 to 31st December 1912, a managing clerk to Messrs. Whiting &Aitken. During the interval between those two periods he had the control and management of the costs department of the offices, first of Messrs. Malleson, England &Stewart, for 5 years and 9 months, and next of Messrs. Whiting &Aitken, for 4 years and 11 months. All of his employers were barristers and solicitors of the Supreme Court of Victoria.

The Supreme Court held that the applicant was not during that interval a "managing clerk" within the meaning of sec. 3, and they refused the application: In re Byrne 1.

The applicant now applied to the High Court for special leave to appeal from that decision.

McArthur K.C. (with him Schutt), for the applicant. This is not an application for leave…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading In Re Byrne

Details

AGLC: In Re Byrne [1913] HCA 30
Case: [1913] HCA 30
Decision Date: 15 May 1913

CaseChat Overview and Summary

The applicant, William James Byrne, sought special leave to appeal to the High Court of Australia from a decision of the Supreme Court of Victoria. The dispute concerned Byrne's eligibility for admission to practise as a barrister and solicitor under section 3 of the *Supreme Court Act 1912* (Vic.). This section provided a pathway to admission for individuals who had served for ten years as a managing clerk to a practising barrister and solicitor, and who had been engaged in managing business typically handled by such practitioners.

The legal issue before the High Court was whether the Supreme Court of Victoria had erred in law by determining that Byrne was not a "managing clerk" within the meaning of section 3 during a specific period of his employment. This period involved his control and management of the costs department of legal offices, which the Supreme Court found did not satisfy the statutory definition of a managing clerk.

The High Court, in refusing special leave to appeal, agreed with the Supreme Court's interpretation of the Act. While acknowledging the applicant's hardship and qualifications, the Court emphasised that the application had to be determined strictly according to the terms of the legislation. The Court was reluctant to interfere with a State Supreme Court's decision on the conditions for practising law within its jurisdiction and found no prima facie case of legal error in the Supreme Court's construction of the term "managing clerk" as applied to the applicant's role in managing the costs department.

Orders