Judge Willis in Port Phillip: 1841-1843


Brien, Christopher. (2012). Judge Willis in Port Phillip: 1841-1843 [Thesis]. https://doi.org/10.4226/66/5a9cc45eb0bb7
AuthorsBrien, Christopher
Qualification nameDoctor of Philosophy (PhD)

Aims: This thesis aims to identify why John Walpole Willis, the first resident judge of the Supreme Court of New South Wales for the district of Port Phillip (now Melbourne), was removed from office in 1843. Willis subsequently appealed to the Privy Council. In 1846 the Privy Council upheld the appeal on the grounds that he should have been given an opportunity to respond to the complaints. Yet in spite of this, Willis was removed from judicial office for good reason. How can Willis's amoval be reconciled with the success of his appeal? It is the argument of this thesis that Willis was removed not because he had done anything unlawful but that he had diminished public confidence in the system of government, including the administration of justice. As will become apparent in the following pages Willis never understood this basic fact. This was his tragedy and the reason why, despite of the success of his appeal, he was a judicial failure. Scope: The Privy Council made a legal decision regarding Willis's appeal. It considered what the legal outcome was to be of Willis's behaviour in Port Phillip during the period 1841-1843. In order to understand the decision, the events in Port Phillip that Willis identified in his appeal to the Privy Council are placed in context. This material that has been sourced from the Privy Council archives is about a common law judge seeking to justify his behaviour. In this manner the thesis addresses the question of what are society's expectations of the judiciary in a common law system. In the nineteenth century there was no contemporary literature about such expectations. It was only in the twentieth century that common law systems began to write down guidelines or provide a list of relevant ethical considerations for the judiciary. Although the process of removing a judge has changed, the story of Willis in Port Phillip during the period 1841-1843 still has currency today. In this way the thesis provides commentary on 'what the law is' with respect to judicial behaviour and 'how the law operates' when a common law judge misbehaves. Conclusion: The story of Willis in Port Phillip during the period 1841-1843 is a study of judicial failure. It is also a tragedy in that he was probably the last person to recognise the importance of the matters before the Privy Council as representing how a good common law judge should behave. Willis had to be dismissed because he failed to satisfy society's expectations as to how a judge should behave. In short, he diminished public confidence in the administration of justice, brought disrespect for the institution of the judiciary and did not protect the reputation of the judiciary or individual judicial officers. These matters are the very issues raised in Willis's appeal before the Privy Council. The stories of Willis's amoval and appeal are not only of historical interest. The issues raised continue to have resonance with respect to judicial authority today.

PublisherAustralian Catholic University
Digital Object Identifier (DOI)https://doi.org/10.4226/66/5a9cc45eb0bb7
Research GroupSchool of Arts
Final version
Publication dates15 Aug 2012
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