In the early 1900s, Perth had no shortage of larger-than-life characters. They included not only eccentrics like Mrs Tracey and imposters such as Harcourt Whipple Ellis, but politicians, doctors and members of the legal profession. One lawyer, Mr Pennefather, carried a well-publicised grudge.
The judiciary in Western Australia went through a particularly turbulent time around the turn of the twentieth century. Much of this was due to personality clashes and politics.
The Justice Onslow saga
It began when Chief Justice Alexander Onslow, whose early years in office had been marked by a prolonged and draining conflict with Governor Broome, decided to take leave in England and then retire.
Since he was less than sixty years old, he wasn’t eligible for a pension under the Judges’ Pensions Act. He persuaded Dr Saw to write him a carefully-worded medical certificate, stating that he was too infirm to continue in his role. If accepted, this would have allowed him to claim the pension.
But the Premier, Sir John Forrest, refused to accept the certificate. “I was at Government House last night,” he told reporters, “and Sir Alexander Onslow sang the song, ‘My pretty Jane’…with such vigour and so skillfully that it is impossible for me to say that he is so physically or mentally incapable.”
Most people in the legal profession expected that one of the two puisne (or junior) judges would replace Mr Onslow as chief justice when he retired. This would leave a vacancy for a new judge. The Forrest government had chosen Mr Richard W. Pennefather, KC, the state’s Attorney General, to fill the vacancy. His pending appointment was not popular with many in the legal profession. They felt that others were better qualified for the role of judge. Some said he’d effectively appointed himself.
John Forrest’s refusal to accept the retirement of Chief Justice Onslow on medical grounds left the situation in limbo. In 1901, Sir John left Western Australia to pursue a career in Federal politics. The short-lived Throssel government appointed Justice Edward Stone, one of the two junior judges, as Chief Justice. Mr Pennefather was appointed Acting Judge in his place, with an understanding, he believed, that he would be confirmed in the position when Mr Onslow’s retirement was sorted out. He gave up his seat in parliament to take up the position.
Ousted and rejected
In May 1901, George Leake became Premier. He quickly approved Chief Justice Onslow’s pension on medical grounds, then appointed Stephen Henry Parker, his brother-in-law, to the permanent position of judge. Mr Pennefather was told that his services on the bench were no longer required. Parker was well qualified for the job, but Mr Pennefather’s supporters were quick to cry “nepotism”.
Protests by Mr Pennefather that he had been promised, in writing, by the previous government that he would be given the permanent post were dismissed. When George Leake appointed another man, Frederick William Moorhead, to fill the newly-created position of a third junior judge on the bench of the Supreme Court, Mr Pennefather’s bitterness grew.
In 1902, Mr Pennefather’s supporters, many of whom were Catholics like himself, accused Stephen Parker of being involved in shady land deals. They also claimed he had bribed the Sunday Times not to print an editorial that would have been detrimental to him. It took a Royal Commission to determine that these accusations were untrue.
Salt in the wounds
In February 1906, the government appointed Mr Pennefather’s old rival, Justice Parker, as Chief Justice. Mr Pennefather continued to practice as a lawyer in Perth, but his ongoing bitterness was difficult for him to hide. When, in June 1906, he was asked to welcome a new judge, Justice Rooth, to the bench on behalf of the bar, his resentment overcame his manners. He offered Justice Rooth a lukewarm welcome, before going into a long spiel about why it would have been better to appoint a locally-trained man. (Rooth had come out from England).
He then used the opportunity to air, in detail, his grievance at not being appointed to the bench in 1901. This rudeness to Justice Rooth embarrassed his colleagues and offended many people, both inside and outside of the court. As The WA Record put it, in his obituary in January 1914, “Since his rejection, Mr. Pennefather has never been the same man.”
Much of the information in this story is drawn from a paper by E.J Edwards: “Edwards, E J — ‘Robert Furse McMillan’  UWALawRw 13; (1963) 6(2) University of Western Australia Law Review 173.” http://www6.austlii.edu.au/cgi-bin/viewdoc/au/journals/UWALawRw/1963/13.html.
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