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.
The judiciary in Western Australia went through a particularly turbulent time around the turn of the twentieth century, much of it due to personality clashes and politics. 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 is reported to have said, “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.”
It was 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. Mr Richard W. Pennefather, KC, the state’s Attorney General, had been chosen to fill the vacancy. His pending appointment was not popular with many in the legal profession, who 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. When Sir John left Western Australia to pursue a career in Federal politics, the short-lived Throssel government appointed Mr Pennefather as Acting Judge, with an understanding, he believed, that he would be confirmed in the position when the issue of Mr Onslow’s retirement was sorted out. He gave up his seat in parliament to take up the position. Justice Edward Stone, one of the two junior judges was appointed Chief Justice.
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. His bitter feelings were enhanced 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.
In 1902, Mr Pennefather’s supporters, many of whom were Catholics like himself, accused Stephen Parker of being involved in shady land deals, and of bribing 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.
In February 1906, Mr Pennefather’s old rival, Justice Parker, was appointed 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 been brought 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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