1. This paper is the first of a series of studies to be undertaken by the Queensland Supreme Court Library of an extensive collection of counsels’ opinions held by the Queensland firm of Feez Ruthning. I would like to thank Peter Allen and the other former partners of Feez Ruthning (now Allens Linklaters) for their foresight in preserving this unique record of Australian legal history and for their generosity in making it available to the Queensland Supreme Court Library for research purposes. I would also like to thank Helen Jeffcoat, Yvette Simmonson, Courtney Coyne and the staff of the Queensland Supreme Court Library for their ongoing work in preserving, digitising, transcribing, analysing and investigating the accessible contents of this material. I am also very grateful to Mr Greg Cooper, Crown Solicitor, for allowing the Supreme Court Library confidential access, for the purposes of this study, to the collection of Griffith opinions which are held by the State, but which remain subject to legal professional privilege.
2. The most extensive account of Griffith’s life, written from an historian’s perspective, remains Roger Joyce’s Samuel Walker Griffith (UQP, 1984). See also R Joyce “Sir Samuel Walker Griffith (1845-1920)” in Australian Dictionary of Biography Volume 9 (MUP, 1983). For a personal memoir of Griffith and his legal achievements, written by a distinguished lawyer who was once one of Griffith’s associates, see A.D.Graham The Life of Sir Samuel Griffith (Powells & Pughs, 1939). For assessments of Griffith’s judicial work, see Sir H.T. Gibbs “Samuel Walker Griffith” in T.Blackshield, M.Coper & G.Williams (Eds) Oxford Companion to the High Court of Australia (OUP, 2001); Sir H.T. Gibbs and P.A.Keane “Sir Samuel Griffith” in M.White and A.Rahemtula (Eds) Queensland Judges on the High Court (SCL, 2003); and M. White and A. Rahemtula (Eds) Sir Samuel Griffith: The Law and the Constitution (LBC, 2002).
3. Lengthy tributes appeared in all major Australian newspapers, including the Brisbane Courier, 10 August 1920 at 7; Sydney Morning Herald, 10 August 1920 at 6 and the West Australian, 10 August 1920, at 6.
4. Brisbane Courier, 10 August 1920, at 7.
5. Knox CJ, Ceremonial sitting of the High Court, 10 August 1920, reported in Sydney Morning Herald, 11 August 1920 at 12.
6. Macalister was one of the leading legal and political figures in early Queensland. After playing an active role in the movement for Queensland’s separation, he was elected to Queensland’s first Legislative Assembly. At the commencement of Griffith’s articles, Macalister was dividing his time between practice as a solicitor and serving in Herbert’s government as Secretary for Land and Works. By the end of Griffith’s articles, Macalister had succeeded Herbert and served two short terms as Premier of Queensland (1866, 1866-67). When Griffith commenced practice at the Bar, Macalister’s firm was one of his early supporters. See Paul D Wilson “Arthur Macalister (1818-1883)” in Australian Dictionary of Biography Vol 5 (MUP, 1874).
7. Griffith was admitted to the Bar on 14 October 1867, at a sitting of the Full Court comprising Cockle CJ and Lutwyche J. His admission was moved by Charles Lilley QC. See Brisbane Courier, 15 October 1867, at 2. At the time, the Queensland Bar comprised fewer than 20 practising members (including only two silks): see Pugh’s Almanac 1868 at 75.
8. The Town Hall, which was opened in 1864, was designed to include professional offices. An early photograph of the façade of the Town Hall (which was demolished in 1937) can be seen in JD McKenna Supreme Court of Queensland: A Concise History (UQP, 2012) at 61 (“Concise History”). Macalister was one of the solicitors who kept an office in the building: see, eg, Brisbane Courier, 7 October 1864, at 1. This seems to have been the office where Griffith was based during the latter period of his articles. When Griffith commenced practice at the Bar, he began by sharing chambers in the Town Hall with George Paul (later a Judge of the District Court). All Griffith’s early opinions are signed “Town Hall Chambers”: Concise History, at 68.
9. Plans and early photographs of the Convict Barracks can be seen in the Concise History at 29, 42 and 44.
10. Roll of Her Majesty’s Counsel, Concise History at 47.
11. This appears from the Griffith Opinions which, from November 1886, are signed “Lutwyche Chambers”.
12. Lutwyche Chambers, which opened in 1885, stood at 11/13 Adelaide Street. It was a two-storied building which accommodated, on the ground floor, the solicitors’ firm of Macpherson, Miskin & Feez (later Feez Ruthning & Baynes) and three barristers’ chambers, with chambers for five more barristers on the first floor. See Pugh’s Almanac 1915 at 479. A photograph showing Lutwyche Chambers in the 1950s appears in the Concise History at 159 (far right),
13. Joyce, op cit, at 90.
14. AB Piddington Worshipful Masters (A&R, 1929) at 234.
15. See Pugh’s Almanac 1893, “Department of Justice”, at 128
16. In his first two years in Parliament, Griffith drafted and introduced the Telegraphic Messages Act 1872 (Qld) and the Equity Procedure Act 1873 (Qld): Joyce, op cit, at 31-32.
17. Griffith, as Attorney-General, was responsible for the introduction to Queensland of the most significant reforms in court procedures of this era: Judicature Act 1876 (Qld).
18. Joyce, op cit, at 150.
19. For example, the legalisation of trade unions (Trade Unions Act 1886 (Qld)).
20. Joyce, op cit, at 90.
21. The various drafts which were produced, in quick succession, by Griffith are collected in J.Williams The Australian Constitution: A Documentary History (MUP, 2005).
22. A.Deakin The Federal Story (MUP, 1963)at 52.
23. Chief Justice’s Salary Act 1892 (Qld).
24. Chief Justice’s Salary Act 1902 (Qld).
25. BH McPherson The Supreme Court of Queensland (Butterworths, 1989) at 191.
26. Sir H.T. Gibbs “Sir Samuel Griffith” in M.White and A.Rahemtula (Eds) Queensland Judges on the High Court (SCL, 2003) at 33.
27. Griffith CJ’s famous judgment in Butt v McDonald (1896) 7 QLJ 68, for example, has been referred to more than 15 times by Australian superior courts since 2010.
28. More significant Griffith opinions, which remain the subject of legal professional privilege, are held in the office of the Crown Solicitor.
29. For a history of the firm, by a long-serving senior partner, see GO Morris Feez Ruthning: The First 100 Years (2004) (http://www.lexscripta.com/articles/FR.html).
30. Public Notice, Brisbane Courier, 4 December 1911. The merged firm was initially known as Feez, Ruthning and Baynes.
31. Ross Johnson “Robert Little (1822-1890)” Australian Dictionary of Biography Vol 5 (MUP, 1974). A photography of Little and his family home “Whytecliffe” appears in the Concise History at 34.
32. Robert Little’s admission was moved by the Attorney-General, who introduced him to the Court as a “gentleman of respectability”: Sydney Morning Herald, 10 August 1846, at 2.
33. Brisbane Courier, 21 January 1890, at 4.
34. Queensland Government Statistician Historical Tables Demography 1823-2008 (http://www.oesr.qld.gov.au/products/tables/historical-tables-demography/index.php)
35. The 1846 editions of the Moreton Bay Courier suggest that there were earlier practices commenced by John Ocock and Thomas Adams.
36. Nan Phillips “Eyles Irwin Caulfield Browne (1819-1886)” Australian Dictionary of Biography Vol 3 (MUP, 1969).
37. Brisbane Courier, 21 January 1890, at 4.
38. George Harding (later Harding J) who arrived in Brisbane in 1866 and Eyles Browne were married to sisters.
39. Brisbane Courier, 20 November 1869, at 5. And see re The Bank of Queensland Limited (1870) 2 QSCR 113.
40. Griffith’s relationship with the firm appears to have become closer after Harding was appointed to the Supreme Court in 1879. See, for example, King & Sons v Co-operative Butchering Company, Brisbane Courier, 12 August 1879 at 3; and Spent v Australasian Joint Stock Bank, Brisbane Courier, 8 April 1880 at 3.
41. The position prior to 1887 remains uncertain because the Opinion Book from this period remains too fragile to inspect. In the period from 1887 to 1993, however, 17 of the 49 opinions from counsel are from Griffith.
42. For an outline of Mr Ruthning’s life, see his obituary in The Queenslander, 7 October 1916, at 40.
43. Supreme Court of Queensland, Roll of Solicitors, 11 March 1876.
44. Public Notice, Brisbane Courier, 27 January 1879, at 1.
45. Public Notice, The Queenslander, 18 November 1882, at 692.
46. Brisbane Courier, 3 October 1883, at 1.
47. Brisbane Courier, 21 December 1881, at 1.
48. HLE Ruthning Bills of Exchange Act 1884 (Watson Ferguson, 1884)
49. Public Notices, Brisbane Courier, 20 October 1888 at 11 and 2 February 1993 at 1. For a brief account of Mr Byram’s career, see his obituary in the Brisbane Courier, 18 March 1922 at 12.
50. Public Notices, Brisbane Courier, 29 October 1893 at 3 and 4 December 1911 at 2. For a brief account of Mr Jensen’s career, see his obituary in The Queenslander, 22 May 1915, at 15.
51. Brisbane Courier, 10 October 1899, at 8.
52. Supreme Court of Queensland, Roll of Solicitors, 5 December 1899.
53. The Queenslander, 22 May 1915, at 15.
54. For a brief outline of Macpherson’s career, see his obituary in the Brisbane Courier, 13 September 1913, at 6.
55. Supreme Court of Queensland, Roll of Solicitors, 8 Sept 1865; Brisbane Courier, 22 September 1866 at 3.
56. Cairns Post, 25 September 1913, at 2.
57. Brisbane Courier, 13 September 1913, at 6.
58. See, for example, Hugh v Cribb, Brisbane Courier, 15 December 1868 at 2.
59. The first reported case is re Loudon (1870) 2 QSCR 70, when Griffith (instructed by Macpherson) appeared unsuccessfully in the Full Court against Harding (instructed by Little & Browne).
60. Reported cases include Hobbs v Municipality of Brisbane (1876) 4 QSCR 214 and Brisbane Municipal Council v Watson (1883) 1 QLJ 127. In the Opinion Books of this firm, numerous opinions were prepared by Griffith in matters for the Council.
61. P.Macpherson The Insolvency Act 1874 (Watson, 1874); G.Harding & P.Macpherson The Acts and Rules Relating to Insolvency (Watson Ferguson, 1887).
62. From 1884, the firm became known for a time as Macpherson and Miskin. However, in 1891, Miskin left the firm in unusual circumstances. He was reported to have left the Colony “without leaving any indication of his intended movements”: The Queenslander, 30 January 1892 at 234. After a time, he returned to practice in Rockhampton, where he remained until his death in 1913: Rockhampton Morning Bulletin, 15 October 1913, at 6.
63. Brisbane Courier, 20 April 1885, at 8.
64. Brisbane Courier, 2 April 1885, at 2.
65. Feez was admitted as a solicitor on 1 December 1885: Brisbane Courier, 2 December 1885, at 5. His appearances, as a solicitor from the offices of Macpherson and Miskin, begin to be mentioned in 1886: eg Brisbane Courier, 11 May 1886, at 4.
66. See JCH Gill “Adolph Frederick Feez (1854-1944)” and “Arthur Herman Feez (1860-1935)” Australian Dictionary of Biography Vol 8 (MUP) 1981. And see Brisbane Courier, 17 October 1944, at 4.
67. Brisbane Courier 16 December 1886 at 7.
68. As solicitor for the Brisbane Municipal Council, the firm was also involved in two cases which went on to the Privy Council: Martin v Muncipality of Brisbane (1893) 5 QLJ 3 (FC); [1894] AC 249 (PC); Clark & Fauset v Muncipality of Brisbane (1896) 6 QLJ 131 (FC — PC unreported Brisbane Courier, 9 April 1896, at 6).
69. Brisbane Courier, 14 February 1898, at 4.
70. Supreme Court Library Act 1968 (Qld) s.7A.
71. There are 456 opinions in the four volumes which are available for inspection, with an estimated 150 further opinions in Opinion Book No 1.
72. A.D.Graham The Life of Sir Samuel Griffith (Powells & Pughs, 1939) at 87, 93.
73. Ibid.
74. re Bridgeman (1869).
75. Queensland was one of the first colonies to adopt the Torrens system of land registration, with the enactment of the Real Property Act 1861 (Qld).
76. Ex parte Bank of Australasia (1893)..
77. For an account of the swearing in, on 14 March 1893, see Brisbane Courier, 15 March 1893, at 5.
78. A rare exception to this practice was, re McManus’s Will (1885) , where Griffith concluded “it is impossible to be confident as to the effect of the Will until the question has been decided by the Court.”
79. Ex parte Muncipality of Brisbane (1878).
80. AD Graham, op cit, at 60.
81. eg ex parte Union Bank (1886), which refers to the related case of Union Bank v Echlin (1886).
82. re Landsborough Wills (1886) which refers to the unreported case of Bright v Attorney General, Brisbane Courier, 16 Dec 1873.
83. ex parte Brisbane (1880).
84. ex parte Brisbane (1891)
85. ex parte DL Brown & Co (1883)
86. ex parte Brisbane Newspaper Company Limited (1889)
87. re Interest of Husband in Wife’s Lands (1886)
88. ex parte O’Brien (1885)
89. ex parte Stenson (1889)
90. Brisbane Courier, 8 September 1885, at 3.
91. Brisbane Courier, 17 March 1885, at 4.
92. ex part Brisbane re stoppage of traffic by Judge of Supreme Court (1885).
93. ex part Bank of Australasia re the Will of Hon W Graham (1892)
94. Turner v Kent (1891)
95. re Swan’s Will; ex parte Gailey and Ewing (1891). James Swan was a former editor of the Brisbane Courier and Mayor of Brisbane.
96. ex parte Trustees of EIC Browne (1888)
97. This calamity was reported in the Brisbane Courier, 4 March 1890, at 5. It gave rise to legal issues concerning the operation of mutual wills, when it is unknown who died first (re Nicklin’s Will (1890)) and issues concerning the publication in the press of photographs obtained of victims ( Brisbane Newspaper Limited ats Waugh (1890)).
98. ex parte Barcoo and Beaver (1889)
99. ex parte Wm Jones & Sons (1889)
100. ex parte Sugarloaf Tin Company (1874).
101. ex parte Corporation of Brisbane (1874); Brisbane v Lord Brassey (1888).
102. ex parte Brisbane (1880).
103. This accident was reported in The Queenslander, 29 August 1874, at 6. The opinion of Griffith was provided later that year: ex parte Alfred Thomas West (1874).
104. Employers Liability Act 1886 (Qld).
105. ex parte Bridgeman (1869). The difficulty arose, in part, because of the concern that titles were governed purely by the requirements for registration and not by equitable principles.
106. ex parte Burns Philp & Co (1883).
107. ex parte Burns Philp & Co (Limited Further Opinion) (1883). This opinion, at 1200 words, is approximately double the length of Griffith’s usual opinions.
108. ex parte Clapperton (1877); re Cullens Will (1880).
109. Anon (18 July 1887)
110. re Landsborough’s Will (1886)
111. ex parte Mortimers Executors (1888); re Undue Subdivision of Land Prevention Act 1885 (1887); ex parte City and Suburban United Muncipality (1885).
112. ex parte Hyne (1891)
113. ex parte Mayor of South Brisbane (1886)
114. ex parte Brisbane (1880); Railways and Tramways Extension Act 1880 (Qld).
115. ex parte Union Bank of Australia (1886)
116. re Hollands Will (1884)
117. ex parte Ann Street Presbyterian Church (1883)
