Courtroom resentment exploded
Wellington had only just become a capital but, as reports, it was already making a mark on the legal stage.
IT PAINED a commentator that we had to look to Sierra Leone – a ‘‘colony of negroes and mean whites’’ – to find a comparable debacle. Chief Justice James Prendergast and brilliant but pugnacious barrister George Barton squared off in a fiery exchange in the Wellington Supreme Court.
Once friends and colleagues, the pair’s relationship had deteriorated into litigation and outrageous claims.
Three times Prendergast had charged Barton with contempt of court but, this time, in January, 1878, he did not withdraw it.
Their stoush – which incidentally managed to overshadow a much-more important Treaty of Waitangi case going through the courts at the time – appears to have been based on jealousy and a dash of prejudice.
Victoria University law lecturer Grant Morris, who has written Prendergast’s biography, Prendergast: Legal Villain, points out that Barton was Irish whereas Prendergast, an Englishman – and no relation of former Wellington mayor Kerry Prendergast – was seemingly anti-Irish.
But the men appeared to have put this aside, and shared a similar history. Both were trained in law in their home countries, both followed gold rushes to Victoria and then to Otago, where they searched for gold and practised law.
In Dunedin, they were friends, or at least knew each other, and often worked on the same cases.
Then, when the Otago gold ran dry, Prendergast was appointed attorney-general and moved to the new capital, Wellington. At the same time, judge Christopher William Richmond made the same move.
But hot-tempered Barton left New Zealand after he wrongly accused a lawyer of stealing a document and was prosecuted for slander.
A few years later he returned, this time to Wellington, where his old colleague and friend had ‘‘far outstripped him in terms of career success’’ and was now chief justice, Morris writes.
‘‘By all accounts, the two men were on civil terms up until their third meeting in Wellington during the late 1870s.’’
But working in a courtroom ruled by a man marginally his junior, in age and experience, clearly annoyed Barton.
‘‘Whatever my fate is likely to be, no word shall escape my lips unworthy of my standing at this bar; my age, which exceeds your honour’s; my seniority at the bar – of 27 years – which also exceeds your honour’s,’’ Barton once said to Prendergast in court.
The setting for the debacle was the case of Edward Thomas Gillon – a high-profile journalist and editor of the Evening Argus, – whose board effectively fired him.
Gillon took his case to the Wellington Supreme Court and eventually, after a second jury trial – the first could not come to a decision – Burton proved Gillon was a partner in the newspaper and could continue as editor.
‘‘Gillon, flush with victory, proceeded to the Evening Argus premises to exercise his rights,’’ Morris writes.
But his partners refused to accept him and, after a scuffle, he was physically removed. ‘‘While not quite the Wild West, colonial Wellington had a rough and ready way in which to resolve disputes.’’
Gillon went for an injunction to stop his partners’ obstruction. On the bench were Prendergast and Richmond. Barton – who was already gunning for dismissal of the Wellington Supreme Court bench – was Gillon’s lawyer.
The scene was set for a showdown. Gillon’s case almost faded to into background noise.
Strangely – and taken as vindictively by Barton – the judges refused the injunction on minor technical grounds.
‘‘Barton refused to accept the judgement and continued to interrupt the judges, stating that the court was mistaken and that he must be able to speak for his client.’’
The moment Prendergast snapped was captured by the New Zealand Jurist: ‘‘Mr Barton, I have many times requested you to keep your seat and not to interrupt the proceedings of the court – notwithstanding such reiterated orders and rules you have continued interrupting the proceedings and I therefore declare that, unless you see fit to apologise to the court and express regret for such transgressions, you will be adjudged guilty of contempt of court.’’
It was the third time Prendergast had charged Barton with contempt, but this time he went on to jail him for a month.
The prison sentence was unprecedented in the British Empire and, Morris notes in his book, ‘‘raises questions about Prendergast’s state of mind’’ at the time.
As the Jurist pointed out, the closest similar case was in Sierra Leone.
‘‘It is a painful reflection that we should be under the necessity of going to Sierra Leone – a colony of negroes and mean whites – in order to find a parallel for the proceedings of our own court.’’
Barton’s time in Wellington’s public jail in The Terrace would prove productive, however. From behind bars, with his son L’Estrange running his campaign, Barton ran for and won the parliamentary seat of Wellington Central.
He got out of jail and petitioned the government to start an inquiry into the two judges, against whom he launched tirades under the protection of parliamentary privilege.
In August 1878, Barton’s Liberal Party colleague Cecil Albert De Lautour introduced a bill that would see a commission of inquiry set up to investigate his contempt charge, would look into the power of judges, and the role of Parliament in controlling badly behaved judges.
Parliament voted down the bill, as well as Barton’s call for an inquiry.
But he kept fighting, appealing for the colonial secretary to investigate his claims. Once more he was knocked back.
Barton was told the matter had reached its natural conclusion and, finally, with nowhere else to turn, he accepted defeat.
The next year, 1879, he lost his seat in Parliament and left New Zealand with his ‘‘legal and political career in ruins and ostracised from the establishment’’.
He returned briefly in 1888 as a Native Land Court judge but resigned after another bitter dispute with another judge. He left New Zealand permanently and died in Paris in 1903.
Chief Justice James Prendergast