Archives, the Australian High Court, and the 'Strike of 1905'

By Priest, Susan | University of Queensland Law Journal, December 2013 | Go to article overview

Archives, the Australian High Court, and the 'Strike of 1905'


Priest, Susan, University of Queensland Law Journal


Finally ... when in Adelaide you ... received a letter from the Chief Justice threatening what you call the "deadlock ", but what/term "the strike " ...

Don't you think I should have been informed of the threatened crisis? ... If I was to bear the responsibility of what was threatened surely I was the person entitled to the notice of it.

A-G Josiah Symon to PM George Reid, 22 May 1905 (1)

I INTRODUCTION

On 1 May 1905, the leader for the Government in the Senate and the Attorney-General of the Reid-McLean ministry, Josiah Symon, (2) received a brief telegram from Prime Minister George Reid. It indicated there was a pressing need to reach an agreed solution with the Australian High Court in regards to the reimbursement of the Court's travelling costs associated with its operation as a circuit Court. (3)

Symon was in Adelaide during the parliamentary recess and possibly attending to an important litigation matter in his private legal practice. (4) It appears he was unaware that on the following day, the High Court, in response to the continued uncertainty surrounding the payment of its running expenses and the number of personnel required to staff the Court, intended to suspend its sittings and go on 'Strike'. (5)

Before the Attorney-General had time to respond to Reid's first telegram another arrived from the Prime Minister. It contained the startling and extraordinary revelation that the 'Judges including O'Connor [would] not hold court [for the] Melbourne fish cases if travelling expenses allowance withheld'. (6)

The Attorney-General's reply to Reid's communication was one of utter disbelief. '[D]o I clearly understand [the] Justices refuse [to] hold sittings at seat of Court Melbourne unless [the] Executive concedes [to] their demand [for] travelling expenses ... was that the reason for adjourning trial fixed for today at great deal expense and inconvenience [to] suitors witnesses jurors counsel ...' (7)

Symon also expressed that the High Court's decision to suspend its sittings was something 'which no Government and no country could endure'. (8) Further, the written exchanges between the Attorney-General and the High Court, which had begun in December 1904, (9) had, by this time, escalated into a bitter and protracted disagreement. Symon on numerous occasions (10) had unsuccessfully sought the approval from the Bench to reduce what he earlier described as the 'burden imposed upon this Commonwealth for High Court ... expenditure'. (11) Now, his priority had been changed. He was seeking an immediate explanation for an unprecedented event in Australian legal history, the temporary weeklong cessation of judicial duties which would make newspaper headlines around the country. (12)

II CORRESPONDENCE: THE HIGH COURT DEADLOCK, MAY 1905 TO JULY 1905

The Attorney-General wrote to Justice O'Connor on 4 May, as the presiding single Judge for the scheduled Melbourne sittings, demanding an urgent clarification:

   Referring to the Jury cases in original jurisdiction appointed to
   be tried before you at seat of the Court in Melbourne last Tuesday,
   and to the adjournment of the Court without application by the
   parties or reason given, it is represented to me that great expense
   and inconvenience had been occasioned to parties, witnesses,
   jurors, solicitors and counsel; I shall, therefore, be obliged if
   you will state to me the reason for the adjournment of the Court,
   and also whether you propose to proceed with the trials next
   Tuesday, and if not, for what reason, as justice should not be
   delayed? You will forgive my pointing out the importance of an
   immediate reply. (13)

O'Connor's response later the same day was brief and to the point. It indicated that 'the sittings appointed to be held before a Justice of the High Court were adjourned by an order of the Court sitting here [Sydney] on Saturday morning last, and then made public. …

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