Tipperary’s Devil Advocates

BY LLOYD GORMAN

Pennefather is a name that is perhaps more recognisable to Australians than Irish people who actually share a familiarity with the moniker. There is the Pennefeather River on the western Cape York peninsula in far north Queensland but that geographical is unconnected to the name holder of this article. A Pennefather Street in Canberra and much closer to home again, a Pennefather Lane in Cottesloe, are connected with the story of a senior figure in the legal history of the Swan River colony and West Australian state. Richard William Pennefather (16 July 1851 - 16 January 1914) was the Attorney General of Western Australia, an acting Justice of the WA Supreme Court and triple term member of the Legislative Council. Pennefather was born in Tipperary, Ireland but his family moved to Melbourne, Victoria when he was a child. Following a private education at St. Patrick’s College and then Melbourne University he gained his BA and LLB degrees in 1878. He went not o work in the Crown Solicitors office for ten years. He was admitted to the NSW Bar in 1880 where he worked for two years before returning to Melbourne. (He was also admitted to the Queensland Bar in 1880 but never practiced there) In March 1896 he came to Western Australia and was admitted to the Bar here at the end of 1896. A year later he convincingly won the Legislative Assembly seat for Greenough. He was then appointed Attorney General in the Cabinet by Premier John Forrest and served for two terms until March 1901 when he resigned his parliamentary position to be appointed KC and Acting-Justice of the WA Supreme Court during a leave of absence by the Chief Justice. In 1902 he spent another three years in private practice before eventually returning to politics, winning a place in the Legislative Council. The Cottesloe Civic Centre was originally his family home (he had a wife and daughter) that he had built in 1898. He died there in January 1914 and is buried at Karrakatta Cemetery. Incredibly there was another Richard Pennefather from Tipperary who carved out a reputation at the Bar before this Richard Pennefather and who had a parliamentary career. It is not clear if or what connection there might be between the two men but this writer could not find a link, and there is evidence to suggest they were not of the same family. Richard Pennefather who came to Australia was a Catholic - who we know for example was married in St. Mary’s Cathedral, Perth - while the other Richard Pennefather came from a Protestant family. Our second Richard Pennefather was a judge who lived from 1773 until 1859. He was the eldest son of one William Pennefather of Knockeevan, a member of the Irish House of Commons for Cashel. Amongst his siblings Richard had a slightly younger brother Edward who was also a distinguished barrister and judge and would hold the office of Lord Chief Justice of Ireland. Richard went to primary school in Portarlington, Co. Laois and then in Clonmel, graduated from University College Dublin and the Middle Temple (one of four Inns of Court in London) and was called to the Irish From top to bottom: Richard William Pennefather; Charles Gavan Duffy; Sir Walter Dwyer.

Bar in 1795. He and his brother Edward were amongst the leading practitioners in the Irish Court of Chancery (established in the year 1232 as a court to exercise ‘equitable jurisdiction’ in Ireland). English Prime Minister Robert Peel made Pennefather solicitorgeneral of Ireland during his

Above: Print [published 1844, Dublin by Robert Flanagan] shows head-and-shoulder portraits of Daniel O’Connell, John O’Connell, Thomas M. Ray, Rev. Peter J. Tyrrell, Richard Barrett, Charles G. Duffy, Rev. Thomas Tierney, John Gray, and a full-length portrait of Thomas Steele as he stands before “Judge Burton, Chief Justice Pennefather, Judge Crampton, [and] Judge Perrin”. Portraits are framed by vines with shamrocks. Repository: Library of Congress Prints and Photographs Division Washington, D.C. USA.

brief administration of 1835 and again in 1841. A short time later he was appointed chief justice of the queen’s bench and was sworn of the Privy Council. According to the Dictionary of Irish Biography (DIB)Pennefeather presided at the 1844 state trial of Daniel O’Connell - the brilliant lawyer heroically hailed ‘The Liberator’ or ‘Emancipator’ for his role in fighting for Irish independence from England and justice in the courts - and Charles Gavan Duffy, another famous nationalist leader. The two men, and their associates were tried on charges of conspiracy to overthrow the Act of Union (1801) which had abolished ‘Grattans Parliament’ in Dublin and transferred power back to London. “At the trial [Pennefather] maintained that, while O’Connell and his associates had not behaved in a secret or treacherous manner, their behaviour still fell within the legal definition of conspiracy,” the DIB states. “Later criticised for having given the prosecution counsel too much instruction, he found the defendants guilty, but the decision was later overturned in the house of lords.” O’Connell and Pennefeather were well acquainted and encountered each other previously at the Bar and even held the other in high regard despite radically different views. There is a great story about about the famous Doneraile trial in 1829 in Cork in which O’Connell who had ridden all night to get to the court room and arrived as the trial was starting was allowed by Pennefather to eat his breakfast in the court, much to the chagrin of the Prosecution. “That a major miscarriage of justice was averted owes a good deal to the eloquence of Daniel O’Connell but also to the integrity of the judges, especially Pennefather,” a Wikipeida entry about the trail states. Gavan Duffy, O’Connell’s coaccused in the 1844 trial, was another giant of the Irish cause and but would also go on to have a significant impact on Australian public life. Born in Monaghan in 1816 he went to Dublin at the age of 16 to become a journalist but would later be admitted to the Kings’s Inn in 1839, after which he went to Belfast to edit a weekly Catholic newspaper. He returned to Dublin in 1842 - a married man -and with the help of two promising young barristers Thomas Davis and John Dillon founded his own weekly paper the Nation, a voice for the Young Ireland movement. He hoped his appear would “change the mind of his generation and so to change their institutions”. Daniel O’Connell, who had resurrected the fight for Catholic Emancipation, and supported his kindred spirit and the Nation, which Duffy developed into a widely read and influential publication. Peter Lalor of Eureka Stockade fame was another associate of Duffys in Ireland. For a host of reasons Duffy walked away from the political situation in Ireland in 1855 and took his family to Australia where he was fêted in Sydney and Melbourne. He set up as a barrister in Melbourne but after some encouragement entered parliament where he would have a long and active role in various

administrations and different ways. As he did with freed him up to concentrate on his legal career, which Ireland Duffy left Victoria and retired to Nice, France proved to be a colourful one. where he could live comfortably of his parliamentary “In his profession Dwyer specialized as counsel in pension. When his wife died in 1881 Duffy brought civil and appeal cases before the Full Court of Western his daughters from Victoria to France to look after his Australia and the High Court of Australia,” his profile household. He died in February 1903 and was buried in the Australian Dictionary of Biography adds.”In at the Glasnevin Cemetery, alongside other Young 1915 he took into partnership J. P. Durack and, in 1917, Ireland notables, as part of the impressive round tower W. H. Dunphy, forming the firm of Dwyer, Durack & complex built to commemorate Daniel O’Connell. Dunphy. Dwyer was defence counsel for several of Duffy was married three times in his life and had the defendants in the Perth Industrial Workers of the several children who became accomplished figures. World trials of 1916. In 1919 as a leading member of His oldest son from his second wife Sir Frank Gavan the Celtic Club, and supporter of Irish nationalism, (1852-1936) became Chief Justice of Australia while he led a prohibited march through the city on St another son George Gavan Duffy from his third wife Patrick’s day. He was prosecuted, convicted and fined; would become President of the Irish High Court from having refused to meet the fine, he only escaped 1946 to 1951, having entered the court just ten years imprisonment because a supporter paid for him. To earlier. George too would serve in parliament - the mark the occasion, the Celtic Club presented him with Irish parliament - and was minister for foreign affairs an illuminated address. On the establishment of the briefly in the new Irish government of 1922. new State Court of Arbitration in 1926, Dwyer agreed Another county man of Duffy who followed a legal life to Australia was one Walter Dwyer. Dwyer was born at Carrick-on-Suir, Tipperary and was schooled at the local Christian Brothers seminary. At the age of 16 he migrated to Victoria where he even at such a young age he taught at the Christian Brother College, East Melbourne where he was the junior of many of his students. The young Dwyer came West during the gold boom and worked as a government clerk in the education department for nine years. During this time he also studied law part time and was articulated to C.Lyhane at Kalgoorlie and Boulder in 1904 but returned to Perth the next year where he completed his articles with Villeneuve Smith & Lavan! Dwyer finished his legal studies remotely through the University of London in 1906 and was admitted to the West Australian Bar in 1907. He then practiced in ‘at a monetary sacrifice’, to become its first presiding judge. He strongly opposed ‘sweetheart’ deals between unions and employers, in which both parties would combine over the question of overaward payments. He scrutinised such agreements closely and, if suspicious, would call the parties together to discuss the real meaning of the documents. Thus he controlled the economic situation and eliminated dealings not strictly in accordance with the public interest or the Arbitration Act. He fully understood industrial problems and gave all his judgements fairly and thoroughly. On his retirement in 1945 he left a record which his successors found hard to equal, and it was widely felt that the State’s freedom from industrial trouble was largely due to the confidence in the court that he had created. in 1946 he advised and supported his successor in settling a major transport strike.” “ In 1919 as a leading member of the Celtic Club, and supporter of Irish nationalism, he [Dwyer] led a prohibited march through the city on St Patrick’s day.” Boulder and Kalgoorlie and Perth. A talented orator, philanthropist and arts enthusiast “Dwyer was over six feet (183 cm) tall; handsome, with a resonant voice he had a slight Irish brogue Dwyer was one of the first trustees of Perth’s Public Library, Museum and Art Gallery of Western Australia. which he used most effectively in public speaking,” E.A. Dunphy writes in the Australian Dictionary of Biography. He was elected to the Perth seat in the Legislative Assembly for the Labor Party and he helped to draft the 1912 Industrial Arbitration Act, He also remained faithful to Irish and Christian traditions according to the biography. Knighted in 1949 for his services to the law and community Sir Walter Dwyer died in March 1950, aged 75, in Subiaco from kidney failure. get the Money Lenders Act (1912) - which protected Like Pennefeather, he was buried in Karrakatta borrowers through - parliament and the Landlord Cemetery but unlike his counterpart Dyers grave is and Tenant Act (1912). He lost his seat in 1914 but this included on a historic walking trail of the graveyard.