“Certified Conveyancers” & Kerrigan’s Case

An extract from Early Deeds, Convict Attorneys and Certified Conveyancers by Dale Turner

The politics surrounding the notion of Conveyancers as a legitimate independent legal service provider and an alternative to solicitors has always been, as it is today, a politically contentious issue.

Kerrigan’s Case (1935) SR (NSW) 242, was a bitter dispute between the Institute of Conveyancers and the Law Institute (the predecessor of the Law Society of NSW). Fought at the height of the Great Depression, the case was well reported in the newspapers of the day, was highly political and though a success for Conveyancers, paradoxically contributed to the temporary demise of Conveyancers as a profession.¹

“Certified Conveyancers”

From 1847 to 1967 Conveyancers were treated as a third branch of the legal profession and incorporated into the various Legal Professions Acts and the names of the “Certified Conveyancers” (as they were known) were entered onto the roll of the Supreme Court of NSW.²

The formal recognition of this third branch of legal practitioner, was from the beginning, resisted by the other parts of the legal profession when a cohort of solicitors sought that Members of Parliament exclude certain provisions from the Taxation of Attorneys Bills of Costs and the Practice of Conveyancing (11 Vic. c.33) (1847), that referred to Conveyancers.³

Section 13 of Bill provided that:

“every person who shall for, or in expectation of, any fee, gain or reward directly or indirectly, draw or prepare any Conveyance or other Deed or Instrument in writing relating to any real estate or any proceedings in Law or Equity (other than and except Barristers or Attorneys and Solicitors of the Supreme Court or Certificated Conveyancers as hereinafter mentioned…) shall be deemed guilty of a contempt of the Supreme Court.”

S 14 provided that an applicant, to become a Certified Conveyancer:

“…would be examined by the Master of the Supreme Court as to their skill and knowledge and as to whether they were a fit and proper person. If an applicant passed the examinations and were deemed to be a fit and proper person, they were enrolled in the Supreme Court as a Certified Conveyancer who was authorised to draw, fill up and prepare any conveyance, will, deed, bond, lease or agreement for a lease or other contract whatsoever of or relating to any estate or property whether real or personal.”

However, the attempts to exclude the Conveyancer’s profession by the solicitors were unsuccessful and (11 Vic. c.33) was enacted on 1st January 1847.

Over the following years, there were numerous attempts to expunge the Certified Conveyancers from the legal profession including by Edmund Barton, Member of the Legislative Council of NSW, solicitor and later first Prime Minister of Australia who, in his Bills of Costs and Conveyancing Bill 1890, in proposing the abolition of Conveyancers, said:

“I wish to state the form which, after some consideration, I desire the Bill to take. In the present form, it is a Bill not only to put an end to the further appointment or creation of the class of practitioners called Certified Conveyancers, but also to allow the gentlemen now practising as such to obtain, after a certain examination, the status of solicitors.”

The Law Institute regarded investigating and initiating disciplinary proceedings against Conveyancers as one of its functions. However, the Institute threw their considerable influence behind Barton’s Bill and formally moved for expunging the profession of Conveyancer in a motion expressing the desirability for a monopoly of their solicitor members stating:

“With reference to the proposed Bill [Barton’s Bill] to repeal the 14^th section of 11Vic No 3 (the Taxation of Attorneys Bill of Costs and the Practice of Conveyancing Act 1847) relating to Conveyancers, the Council reported that in their opinion it is desirable that the section referred to should be repealed as, in view of the large number of admissions to the profession (solicitors) the public would be amply provided for as regards conveyancing.”⁴

Barton was not able to convince the majority of members that the expulsion of Conveyancers as a profession was in the public interest and the Conveyancers lived to fight another day.

Kerrigan’s Case

Surprisingly, the scope of legal work permitted to a Conveyancer was not challenged until 1935 when a dispute arose on an appeal for the disallowance of costs by the Registrar of Probates to Mr Paul T Fowler, Certified Conveyancer.

Mr Fowler had been appointed as the Executor of the Will of the late Jane Kerrigan, which provided that he could draw from the Estate to pay his ‘ordinary legal costs’. In disallowing certain costs, the Registrar held that: “they were not work for which a Conveyancer could legally charge.”

These costs were taken as to the assessment and payment of Federal and State duties with reference to the Estate which were taken as not included as legal work authorised to Certified Conveyancers by the Legal Practitioners Act 1898.⁵

Mr Fowler was successful in his appeal against the Registrar. However, the decision, at the prompting of the Law Institute, was appealed to the full bench of the Supreme Court, where it was required then to determine what was the work captured by the practice of a Certified Conveyancer and what was conveyancing work as permitted by the 1898 Act.

The matter was heard before the Chief Justice Mr Frederick Jordan, Mr Justice Stephen and Mr Justice Street. The Law Institute was represented by Mr Mason KC and Mr AG Saddington instructed by F W Walker and Sons, and the Institute of Conveyancers by Mr Wilfred Shepherd and Mr Gordon Wallace instructed by Alfred Owen Ellison who stated:

“A Conveyancer is entitled to advise generally on all documents dealing with the transfer of property, and anything arising incidental thereto. Section 40 of the Legal Practitioners Act indicates no limit to be put on the meaning of Conveyancer. The certificate, which is issued to a person considered to be fit and proper to be a Conveyancer, is not intended to be exhaustive of all the acts which may be performed by a Conveyancer. A Conveyancer is entitled to act for a deceased estate, apart from any applications that must be made to the Court. The disposal of an estate after Probate has been granted is eminently the work of a Conveyancer.”

Refuting Ellison, Mason K.C. and Saddington, for the Incorporated Law Institute of New South Wales argued:

“Section 40 of the Legal Practitioners Act, 1898, has no application, as it merely imposes a penalty in certain cases. It does not extend to the work of a Conveyancer.⁶ A Conveyancer can only do those matters which are set out in the certificate given under s16, and any matters which are incidental thereto. A bill of costs of a Conveyancer should be limited to those matters.”

Ellison, noted for being “a master of invective”⁷, delivered in his severely clipped Barrister’s argot, argued that the scope of a Conveyancer’s work was not limited to or intended to be limited by the Act, and Conveyancers testified as to the scope of work which members of their profession had practised without challenge for almost one hundred years.

The Law Institute argued back that the Conveyancers’ work within the Act should be interpreted with every limitation.

However, the appeal was determined in the Institute of Conveyancers’ favour. Chief Justice Sir Frederick Jordan (with whom Stephen and Street JJ agreed), stated that:

“The work which comes within the scope of a Conveyancer acting as such, must be determined by reference and common knowledge. Mr Pulling in the 3rd edition of his book on Attorneys, published in 1862, says at paragraph 481 that the practise of Conveyancing is confined to the drawing of legal documents and investigation and advising on legal title. The work of a Conveyancer as such includes preparing any document or doing any act for the purpose of creating, transferring or extinguishing any interest in any form of property, and anything incidental or ancillary to any such act, where the document or act is of a kind calling for something more than ordinary business knowledge, skill or ability. In New South there has never been any usage for Conveyancers to prepare papers for the purpose of proceedings in Court …. Within the scope of his profession, a Conveyancer may obtain such professional assistance as he deems necessary. Thus, it has always been the practice in New South Wales for Conveyancers to instruct counsel directly for the purpose of conferences, opinions, and the settlement of drafts.”

This decision must have seemed to the Conveyancer’s profession as a security for their survival long into the future. After all the dark clouds of the Depression that had covered all industry and hopes of home ownership, had at least at the very edges, shown small but certain signs of lifting. The Harbour Bridge, which had propped up the economic sky and kept it from falling, had been opened with much fanfare. Wasn’t this a sure sign of a golden economic future even if it was still a long way down the track?

However, at the time of the hearings, the Legal Professions Amendment Bill was making its contentious passage through Parliament. Attorney General, Edward Manning advised the House that the 1935 Bill had been provided to the Law Institute explaining that:

“The status of Conveyancer is not one that should not be continued for the convenience of the community. It is far better for the community that lawyers do the work that Conveyancers have been doing hitherto. For persons to do only sectional work of this class is undesirable.”

And informing the House that the Law Institute had been provided with a copy of the Bill for their comments, stated:

“No selfish motive is discernible in the efforts of these bodies. For many months past, members of the Incorporated Law Institute have given this Bill their most careful consideration. Not only has the Bill received the consideration of individual members of the profession; it has also been submitted to the Incorporated Law Institute, and the Council of the Bar of New South Wales.”

However, member of the Opposition, later to be Premier of NSW and Governor General of the Commonwealth, William McKell, a lifelong unionist with a suspicious eye for restrictive practices, opposed the provisions of the Bill to exclude Conveyancers saying:

“[The Bill] will bring more fish into the net of the lawyer and were inspired by members of the Legal profession” (who in their jealousy) say, “we are not going to allow any more Conveyancers; we are going to make a monopoly of solicitors.”

and:

“Conveyancers were highly regarded officers of the Court, with characters beyond reproach … The conveyancing examination is not an easy one to pass. Very few men who practise as Conveyancers pass their examinations at the first attempt.”

Also speaking against the provision of the Bill excluding Conveyancers, was Opposition Leader and former Premier of NSW, Jack Lang, who said of Conveyancers:

“Some of the finest men I have met have been Conveyancers, and this Bill will wipe them out. People have come to this House and have told us that if certain legislation were passed, they would be debarred from entering a profession, or attaining professional status. We have fought for those people and have eventually succeeded, so that they have been able to enter a profession. And some people will say that I am opposed to the Bill which was introduced to provide a solicitors’ fidelity guarantee fund. I am not opposed to that. I am strongly opposed to that portion of it which deals with Conveyancers, and I will vote against leave to introduce.”

Attorney General Martin interjected asking Lang:

“Does the Hon. Member propose to vote against the motion?”

Lang replied:

“That is so. … I am not prepared to agree to leave with regard to the Conveyancers. I do not like the Bill. Take that out.”

Minister for Justice and solicitor, Lewis Ormsby Martin assured Lang and William McKell that could be done in the Committee stage. This however never happened. The Bill was passed with McKell and Lang promising that a future Labor Government would restore the Conveyancer’s profession. The Bill was given Royal Assent eighteen days after Kerrigan and no more Conveyancers were to be admitted to the roll.

In 1967⁸, the last four remaining Conveyancers, three of whom were women, were provided with a solicitor’s practising certificates. As the Sydney Morning Herald in Tibbet’s article, Exit the Conveyancer noted:

“… Conveyancers whose guild is to be abolished may now become solicitors- The brook has run into the sea… Now all is to be ashes the conveyancers profession passes to be at one with Babylon and Tyre.” ⁹

However, in less than a generation, the Conveyancer’s profession would, as had the phoenix, rise from the ashes.

NOTES

¹  No records of the Institute of Conveyancers have been found. The Institute (for what it was) did not appear to have engaged in the political battle to abolish their profession that was occurring at the time of Kerrigan’s Case in the NSW Parliament.

²  An Act to regulate the taxation of Attorneys Bills of Costs and the practice of Conveyancing” (11 Vic. c.33 (1847) and Legal Professions Act 1898.

³  BIow J in the Tasmanian Supreme Court case of Gorgan v. Ellis [2004] observed that “The scope of the work of a conveyancer was considered in the Will of Kerrigan (L935) 35 SR (NSW) 242. ln those days the legal profession in New South Wales included not only barristers and solicitors, but also conveyancers.
Conveyancers formed a third and distinct section of the profession.“

⁴  SMH Law Institute minutes of meeting March 1891

⁵  The Legal Practitioners Act, 1898 (61 Vic. c.22) repealed, the 1847 Attorneys’ Bills and Conveyancing Act and re-enacted its provisions in relation to conveyancers.⁶  Unqualified practitioners. Legal Practitioners Act 1898 S 40. Every person not being—
(a) a barrister, solicitor, or certificated conveyancer; who shall, for or in expectation of any fee, gain, or reward, directly or indirectly, draw or prepare any conveyance or other deed or instrument in writing relating to any real estate or any proceedings in law or equity shall be deemed guilty of a contempt of Court and shall and may be punished accordingly for every such offence …

⁷  https://sconevetdynasty.com.au/aoe/

⁸  The name of any person who immediately before the commencement of the Legal Practitioners (Amendment) Act, 1967, was a certificated conveyancer under this Act, as then enacted, shall be entered on the roll of solicitors in the Court.”

⁹  SMH E H Tibbet “Exit the Conveyancer”.

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