Australian Dictionary of Biography

Edward Castres Gwynne (1811-1888), by Hammer & Co.

State Library of South Australia, SLSA: B 7015

Edward Castres Gwynne (1811-1888), lawyer, legislator and judge, was born on 13 February 1811 at Lewes, Sussex, England, son of William Gwynne (1774-1825), rector of St Michael's, Lewes, and of Denton. Educated at St Ann's Grammar School and an establishment near Sheffield, he was articled first with Charles Willis, attorney, of Cranbrook, Kent, and then with Few & Co., London. He practised as an attorney until 1837 when he was appointed clerk of court by Sir John Jeffcott, the first judge of the Supreme Court of South Australia. Jeffcott had no power to make the appointment but Gwynne had already quitted legal practice and decided to sail for Adelaide in the Lord Goderich as superintendent of emigrants. He was relieved of this office by the British consul in Brazil where the ship put in because the cabin-passengers were close to mutiny. Partly for this reason he did not impress Governor (Sir) John Hindmarsh and his appointment as clerk of court was not confirmed when he arrived on 15 April 1838. He was admitted to the Supreme Court, served as partner in turn with Charles Mann, William Bartley, E. Klingender and W. J. Lawrence and quickly became prominent at the Bar, particularly in equity. He was legal adviser to the South Australian Mining Association which opened the Burra Burra mine in 1845.

Gwynne was a nominee in the Legislative Council in 1851-54. He was defeated for East Torrens in the Legislative Council election of 1855, but after responsible government in 1857 was elected to the Legislative Council and in August was attorney-general in John Baker's ten-day ministry. He resigned from the council on 30 August 1859 because of his appointment as third judge of the South Australian Supreme Court on 26 February. In 1867 he became second judge and primary judge in equity. He was acting chief justice from December 1872 to June 1873. In February 1877 he was given leave to visit England and retired from the bench on 28 February 1881 on a pension of £1300. Apart from service in the Supreme Court he had acted three times as commissioner of insolvency, and in October 1885 was granted the title of Honorable.

Gwynne was the first member of the South Australian Bar to be elevated permanently to the bench. He was popular and respected although his political views were conservative. He was a staunch, if unsuccessful, supporter of state aid to religion, an upper chamber of members nominated for life by the Crown and representation related to property-holding, and was one of the most fervent opponents of Torrens's Real Property Act, 1857-58. The highlights of his judicial career centred on Judge Benjamin Boothby. While still at the Bar, Gwynne had clashed with Boothby and was contemplating departure to Melbourne rather than suffer more humiliation when in 1859 he was appointed third judge, partly in order to facilitate majority decisions and to provide for circuit courts, but also as a means of resolving difficulties between Boothby and the chief justice, Sir Charles Cooper. Despite Boothby's disrespect to his brother judges, particularly after Sir Richard Hanson succeeded Cooper, Gwynne managed for a time to remain aloof from the discord between Boothby and Hanson and between Boothby and the Bar.

The parting of the ways began when Cooper retired and Boothby was not made chief justice. Gwynne and Hanson overruled Boothby when he claimed that Hanson was improperly appointed because he had not been admitted a barrister in England, Ireland or Scotland. This argument was equally applicable to Gwynne as Boothby reiterated at every opportunity, although Gwynne joined Boothby in doubting the validity of the Real Property Act, 1857-58, the Registration of Deeds Act, 1862, the various Local Court Acts and the existence of the Court of Appeals. The imperial parliament tried to rectify matters by legislation which culminated in the Colonial Laws Validity Act, 1865, the full implications of which were accepted by Gwynne but not by Boothby who continued privately and publicly to attack the validity of the appointments of Hanson and Gwynne. They were finally compelled to refuse to sit with Boothby and in 1867 supported his amoval. Throughout these difficulties Gwynne stood out as a staunch upholder of the law as he saw it. His will and ability to do so speaks highly of his character, pertinacity and high repute in the colony. In May 1870 he resigned his primary judgeship after a dispute with the government. The governor refused to accept his resignation until convinced that Gwynne, despite settlement of other grievances, would not act both as primary judge in equity and as a member of the Full Court. In 1871 a new Equity Act was passed to empower the Executive Council to require any judge of the Supreme Court to act as primary judge in equity. This Act was strongly opposed by the judges who deemed it 'an attack on the Bench' and requested that it be reserved for consideration by the Crown, but the royal assent was given on 16 May and Gwynne was soon reappointed.

Independent and outspoken Gwynne was never appointed chief justice despite his seniority. Like his colleague, Randolph Stow, he was chagrined in 1876 when (Sir) Samuel Way, Q.C., was appointed to succeed Hanson as chief justice. Gwynne showed his displeasure by refusing private converse with Way. Further difficulties arising from his reluctance at an advanced age to adjust himself to the new system of procedure introduced by the Supreme Court Procedure Act, 1878, led to his retirement.

In private life Gwynne was a keen farmer, orchardist and viticulturist. In 1840 he bought a large property in the area now known as Glynde after his home Glynde Place. He also had a substantial farm in the Inman Valley where he bred horses for show and for racing. He was a keen horseman and in 1854 was appointed captain of a volunteer troop of cavalry. On 24 July he had married Marian, daughter of Richard Eales Borrow of Adelaide. He died at Glynde on 10 June 1888 survived by his wife (d. 19 December 1896) and eight of his thirteen children.

Mount Gwynne in the Northern Territory was named after him by John McDouall Stuart in 1860.