Arthur Blackburn (pre VC) thrown as articled clerk into odd Adelaide courtroom battle in 1914 over silent magpie
Future World War I hero Arthur Blackburn was thrown pre-war, as a young articled legal clerk, into the 1914 Adelaide strange courtroom battle over ownership of a magpie, who refused to say a word. Rundle Street fruiterer "John" Sym Choon (at left with his family) won the case against neighbour and major retailer and exporter of birds John Foglia.
Arthur Blackburn, a lawyer who, in World War I, became the first South Australian to receive the Victoria Cross, was thrown, just before the war, into a novel courtroom battle.
On January 27, 1913, John Foglia and one of his sons went searching for a magpie that had escaped from Foglia’s Rundle Street, Adelaide city, store five days earlier. They heard a distinctive call from the premises of a Rundle Street neighbour: fruiterer “John” Sym Choon. Later, the two Foglias visited Sym Choon and demanded the return of the magpie. Sym Choon refused, saying it was his. In an argument, Sym Choon allegedly threatened to punch John Foglia on the nose.
Foglia took legal action to get back the magpie. Foglia’s shop was a principal business for selling and exporting Australian native birds to influential international collectors such as Baron Rothschild. In Adelaide, the influential clients included a senior legal fraternity member, C. B. Hardy, of solicitors Fenn and Hardy. With a one-acre garden on Payneham Road, Hardy also ran a mini zoo of exotic animals and had open account at Foglia’s shop for birds to add to his aviary.
Fenn and Hardy specialised in trusts and estates and he emphasised keeping people out of court. Determined to get his magpie,Foglia persuaded Hardy to go to court but he assigned the case to his articled clerk: Arthur Blackburn. Blackburn had only graduated in law from Adelaide University in 1913. Hardy saw the slightly-built Blackburn’s fighting qualities when he intervened and chased away two men who’d assaulted Hardy on the street.
Armed only with his client’s Foglia’s unwavering claim to owning the magpie, the 20-year-old Blackburn arrived at Adelaide Local Court to face adversaries very comfortable on that terrain. Sym Choon had arrived from Guangdong province in about 1890 and started hawking fruit and vegetables from a barrow. In 1908, the family moved to live and trade at Rundle Street East premises. Well-known among Adelaide’s small Chinese community, and a respected trader and family man, Sym Choom was familiar with the courts: in civil actions against his landlord and in criminal cases arising from yobbish attacks on his cart and premises.
In the magpie case, Sym Choon had an experienced advocate in Richard Hedley Lathlean, a partner Holland and Lathlean, and known in the courts for his “zeal to win” and that “no barrister has pleaded the cause of his clients more determinedly or earnestly”. The hearing was before remarkable public servant James George Russell: commissioner of taxes, stamps, insolvency and a stipendiary magistrate; also previously a master of the supreme court and registrar of companies.
Russell’s “sombre and consciously gentlemanly demeanour in court” was invaluable in Foglia v Sym Choon. A clearly-emotional Foglia expressed his attachment to the magpie as a pet that wasn't for sale. He’d taught it to say “Wakool”, the name of a one of his trading trips. No other magpie could say that and he said he’d heard it from Sym Choon’s premises on January 27. Lathlean successfully intervened to restrict Foglia’s testimony to the legally permissible.
Sym Choon told the court that this was the first pet magpie he’d owned. His wife, who spoke only Chinese, had taught it to say the Chinese word for mother. Sym Choom produced a receipt for buying the magpie, with a cage, at the market in 1912, for five shillings. Sym Choon's wife, through an interpreter, supported her husband’s account. When the magpie was produced in court, she tried, unsuccessfully, to persuade it to speak.
Russell suggested Foglia should encourage the bird to say “Wakool” in court. A frustrated Foglia declined, saying that only happened in the early morning. The bird maintained “a golden silence”.
Russell deliberated in favour of Sym Choon. Beating a retreat to the office, young Blackburn may have felt, like Hardy, that a day in court was much overrated.