Edward Gwynne, South Australian judge from 1859, backs Benjamin Boothby's views but supports his removal
Supreme court judge Edward Gwynne in private life was a farmer and viticulturist who In 1840 bought a large property in the area now known as Glynde after his home Glynde Place.
Edward Castres Gwynne, appointed the third judge on the South Australian supreme court in 1859, became the in-between factor in the war waged by his fellow judges Benjamin Boothby and the second chief justice Richard Hanson (appointed in 1861).
Gwynne was an attorney in London when John Jeffcott, South Australia’s first judge, unofficially appointed him clerk of the colony’s supreme court. He sailed out as emigrants superintendent on the Lord Goderich, nearly causing a mutiny among the passengers.
When governor John Hindmarsh refused to confirm the appointment as clerk, Gwynne went into a successsful general practice in Adelaide. He served as partner with Charles Mann, William Bartley, E. Klingender and W. J. Lawrence and became prominent at the bar, particularly in equity. He advised the South Australian Mining Association that opened the Burra Burra mine in 1845. While at the bar, Gwynne had been humiliated by Justice Boothby but he remained aloof from his disputes.
Gwynne was elected to the Legislative Council in 1857 and was attorney-general in premier John Baker’s 10-day government ministry. He resigned in 1859 to become the supreme court’s third judge as a way to resolve deadlock between judge Benjamin Boothby and the chief justice Charles Cooper.
Gwynne presided over the first circuit sittings of the court at Robe and Mount Gambier in February 1862.
Gwynne was a conservative who shared much of Boothby’s opposition to South Australian laws. But Gwynne had to side with Hanson against Boothby’s claim that Hanson was improperly appointed as chief judge. Gwynne had to. Boothby said the same thing about him.
As a conservative, Gwynne supported state aid to religion and members of the Legislative Council being appointed for life. Gwynne joined Boothby in doubting the validity of South Australia’s Real Property Act 1857-58, the Registration of Deeds Act 1862, the Local Court Acts and the existence of the court of appeals. The British parliament tried to fix this with the Colonial Laws Validity Act 1865.
Gwynne and Boothby parted ways when Cooper retired and Boothby wasn’t made chief justice. Richard Hanson was appointed in 1861 to replace Cooper.
Boothby claimed that Hanson was improperly appointed because he hadn't been admitted as a barrister in England, Ireland or Scotland. This equally applied to Gwynne, as Boothby continually pointed out.
Even after the British parliament passed the Colonial Laws Validity Act, Boothby continually impugned the right of the South Australian parliament to legislate on different issues. In 1866, Boothby refused to acknowledge the authority of the attorney-general.
Facing the public attacks on their validity, Hanson and Gwynne refused to sit with Boothby on the supreme court bench and in 1867 supported his removal that was approved by both houses of the South Australian parliament and confirmed in Britain after lengthy and costly wrangling.