John Musgrave Harvey

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Sir John Musgrave Harvey was born on 22 December 1865 at Hampstead, London, the son of Reverend Charles Musgrave Harvey and his wife Frances Harriet nee Brewster. He was educated at Marlborough College, Wiltshire (1878-1884) under a foundation scholarship, and at Keble College, University of Oxford (BA 1888), under a classical scholarship. His degree was recognised ad eundem by the University of Sydney in 1914. (1)

Harvey came to Sydney in 1889 as a tutor. He made a career change from education to the law after meeting with Langer Meade Loftus Owen on the voyage. Harvey was called to the New South Wales Bar on 21 March 1892 and from 4 August 1890 to 31 January 1893 was an associate for Owen's father, Sir William Owen, Chief Judge in Equity, Supreme Court of New South Wales. Harvey practised out of Wentworth Court (1893), 151 Phillip Street (1894-1910) and 143 Phillip Street (1911-1913). He specialised in equity. (2)

Harvey was a reporter for the New South Wales Law Reports and the New South Wales Weekly Notes from 1892 to 1900, in the equity jurisdiction. He was author of 'Service of Equitable Process' (1898) and co-author with George Edward Rich and Arthur Newham of 'The practice in Equity: being the Equity Act 1901, the Trustee Act, 1898, the Conveyancing and Law of Property Act 1898' (Sydney, 1902). (3)

On 15 April 1913 Harvey was appointed a Judge of the Supreme Court of New South Wales. He was the junior Judge in Equity from at least 1918 till 10 February 1925 when he was appointed Chief Judge in Equity, following Philip Whistler Street's appointment as Chief Justice. Harvey was the junior Judge in Bankruptcy and Probate, under Justice Philip Whistler Street, from at least 1918 to 1921 when the jurisdictions of Bankruptcy and Probate appear to have separated and Harvey became sole Judge in Probate, a position he held till 1935. With the retirement of David Gilbert Ferguson on 6 October 1931, Harvey became Senior Puisne Judge. He therefore acted as Chief Justice from 30 June 1933, when Sir Philip Whistler Street went on retirement leave, until the appointment of Street's replacement, Frederick Richard Jordan, on 1 February 1934. (4) Harvey was farewelled by his fellow Judges of the Supreme Court on 19 December 1934. He had decided to retire due to failing eye-sight and noted that 'though justice may be blind, Justices must not.... it is because of my keen sense of my duty to the public and to the profession that I decided that I should apply to the Government to be allowed to go on retiring leave.' (5) On 31 January 1935 he resigned from the positions of Judge in Probate and Chief Judge in Equity. He retired as a Judge of the Supreme Court on 31 January 1936. (6)

Harvey was knighted on 3 June 1933 for his services as Senior Puisne Judge in New South Wales. (7)

Harvey conducted three Royal Commissions for the New South Wales Government. The first was the Royal Commission to inquire into the terms and provisions of a Bill to amend and consolidate the law of property, and to simplify and improve the practice of conveyancing; and for such purposes to amend certain Acts relating thereto. By four commissions dated 14 February, 25 April, 10 July and 11 September 1918, Harvey was directed to examine the Bill introduced by John Garland into the Legislative Council, seek professional opinion on it from the Incorporated Law Institute and others, and if necessary amend, re-draft or divide it into two or more Bills. His report of 12 November 1918 explained the Bill clause by clause and emphasised the importance of uniformity in the laws relating to land, no matter whether held under Old Title or Torrens Title. The Bill became the Conveyancing Act, 1919. (8)

The second was the Royal Commission to inquire into matters relating to the administration of the Child Welfare Department. This Commission was created on 13 April 1927 and Harvey reported on 11 June 1927. The Commission followed criticism of the Secretary of the Child Welfare Department, WE Bethel, in the annual report of the Auditor General's Department. A subsequent Public Service Board inquiry, at which Bethel was able to respond, found the charges without substance. Harvey was asked to examine if the Auditor-General's reports were justified and also to look at criticism of Frederick Albert Coghlan, the Attorney General, by Thomas Davies Mutch, Minister of Education, on 10 March 1927 in the Legislative Assembly. Harvey agreed with the Public Service Board's report and not the Auditor-General's report. He described the latter as secret and one-sided. Harvey found that Mutch's speech, although emphatic, was 'borne out by facts'. (9)

The third was the Royal Commission regarding the contract entered into by the Municipal Council of Sydney for steam-raising plant at Bunnerong Power-house. This commission was created on 9 May 1928 and reported on 12 September 1928. It examined the tendering process for the plant, the contract between the Municipal Council of Sydney and Babcock and Wilcox Ltd, and whether aldermen and/or employees accepted a bribe. Harvey found that 10,000 pounds was paid to the Silas Young Maling, Acting General Manager of the Electricity Department, with some of the money to be given to unnamed Labour aldermen. Whether any aldermen received money was not able to be proved. Harvey concluded that the tender of Babcock and Wilcox was the best tender and 'would have been accepted if no bargaining or promise of money had taken place on the part of the tenderers'. (10)

Harvey also conducted an inquiry for the Australian government. He was appointed under the War Precautions Act to investigate whether the military detention of seven men of Irish descent in Darlinghurst Gaol was necessary for public safety. From 7 August to 30 August 1918 he conducted the 'Inquiry on release of Irish Brotherhood Internees' and delivered his report on 26 September. The Government decided that the men should continue to be detained. During World War I Harvey was also an Official Visitor to the Prisoner of War internment camps. (11)

Harvey was active in the community. A devout Anglican, for 28 years he was warden of St Mark's Church, Darling Point, and he was Chancellor of the Diocese of Sydney from 1934 to 1938. He was foundation chairman of the Council of Cranbrook School, Bellevue Hills, from 1918 to 1938. In the 1920s he was president of the Sydney Madrigal and Chamber Music Society. (12)

Harvey died at Double Bay on 13 June 1940, survived by his wife, Pauline Beatrice nee Ward, whom he married on 4 January 1895 at Woollahra, and one son and three daughters. (13)

Endnotes
1. Fred Johns, Fred Johns's Annual, London, Sir Isaac Pitman and Sons Ltd, 1914, p.93; Fred Johns, Who's Who in the Commonwealth of Australia, various, 1922, p.121; 1927-8, p.115; Who's Who in Australia, Melbourne, Herald Press, 1933-34, p.154; 1935, pp.224-5; 1938, p.238; Australian Law Journal, Vol.14, pp.118-9 (12 July 1940); FC Hutley, 'Harvey, Sir John Musgrave (1865-1940)', Australian Dictionary of Biography, Online Edition, http://www.adb.online.anu.edu.au/biogs/A090225b.htm (cited 11 January 2008); University of Sydney Calendar, 1915, pp.464, 567, http://calendararchive.usyd.edu.au/Calendar/1915/1915.pdf (cited 12 May 2008).
2. Who's Who in Australia, op.cit.; FC Hutley, 'Harvey, Sir John Musgrave (1865-1940)', Australian Dictionary of Biography, op.cit.; Barristers Admission Board; NRS 13665, Roll of Barristers, 15 June 1876 - 1 December 1926; Reel 2147, p.7; New South Wales Blue Book, Sydney, NSW Government Printer, 1890, p.91; 1892, p.133; 1893, p.139; New South Wales Law Almanac, Sydney, NSW Government Printer, 1891, p.25; 1892, p.25; 1893, p.35; 1894, p.36; 1911, p.55; 1913, p.59.
3. FC Hutley, 'Harvey, Sir John Musgrave (1865-1940)', Australian Dictionary of Biography, op.cit.; New South Wales Law Reports, Sydney, Charles F Maxwell/Hayes Brothers, Vol.13, 1892; Vol.14, 1893; Vol.21, 1900; Libraries Australia, http://librariesaustralia.nla.gov.au/apps/kss (cited 27 March 2009).
4. New South Wales Government Gazette No.57, 16 April 1913, p.2257; No.22, 13 February 1925, p.908; State Reports New South Wales, Sydney, Law Book Company of Australasia Ltd, Vol.13, 1913; Vol.18, 1918; Vol.21, 1921; Vol.25, 1925, pp.iii, vi; Vol.32, 1932; Vol.33, 1933, pp.v-vi, ix; Vol.34, 1934; Australian Law Journal, Vol.7, p.133 (15 July 1933).
5. Australian Law Journal, Vol.8, p.318 (15 January 1935); State Reports New South Wales, op.cit., Vol.34, 1934, pp.v-vii.
6. New South Wales Government Gazette, No.36, 15 February 1935, p.640; New South Wales Law Almanac, Sydney, NSW Government Printer, 1935, p.42; 1936, p.30; 1937, p.30.
7. It's an honour website http://www.itsanhonour.gov.au (cited 23 January 2008).
8. D H Borchardt, Checklist of Royal Commissions Select Committees of Parliament and Boards of Inquiry, Part IV New South Wales 1855-1960, Bundoora, La Trobe University Library, 1975, p.276; Joint Volume of Papers presented to the Legislative Council and Legislative Assembly, 1918, Vol.6, pp.673-684, esp 673, Sydney, NSW Government Printer, 1919.
9. D H Borchardt, op.cit., p.301; Joint Volume of Papers presented to the Legislative Council and Legislative Assembly, 1927, Vol.2, pp.775-789, esp 789, Sydney, NSW Government Printer, 1927.
10. D H Borchardt, op.cit., p.302; Joint Volume of Papers presented to the Legislative Council and Legislative Assembly, 1928-29, Vol.1, pp.773-784, esp 782, Sydney, NSW Government Printer, 1929.
11. Patrick O'Farrell, 'Dryer, Albert Thomas (1888-1963)', Australian Dictionary of Biography, Online Edition, http://www.adb.online.anu.edu.au/biogs/A080369b.htm (cited 27 March 2009); Northern Territory Times and Gazette, 10 August 1918, p.12, National Library of Australia, http://ndpbeta.nla.gov.au/ndp/del/printArticleJpg/3290831/3?print=y (cited 27 March 2009); Argus (Melbourne), 27 September 1918, p.7, National Library of Australia, http://ndpbeta.nla.gov.au/ndp/del/printArticleJpg/1403518/4?print=y (cited 27 March 2009); FC Hutley, 'Harvey, Sir John Musgrave (1865-1940)', Australian Dictionary of Biography, op.cit.
12. ibid.
13. ibid.; Who's Who in Australia, op.cit.; State Reports New South Wales, op.cit., Vol.40, 1940.

Notes

Judge, Supreme Court of New South Wales, 15/04/1913 - 31/01/1936
Chief Judge in Equity, Supreme Court of New South Wales, 10/02/1925 - 31/01/1935
Judge in Probate, Supreme Court of New South Wales, 1921 - 31/01/1935
Acting Chief Justice, Supreme Court of New South Wales, 30/06/1933 - 31/01/1934
Commissioner, Commonwealth Inquiry on release of Irish Brotherhood Internees, 07/08/1918 - 26/09/1918
Commissioner, Royal Commission to inquire into the terms and provisions of a Bill to amend and consolidate the law of property, and to simplify and improve the practice of conveyancing; and for such purposes to amend certain Acts relating thereto, 14/02/1918 - 12/11/1918
Commissioner, Royal Commission to inquire into matters relating to the administration of the Child Welfare Department, 13/04/1927 - 11/06/1927
Commissioner, Royal Commission regarding the contract entered into by the Municipal Council of Sydney for steam-raising plant at Bunnerong Power-house, 09/05/1928 - 12/09/1928