STEPHEN, SIDNEY (1797-1858) was born in 1797, the son of John Stephen, of Somerleaze, Somerset (afterwards puisne judge and acting chief justice of New South Wales) and cousin of James Stephen, Under-secretary for the Colonies. His father practised at St Kitts in the West Indies and in 1800 was appointed solicitor-general of the Leeward Islands. Sidney probably received some of his education at the Honiton Grammar School, Devon, and possibly also at the Charterhouse. He entered at Lincoln's Inn in Jan 1816, when his father was practising at St Kitts.

Called to the bar in 1818, he married at St Kitts Margaret Adlam, and practised there for some years. Then, his father having been appointed a judge in New South Wales, he proceeded there and entered into practice. Legal business in Sydney was then in the hands of a close monopoly, and Stephen first emerged from obscurity by undertaking the unpopular side in a libel case in which a Sydney newspaper was involved and which the monopoly would not take up. He was made commissioner of the court of claims in 1834, the year in which his father died. Five years later he moved to Hobart, where his brother (afterwards Sir Alfred Stephen) was Attorney-general. There he practised with some success until Dec 1842, when an unfortunate collision with Mr Justice Montague led to his being disbarred and inhibited from practising in any of the courts of the colony. The case was referred to the Home Government; but meanwhile Stephen, with a wife and seven children to provide for, had to leave the colony. For a while he was engaged in farming at Twofold Bay. On selling out he was called upon in the courts to fulfil his agreement to sell the farm 'with all stock and assigned labour' and came under severe censure by Judge Willis for pleading his own illegal act in covenanting to sell human beings. He went into practice in Melbourne in 1844 and was granted a provisional admission in 1845. Courteous and fluent, he attained considerable popularity and had soon a good practice, especially in the lower courts. He was a staunch supporter of the Wesleyan Church and frequently participated in their devotional meetings. Between 1847 and 1849 he addressed many anti-transportation meetings in Melbourne.

Meanwhile, after a lapse of four years, the appeal to the Queen in council was decided by the Privy Council's judgment (29 Mar 1847) reversing the order of the Tasmanian supreme court and declaring that Stephen's 'private character and professional conduct were unimpeached.' An appeal was now made to the Colonial Office to find Stephen suitable public employment by way of compensation for loss sustained in consequence of being disbarred.

Earl Grey recommended that a post be found for him at Port Phillip, but no opening occurred, and it was not until Jan 1850 that he was appointed by royal warrant to be puisne judge in New Zealand. He took the oath in Aug and was assigned the Otago district, but found nothing to do from the time of his arrival until his departure in Mar 1852. He took a keen interest in the affairs of the settlement; was president of the Horticultural association (and of the Otago Agricultural association, into which it developed), and presided at public meetings demanding road communication with Port Chalmers and the disposal of the surplus customs revenue of the port for local works. In Otago also Stephen did not entirely escape the acerbities of party feeling. He opened his court with due ceremony in Jun 1851, fining jurors for failing to attend, and receiving counsel and others at a levee. A few months later he was indiscreet enough to bring an action against several magistrates and others for conspiracy, and in turn became defendant in a charge before the magistrates for assault upon one of them. The bench found the assault not proved, and one of the aggrieved challenged the judge to a duel.

A few weeks later he left the province to relieve Martin in the northern district. From Sep 1853 he was acting as chief justice. He administered the oath to members of the second Parliament (15 Apr 1856). He was still employed as sole judge in the Colony pending the arrival of the new Chief Justice (Arney), when he died at Auckland on 13 Jan 1858.

Stephen had his good qualities. He was accessible, frank and genial; thoroughly independent and abounding in generosity to the poor, whom he freely assisted with legal advice. On the other hand evidence has already been adduced that he was litigious to a degree. Throughout his residence in Australia he was in difficulties over titles to land. In 1829 he acquired at Argyle the full 2,560 acres which a settler could hold under certain ordinances. In the previous year he had purchased at auction 360 acres at Windsor. No title was issued and he made no payments. When the department discovered in 1842 that the land had been awarded in 1804 to another grantee Stephen was offered £100 compensation, but declined it, and pursued his fruitless claim. In 1852 he declared illegal a proclamation of Governor Grey offering land for sale at less than a pound an acre. Grey ignored the judgment as being contrary to law, and the Secretary of State supported him (Mar 1853).

Family information from Mr Justice Milner Stephen and Miss M. E. Carre-Riddell; Lincoln's Inn registry; Col. Gent.; Hist. Rec. Aust. (notably ser. i, vol. xxv, p. 530); Public Library of Victoria; Mitchell Library; Victorian Law List; Alfred Stephen, Jottings from Memory (1891); Garry Owen, The Chronicles of Early Melbourne; George Stephen, Life of Sir James Stephen (c. 1870); Wakelin; Hocken, Otago; James Barr; Otago Witness, 6 Jun 1851; Wellington Independent, 24 Feb 1858. Portrait: General Assembly Library.

Reference: Volume 2, page 167

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