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When the First Fleet arrived in Sydney civil and criminal courts had already been established for New South Wales by Letters Patent known as the Charter of Justice of 1787.
The colony's Deputy Judge-Advocate, David Collins sitting with six naval or military officers, heard criminal matters and, sitting with a bench of two 'fit and proper' residents of the colony appointed by the Governor, Collins also heard and decided civil matters. Although handicapped by his lack of legal training, Collins performed his duties conscientiously. Unfortunately, the same cannot be said for most of his successors and the many abuses which came to light during the following years brought the early courts into low repute.
For more than 20 years, successive Governors tried to have the constitution of the courts improved to ensure that justice would be guaranteed to all classes in the infant colony. But it was not until 1809 that the Colonial Office in London made the modest concession of appointing a barrister, Ellis Bent, as Deputy Judge-Advocate to the colony. However, no changes were made to the powers of the office or the constitution of the courts in NSW which at the time embraced most of the eastern half of the continent.
Bent protested against the shortcomings of his office, which was then subservient to the Government, and against the method of criminal trials which he likened to court martials. But his protests fell on deaf ears. His proposals to introduce trial by jury and to reform the system of criminal trials were rejected.
Two new courts were established by a Second Charter of Justice on 4 February 1814, but these, being concerned only with civil matters, did little to improve either the administration or the quality of justice in NSW.
Aware of dissatisfaction in the colony the British Government appointed John Thomas Bigge, then Chief Justice of Trinidad, to conduct a Royal Commission of Inquiry into conditions in the colony. Bigge arrived in NSW in late 1819 and began his task. His commission instructed him 'to consider whether the alterations introduced into the constitution of the courts in 1814 have rendered them adequate to the wants of the inhabitants and to the due administration of criminal and civil justice; and, if they still appear to be defective to suggest the improvements of which you conceive they are susceptible'.
Meanwhile, in 1819, a petition bearing the signatures of 1261 free settlers of NSW was sent to the Prince Regent asking for the introduction of trial by jury. But when the House of Commons published Bigge's report on 21 February 1823, it contained few substantial suggestions for reform and, in particular, it brushed aside the requests for trial by jury. However, enough had been disclosed by the inquiry to convince the Government to make a radical overhaul of the entire system of colonial administration in NSW.
Legislation to achieve this was prepared in London by James Stephen, counsel to the Colonial Office, and Francis Forbes, Chief Justice of Newfoundland and Chief Justice designate of NSW.
Consequently Letters Patent were sealed on 13 October 1823, and proclaimed in Sydney on 17 May 1824. They are known as the third Charter of Justice. This Charter established the Supreme Court of New South Wales with both civil and criminal jurisdictions, it granted the Chief Justice rank and precedence over all subjects except the Governor or the Acting Governor and it provided for the appointment of court officers and for admission to the court of legal practitioners.
The ceremony at which the proclamation was read took place in the Georgian School in Elizabeth Street opposite the partly completed Supreme Court building. At the ceremony the oath of office was administered to the Attorney-General, Mr Saxe Bannister, Mr Joshua John Moore was sworn in as Prothonotary of the court and Mr John Gurner as the Registrar.
A contemporary report noted 'His Honour the Chief Justice (Francis Forbes) then informed those gentlemen who had practised as solicitors in the former courts, that the courts would (two days later) receive applications ... for permission to practise in the Supreme Court.'
Forbes commented later that: 'The laws of England are essential if the laws of New South Wales, that the Government is essentially an English Government; and that the courts are essentially the courts at Westminster.' The Supreme Court's work extended to all criminal and civil cases. By 1840, the call for equity hearings had become so heavy that an Act of the Colonial Legislature, the Administration of Justice Act, was passed to establish a separate Equity jurisdiction and one of the judges was appointed Primary Judge in Equity.
The court also had jurisdiction in respect of bankruptcy, lunacy and probate, although its jurisdiction in probate was not clarified until much later. Limited jurisdiction in divorce cases was granted in 1873 and full Admiralty jurisdiction was added in 1911.
The court was re-organised, but its original identity was preserved by the Supreme Court Act 1970 (NSW). In nearly all respects, the Supreme Court has maintained continuity with the Court founded by the Third Charter of Justice in 1824.
18 Nov 2023
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