AGY-1056 | Admiralty Court (1823 - 1970) / Admiralty Division (1970- ) [Supreme Court of New South Wales]

NSW State Archives Collection
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The New South Wales Act, 1823 [4 George IV, act no 96] and The Australian Courts Act, 1828 [9 George IV, Act no 83] vested in the Supreme Court the authority to try criminal cases committed at sea. However the Letters Patent of May 1787 were not withdrawn, therefore the Admiralty and Vice-Admiralty Courts co-existed..

Chief Justice Francis Forbes initially received no commission as Judge in Admiralty until the case of the "Almorah" arose in 1825. Attorney General Saxe Bannister believed that there was no local admiralty court and advised that the case should be tried in Calcutta. Subsequent research has shown that Governor Brisbane had Vice-Admiralty powers given in his letters patent on 21 March, 1821 and would have been competent to conduct the court or delegate the hearings to the Chief Justice. A commission in vice-admiralty was belatedly bestowed upon the Chief Justice of 31 October 1825, and his successor James Dowling received the admiralty commission upon taking office in the colony. The commission gave these judges some criminal jurisdiction and full civil jurisdiction over occurrences at sea.

Under Chief Justice Alfred Stephen, the vice-admiralty commission was transferred to his Deputy and the Judge in Equity, Justice Samuel Milford. Justice Milford presided over an increasing flow of litigation in the Admiralty Jurisdiction. Procedures were simplified in the decade of the 1840’s. When Justice Milford became the Resident Judge at Moreton Bay, Chief Justice Stephen endeavoured to resign his Commission in Vice-Admiralty and have it transferred to the Judge in Equity. However the Colonial Office without ruling advised that the interests of justice were best served if Admiralty is vested in the Chief Justice. Justice Milford returned to Sydney the following year and continued to hear admiralty cases until his death in 1865. The Admiralty Jurisdiction returned to the Chief Justice.

An Act to Prevent Frivolous and Vexatious Arrests of Ships and Vessels or the Masters or Commanders thereof by process issuing out of the Vice-Admiralty Court of New South Wales, 1848 [11 Vic, Act No 47] prevented matters outside the jurisdiction of the Court coming before it and delaying the litigious process for appropriate causes. Those arresting the ships were to pay all costs incurred by the `frivolous’ action.

In the latter part of the nineteenth century Imperial Vice-Admiralty Courts Acts passed in 1863 and 1877 regulated the Admiralty Courts. The Colonial Court of Admiralty Act, 1890 (Imperial) replaced the Vice Admiralty Courts in the colonies with Admiralty Courts in the jurisdiction of the English High Court of Justice. Under an Order of Council on 4 May 1911, the Supreme Court of NSW became a Colonial Court of Admiralty.

Interpretation of section 30a of the Judiciary Act, (Commonwealth) 1914 was that the High Court of Australia held the Australian jurisdiction in Admiralty although there was much counter-argument. The State’s Admiralty courts continued to hear cases and for decades there was no legislation to clarify this issue. In 1939 the controversial section of the Act was repealed and the Chief Justice announced that all courts of unlimited civil jurisdiction were Courts of Admiralty.

The name of the Admiralty Jurisdiction was changed to the Admiralty Division by the Supreme Court Act, 1970 (Act No. 52, 1970) (1)

(1) Supreme Court Act, 1970, S. 8

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