AGY-1067 | Prothonotary of the Supreme Court (1824-1825) / Prothonotary and Registrar of the Supreme Court (1843-1851) / Prothonotary of the Supreme Court (1851-1856) / Prothonotary and Curator of Intestate Estates (1856-1913)

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The Prothonotary was one of the administrative offices of the Supreme Court which the New South Wales Act, 1823 (4 George IV, act no 96) had authorised. No permanent appointment to the office of Prothonotary was made until Joshua John Moore (a former Clerk of the old Courts) became Acting Prothonotary in May 1824. (1) The office was abolished the following year when the incumbent retired from official life. (2)

The primary duties of the Prothonotary appear to have devolved to the Registrar of the Supreme Court, with a number of administrative tasks (including the recording of Decrees, Judgements, and Orders of the Court)  passing to the Chief Clerk. (3)

In December 1841 the then Chief Justice Sir James Dowling recommended to Governor Gipps that John Gurner because of his long service, indefatigable industry, ability and experience be appointed as Prothonotary. However, this request was not granted. (4)

In 1842 Lord Stanley created the composite position of Prothonotary and Registrar of the Supreme Court. This ‘new’ office’s responsibilities extended to -

a) performing the duties of the Registrar
b) receiving all accounts and returns of the Collector of Intestates’ Estates
c) attending all sittings of the Court, in banco, or on appeal
d) computing principal and interest on bills and tax costs
e) issuing all writs in the Criminal and Exchequer Jurisdictions

G. P. F. Gregory commenced his duties as Prothonotary and Registrar of the Supreme Court of New South Wales on 14 August 1843 (5) and held the office until his death in 1851. Gregory’s successor was Samuel Raymond LL. D., formerly Chairman of Quarter Sessions who became Prothonotary on 1 October 1851 with the Office of Registrar at Common Law being abolished. (6)

An Act to abolish the office of Registrar General and to make further provision for the Registration of Deeds and other Instruments, 1849 (Act 13 Vic. No. 45) transferred all registry functions to the Prothonotary of the Supreme Court. The Act came into force on 1 January 1850. After a break of six years, the office of Registrar General was revived in 1855 by An Act for registering Births, Deaths, and Marriages (Act 19 Vic. No.34). This Act made provision for the compulsory registration of births, deaths and marriages and for the division of the colony into registration districts. An Act for the transferring to the Registrar General the duties of the Chief Clerk of the Supreme Court as Registrar of Deeds and other Instruments (Act 20 Vic. No.27), was assented to on 11 March 1857. All Instruments, index books, documents, writings and duties of registration were transferred from the Prothonotary to the Registrar General.

From 1849 until 1923 the registration of newspapers detailing Court proceedings, affidavits or affirmations was administered by the Prothonotary of the Supreme Court. The Transfer of Records Act, 1923 (Act No. 14, 1923) placed this regulatory function with the Registrar General's Department. The Act also authorised the Prothonotary to destroy all bills of sale that had not been renewed since 1 January 1913. (7) The Registrar General was also granted the Prothonotary’s role under the Conveyancing Act, 1919 (Act No. 6, 1919 ) to verify statutory declarations (British, Dominion and foreign) relating to property. (8)

From 1859 to 1876 the Prothonotary was the custodian of records concerning the naturalization of aliens. While the records were kept in the Supreme Court, applications to the Governor for the issue of Naturalization Certificates were made through the Colonial Secretary's Office. (9)

From 1 March 1856 the Prothonotary became the Curator of Intestate Estates. (10) In official correspondence the Prothonotary and Curator of Intestate Estates signed either as the Prothonotary for Court business or as the Curator of Intestate Estates for inheritance questions. The Prothonotary and Curator of Intestate Estates powers flowed from existing legislation - An Act for the better preservation and management of Estates of deceased persons in certain cases, 1847 ( 11 Vic. Act No. 24) . This Act allowed the Curator to request Clerks of Petty Sessions to act as his agents or when there was no Clerk of Petty Sessions to appoint an agent. (11) The Curator was also empowered to receive commissions on all sums collected 5% when he did the work and 2 % when an agent was used with the remaining 3% being the agent’s commission. The remainder of the money was paid to the Colonial Treasurer. (12)

In attempt to check the power of the Curator to appoint agents An Act to amend certain particulars in the Act passed for the better preservation of the Estates of deceased persons, 1851 (15 Vic. Act No. 8) ordered that a Supreme Court Judge had to depute an Official Assignee to collect moneys on behalf of the Curator. (13)

A disagreement between Parliament and the Supreme Court over control of the Prothonotary and Curator of Intestate Estates was to continue for the next 24 years. The areas of dispute involved the handling of Intestate Estates, the appointment of suitable agents, and the amount of moneys collected. This conflict of authority culminated in 1880 with the Supreme Judges directing the then Prothonotary T. M. Slattery not to report to the Government unless permitted by them. (14) The Government in response dismissed Slattery for disobedience of its orders on 31 March 1880. (15) The question of who controlled the ministerial officers of the Court remained a matter of contention for many years. (16)

Frederick Chapman was appointed as Prothonotary and Curator of Intestate Estates on 9 April 1880. Chapman petitioned the Government for increase in salary citing the extra (unpaid) duties the position carried as Registrar of the Divorce Court and Registrar of the Ecclesiastical Court. In the submission the New South Wales system of one Prothonotary was equated with a Master of the New South Wales Court and contrasted with the judicial arrangements in Victoria where there were two Chief Clerks and a Prothonotary. (17)

The Married Women’s Property Acts of 1893 and 1901 stated that money (bank accounts, annuities, public funds, and stocks) in the name of a married woman should be deemed to be her separate property unless the contrary was shown. The Prothonotary under the Prothonotary (Chamber Work) Rules played the role of legal arbiter in disputes over a wife’s property. (18)

The Prothonotary is the principal administrative officer of the Supreme Court who administers the registries of the Court’s Divisions. The Prothonotary’s duties include:
a) receiving process filed in the registry of each of jurisdiction for the institution and continuance of actions
b) keeping records of all actions
c) fixing dates for hearing
d) keeping records of verdicts and to enforce such verdicts
e) taxing costs of actions at common law when parties cannot reach agreement
f) maintenance of the Legal Practitioners Register containing particulars of all solicitors of the Supreme Court of New South Wales
g) requesting any information in relation to a legal practitioner or legal practitioner’s practice which is recorded in the Legal Practitioners Register (19)
h) receiving and recording all complaints concerning solicitors, complaint investigation and if necessary reports the solicitor’s conduct to the Court and seeks an order for the solicitor to show cause why he or she should not be dealt with by the Court
I) preparation of the Law Almanac containing information concerning sittings of the High Court of Australia, the Supreme Court, District Court, Courts of Quarter Sessions, the Worker’s Compensation Commission and a list of barristers and solicitors
j) commencing proceedings to enforce a judgment (after a sealed copy of the judgement has been received) (20)
k) fix dates for hearings in relation to requests to access dormant charity funds (21)

The Prothonotary has also acted as the Registrar of the Land and Valuation Court, the Court of Criminal Appeal, and the Court of Appeal. From 1969 the Prothonotary was also the Registrar in Admiralty and acted from 1976 until 1977 as the Registrar of the Family Law Division.

FOOTNOTES
(1) Bennett J. M., A History of the Supreme Court of New South Wales, The Law Book Company Ltd, Sydney 1974, p. 89.
(2) Shaw A. G. L. & Clark C. M. H. (Eds), The Australian Dictionary of Biography, Volume 2: 1788-1850, Melbourne University Press, Carlton Victoria, 1967 p. 254.
(3) Historical Records of Australia, Series I, Volume XXI, Sir George Gipps to Lord John Russell (Despatch No. 7) 16 January 1842 p. 626.
(4) Shaw A. G. L. & Clark C. M. H. (Eds), The Australian Dictionary of Biography, Volume 1: 1788-1850, Melbourne University Press, Carlton Victoria, 1967 p. 494.
(5) The Appointment of a Prothonotary dated 24 January 1843 is reproduced in the Votes and Proceedings of the Legislative Council of New South Wales, Vol. 1, 1843, p. 270. The commencement of duties date is listed in The Return of the Colony of New South Wales for 1843, ‘Judicial Establishment’ pp. 238-239 as 14 August 1843.
(6) The Return of the Colony of New South Wales for 1852, ‘Judicial Establishment’ pp. 316-317.
(7) Transfer of Records Act, Act No. 14, 1923, Section 3.1.
(8) See Conveyancing Act, Act No. 6, 1919 Section 168 and Transfer of Records Act, Act No. 14, 1923, Section 6.
(9) See Lists of Aliens to whom Certificates of Naturalization have been issued, 1859-76 (4/1202-03; microfilm copy AO Reel 130).
(10) Rules of the Court ‘Officers of Court and Practice Generally’ p. 6 in Votes and Proceedings of the Legislative Assembly, 1856-57, Volume 1, p. 896.
(11) An Act for the better preservation and management of Estates of deceased persons in certain cases 11 Vic. Act No. 24, 1847 Section 15.
(12) An Act for the better preservation and management of Estates of deceased persons in certain cases 11 Vic. Act No. 24, 1847 Section 16.
(13) An Act to amend certain particulars in the Act passed for the better preservation of the Estates of deceased persons 15 Vic. Act No. 8, 1851Section 5.
(14) See the ‘Administration of Justice Mr. T. M. Slattery Late Prothonotary Correspondence’ in the Votes and Proceedings of the Legislative Assembly,1879-80, Volume 3, pp. 69-90.
(15) Blue Book 1880 p. 64.
(16) Bennett J. M., 1974, op. cit. p. 93.
(17) ‘Appointment of M F. Chapman as Prothonotary of the Supreme Court’ in the Votes and Proceedings of the Legislative Assembly, 1885-86, Volume 2, pp. 469-474.
(18) Cross, F. ‘Cross Patch & Co: On explaining loan documents’, Law Society Journal (NSW, Australia), No. 36 Vol. 4, 1998 Page 46.
(19) Legal Profession Regulation 1994 Section 13.
(20) Service and Execution of Process Act 1992 Section 105.
(21) Dormant Funds Regulation 1994 Section 6.