AGY-1042 | Court of Civil Jurisdiction

Full description

The Court of Civil Jurisdiction was composed of the Judge-Advocate and two "fit and proper" residents of the Colony, appointed by the Governor (or, in his absence, by the Lieutenant Governor). The Court held a general civil jurisdiction to be exercised in a summary way over all pleas concerning lands, Houses, tenements and hereditaments, and all matters of interest. The Court also heard pleas of debt, account or other contracts, trespasses, and all related interests plus any personal pleas. The Court was also empowered to grant probate on wills and issue letters of administration for the personal estates of intestates dying within the settlement. This meant that the Court was granted jurisdiction over every form of civil action, and that no distinction was made between law and equity. An appeal lay to the Governor, and in cases (where the amount disputed exceeded £ 300) there was a further appeal to the Privy Council. (3) Initially much of the business of the Court concerned promissory notes and the recovery of small debts. (4) The increasing free population led to growth in the commercial dealings of the Colony with other parts of the world (particularly India). Many of the cases arising from these dealings were complex and involved large masses of property. By 1811, Judge-Advocate Bent was complaining that the great mass and variety of business coming before the Court had thrown an intolerable burden on him as well as causing great delay and grievance to the suitors of the Court. Bent also pointed out that because of the Colony’s lack of advocates and solicitors, suitors had been compelled to appear without legal representation. As a consequence of the passions and enmities thus brought into Court, justice had been obstructed, solemnity and decorum set at defiance and the authority of the Court discredited. (5) The Letters of Patent of 4 February 1814 (known as the Second Charter of Justice) abolished the Court of Civil Jurisdiction. In its place three new courts - the Governor’s Court, the Supreme Court, and the Lieutenant Governor’s Court - were established. FOOTNOTES
(1) Warrant for the Charter of Justice, Historical Records of Australia, 2 April 1787, Series IV, Vol. 1, pp. 6-8.
(2) Revocation of Letters Patent relating to the Court of Civil Jurisdiction, 4 February 1814, Series IV, Vol. 1, p. 83.
(3) Warrant for the Charter of Justice, 2 April 1787 op. cit., pp. 6-7.
(4) Roe, Michael, ‘Colonial Society in Embryo’, Historical Studies Australia and New Zealand, May 1956, p. 153.
(5) Deputy Judge Advocate Ellis Bent to the Earl of Liverpool, Historical Records of Australia, 19 October 1811, Series IV, Vol. 1, p. 58 & 59.
(6) Windeyer W. J. V., Lectures on Legal History, Second Edition, The Law Book Company, Sydney, 1957, (reprinted 1974), p. 303.