Full description Background

The Judicial Function

The formal structure of Government including the administration of justice is set down in the Victorian Constitution Act 1975 (No.8750), which re-enacted with additions and amendments the provisions of the 1855 Victorian Constitution Act (passed as a Schedule to the Imperial Act, the Victorian Constitution Statute, 18 and 19 Victoria c.55, proclaimed on 23 November 1855), and the consolidated Constitution Act Amendment Act 1958 (No.6224). The Constitution Act contains provision for the establishment of the Supreme Court and its Officers (1975 Act sections 75-87).

Judicial Power - the power to make judgments about the constitutional validity of laws, their application and interpretation in particular cases, and the application of laws in settling disputes between persons, society and individuals, government agencies, and public officials and persons - is vested in the Courts. The Constitution ensures the independence of the judiciary by providing for the permanent appointment of judges by the Governor with the advice of the Executive Council, and for their salaries and pension entitlements. The only lawful means of removing a judge is by the Governor acting upon an address of both Houses of Parliament (1975 Act, sections 75(5) and 77; 1855 Act, section XXXVIII).

For more detail about the place and role of the judiciary in the Government of Victoria including an explanation of the Courts' role in the creation of unenacted law and the interpretation of enacted law see VRG 17 Executive.

Scope of the Group and Agency Identification

This function relates to the records of all Victorian Courts including those of the Supreme Court, the County Court and Magistrates' Courts, previously known as the Courts of Petty Sessions. It also includes the records of judicial officials such as the Master in Equity and the Registrar of Probate who have exercised both judicial and administrative power.

In most cases the various courts or jurisdictions in each locality have not been identified as separate agencies. All courts in the following categories have been grouped together:

County Courts prior to 1968
Petty Sessions and Magistrates' Courts
Children's Courts

In these cases the courts in one locality have been identified as a single agency, e.g. the Dunolly Children's Court and Court of Petty Sessions are included in the agency Dunolly Courts. In practice it is often the case that the records themselves are also grouped together.

The Supreme Court (VA 2549) and its Officers, the County Court (VA 686), the Coroners' Courts 1840-1986 (from 1986 the State Coroner's Office) (VA 2263 and VA 2807), Police Magistrates Districts have been included.

Early Administration of Justice in the Port Phillip District

The Courts function dates from the sitting of the first court in the Port Phillip District in 1836. On 9 September 1836 the Governor of New South Wales proclaimed the official settlement of the Port Phillip District. Captain William Lonsdale was appointed Police Magistrate of the District on 14September (see VRG 7 and VA 472). As well as taking responsibility for the general superintendence of the District, he also undertook the duties of a New South Wales District Police Magistrate, including administration of justice and supervision of the local constabulary. In situations where normal administration of the laws required two Justices, one of the officers accompanying Lonsdale was appointed a "Commissioner of the Peace". Following the appointment of a Superintendent of the District in 1839, the duties of the Police Magistrate were restricted to responsibility for the local constabulary and local magisterial functions in Melbourne and the position was retitled Police Magistrate, Melbourne. In the meantime Police Magistrates were being appointed in other localities, Captain Foster Fyans taking up duty in Geelong in late 1837. The Police Magistrates continued to be responsible for the constabulary within their district until 1853 when responsibility for all police matters was vested in the Chief Commissioner of Police (VA 724 - see also VRG 10 Police).

The first official Courts of Petty Sessions (as distinct from Police District/Magistrates' Courts) were gazetted in the New South Wales Government Gazette of 18 July 1838. On 14 August 1838, Courts of Quarter Sessions were proclaimed to hear appeals from Courts of Petty Sessions and more serious criminal cases. The first Court of Requests established to hear civil cases was appointed in 1839 and began sittings in 1840.

Supreme Court

Prior to separation and the establishment of the Supreme Court in Victoria in 1852 the highest court for the District was the Supreme Court of New South Wales for the District of Port Phillip (VA 914).

Before 1841 this meant that criminal cases and civil litigation of any importance had to be heard in New South Wales. In 1841, to ease this situation a Resident Judge of the New South Wales Supreme Court for the Port Phillip District was appointed. In 1852 following separation from New South Wales the Legislative Council passed an Act (15 Vic., No.10) to establish the Supreme Court of Victoria.

The Supreme Court (VA 2549) is the highest court of the State, having jurisdiction over all matters, civil and criminal, which have not been excluded by statute. The 1975 Constitution Act provides for the Supreme Court to consist of not more than thirty judges of whom one is the Chief Justice. All judges are appointed by the Governor on the advice of the Executive Council from the ranks of practising barristers of not less than eight years standing, and retire at the age of seventy-two years. At present, the Supreme Court is comprised of a Chief Justice and twenty-one Puisne Judges.

The Full Court (usually three, but sometimes five, judges) hears and determines appeals from single judges of the Supreme Court and from the County Court, in both civil matters and criminal cases. There is no general right of appeal in civil matters from a decision of a Magistrates' Court however a dissatisfied party may apply to have a Supreme Court judge review a case in law. The main activities of the Supreme Court are centred at Melbourne, and judges go "on circuit" to Ballarat, Bendigo, Geelong, Hamilton, Horsham, Sale, Shepparton, Wangaratta and Warrnambool.

Functions of the Court

Currently the Supreme Court deals with cases such as murder, manslaughter and other criminal matters, civil actions involving large claims and appeals against decisions of the lower courts. Historically the Supreme Court dealt with matters such as equity, lunacy, divorce and insolvency. Jurisdiction in some of these matters passed to the Commonwealth at or since federation in 1901, eg. insolvency and bankruptcy in 1928 and divorce in 1976, though the State courts continued to be vested with federal jurisdiction in some cases. Federal laws regarding divorce and marriage had been passed in 1959 and 1961 respectively and these laws superseded State law. Under the provisions of the Family Law Act 1975, operational from 5 January 1976, a Family Court of Australia was established to administer Family Law including considerations for the dissolution of marriage. Appeals against the decisions of the Supreme Court may be heard in the High Court of Australia. Prior to the passing of the Australia Acts in 1986, appeals could also be heard by the Privy Council, although in recent decades such appeals became increasingly rare.

Officers of the Supreme Court

Various officers of the Supreme Court exercise or have exercised judicial and/or administrative responsibility.

The Master in Equity (also known as the Master in Equity and Lunacy 1867-1923) (VA 2624) was responsible for the administration of matters dealt with under the provisions of the Law of Equity as opposed to those of Common Law and enacted law. The Master in Equity assisted the Supreme Court; provided legal opinions on matters referred by the Court; undertook inquiries and investigations as ordered by the Court; managed financial matters relating to the court, including payments made by trustees or executors and arranged the payment of costs in equity proceedings, conveyancing and other business of the Court.

The Master in Equity was also responsible for the granting of probate in cases where it was considered that probate would be granted by the Supreme Court and for the administration of the estates of deceased persons where the administration of the estate was not contested.

Under the provisions of the Master of the Supreme Court Act 1948 (No.5329) the Master of the Supreme Court (VA 2613) became responsible for those functions previously administered by the Master in Equity (VA 2624) and the Chief Clerk of the Supreme Court, including the granting of probate and administration of the estates of deceased persons where the administration was not contested; the investigation of matters as directed by a judge of the Supreme Court and the supervision of "committees" appointed by the Court to administer the estates of "lunatics". Since 1986, the Master of the Supreme Court has been known as the Senior Master and is responsible for the supervision of other officers of the Supreme Court.

In 1960, the Master of the Supreme Court ceased to have responsibility for probate and administration. The Registrar of Probate (VA 2620) who had previously received direction from the Master of the Supreme Court, assumed statutory responsibility for the granting of probate in those cases where it is considered that probate would be granted by the Supreme Court and for the administration of the estates of deceased persons where such grants are uncontested. Contested estates are determined by the Court.

The Prothonotary of the Supreme Court, now also known as the Principal Registrar, oversees the administrative aspects of actions and appeals coming within the jurisdiction of the Court. Among other things, the Prothonotary is responsible for the issuing of writs and other processes that initiate civil proceedings in the Supreme Court. The Prothonotary is also responsible for the filing of documents and for the custody of Supreme Court records.

The Sheriff administers the Juries Act and is responsible for the enforcement and execution of Supreme Court Writs and Orders and the control and direction of civil warrants issued from Magistrates' Courts and executed by civilian bailiffs. The Sheriff is also responsible for the security of the Supreme Court, its judges and all persons attending the Court.

Under the provisions of An Act to make provision for the better control and disposal of Offenders 16 Vic., No.32, (1853) certain public gaols, prisons, houses of correction etc. were to be under the charge, care and direction of the Sheriff of the Colony of Victoria. The Sheriff retained responsibility for the supervision of certain prisons until 1871 when, following a Royal Commission on Penal and Prison Discipline, the Statute of Gaols 1864 (No.219) was amended and the Inspector of Penal Establishments became responsible for the supervision of all prisons. (See the Statute of Gaols Amendment Act 1871 (No.397).)

County Court

The County Court of Victoria is an inferior general court exercising civil, criminal and special jurisdictions. It also sits as an Appeal Court, without a jury, on appeals from Magistrates' Courts.

From 1852 to 1968 there were local County Courts which assumed the functions of the Courts of... truncated

Data time period: 1836 to 2013

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145.6,-36.6

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