The Letters Patent pursuant to the New South Wales Act, , 1823 (Act 4 Geo. IV, c.96 ) were known as the Third Charter of Justice. (1). This Charter was formally promulgated on 17 May 1824. (2) The Statute, in effect, made New South Wales a colony with a true civil government. The Crown was authorised to grant Charters of Justice for the establishment of a Supreme Court in each Colony, to be "holden by one Judge or Chief Justice", but with a proviso that the number of Judges might be increased to three. Provision was also made for the appointment of a Registrar, Prothonotary, Master and Keeper of the Records, and the Sheriff.
The Courts of Criminal and Civil Jurisdiction together with the office of Judge Advocate were abolished and a Supreme Court was established in their place as a Court of Record. Criminal trials were to be by a jury of seven naval or military of officers. Civil actions were ordinarily to be tried by the Chief Justice and two assessors; but the parties could agree to have a jury of twelve.
The Supreme Court was given jurisdiction in all pleas, civil, criminal and mixed, and the jurisdiction of the Courts of Kings Bench, Common Pleas and Exchequer, and Courts of Oyer and Terminer [to hear and determine] and General Gaol Delivery.
The Supreme Court now possessed the means to exercise a general supervisory function over inferior tribunals. This could be achieved through the issue of writs of
a) prohibition (preventing an inferior tribunal from exceeding its authority)
b) mandamus (requiring a public official, including an inferior tribunal, to carry out its public duties)
c) certiorari (bringing up the record of an inferior tribunal into the court of the Kings Bench so that a conviction based upon any defect appearing on the face of such a record could be quashed) (3)
Initially the Supreme Court's supervisory control over inferior courts involved the immediate redress of magisterial decisions. In 1828 requests from five prisoners aboard the prison hulk "Phoenix" for release on the grounds they were being held illegally were decided upon without any formal court process. Within six weeks the Judges issued an opinion on the legality of the sentences with three of the five prisoners being released. This opinion and order of the Supreme Court resulted in a Circular being sent to the magistrates of the Colony on 30 September 1828 setting forth a conspectus of the summary jurisdiction conferred upon magistrates over convicts and men on tickets of leave. The process of judicial intervention was repeated on 7 January 1829 following written petitions from prisoners aboard the "Phoenix" to the Supreme Court Judges. (4)
On 25 July 1828 the Australian Courts Act, (Act 9 Geo. IV c. 83) became law. This legislation enlarged and better defined the jurisdiction of the Supreme Courts of New South Wales and Van Diemen's Land. It contained a provision enabling the Judges of the Supreme Court to make rules for a variety of matters including "the admission of attorneys, solicitors and barristers". Such rules were to have the force of law but could be disallowed by the Sovereign on the advice of the Governor or Acting Governor.
The Australian Courts Act, 1828 repealed the New South Wales , 1823 ,( Act No 4 Geo. IV c. 96) which was a temporary Act, and added to the Supreme Court the common law jurisdiction of the Court of Chancery. This Act in force for seven years was made perpetual by the Acts 5 & 6 Vic. c.76. The local legislature was empowered to amend the arrangements for the administration of justice by Act 2 & 3 Vic. c.70 (1838, 1839). The Colonial Act, Act 4 Vic. no.22 (1840) allowed for the appointment of a single judge to exercise the equitable jurisdiction of the Supreme Court at first instance.
Originally in 1823 it was provided that if both parties to a civil action were so desirous, the Act might allow the appointment of a jury. In criminal cases all trials were to take place before judge and jury of seven military or naval officers. In 1833 the Colonial Act 4 (Will. IV no.12) allowed accused persons the choice of a jury of twelve civilians or seven military officers. In 1839 the Act 3 Vic. no.11 abolished military juries entirely. In civil common law action the Act 8 Vic. no.4 (1844) substituted trial before juries of four instead of trial before assessors except in special cases.
The rules of the Supreme Court had been printed since 1834; but the first comprehensive treatise was 'The Constitution Rules and Practice of the Supreme Court of New South Wales', written by Justice Alfred Stephen and published in 1843-5. There were no regular law reports in New South Wales until 1862, when the Supreme Court Reports began. (5)
In 1840 An Act to provide for the more effectual Administration of Justice in New South Wales and its Dependencies (4 Vic Act No.22 separated the Equity Jurisdiction from the Supreme Court with the revival of the Office of Master of Equity. Insolvency (later called Bankruptcy) was created as a separate department in 1864 and Divorce and Matrimonial Causes followed in 1873. The Probate Jurisdiction was divided in 1897.
The Industrial Disputes Act, (Act 3 1908) devolved the resolution of disputes and making of awards to industry specific boards made up of elected employer and employee representatives. The Act included, however, a right of appeal to an Industrial Court, to which a Supreme or District Court Judge was to be appointed.
The Supreme Court and Circuit Courts (Amendment) Act, (Act No. 12) 1965 created the Court of Appeal as a Division of the Court. The Court of Appeal commenced operations on 1 January 1966.
On 1 July 1972, by the proclamation of the Supreme Court Act, (Act No. 52) 1970 and the Law Reform (Law and Equity) Act (Act No. 28) 1972, the Court's six civil jurisdictions were created, these were -
a) Common law
c) Matrimonial causes
Under these arrangements common law and equity were administered concurrently and if any conflict or variance arose between the rules of common law and equity with reference to the same matter, the rules of equity will prevail. The Court of Appeal was retained.
The Supreme Court Act, (Act No. 52) 1970 abolished certain judicial matters -
The distinction between the sittings of Judge in Court and in Chambers was abolished.
The Supreme Court Act, (Act No. 52) 1970 received assent on 14 October 1970. A period of adjustment followed as all branches of the legal profession acquainted themselves fully with the Act's implications. The Act came into force on 1 July 1972. (10)
In July 1973, an Administrative Law Division was added. In April 1973, the Matrimonial Causes Division was renamed the Family Law Division. In 1979 and 1985 respectively, Criminal and Commercial Divisions were added.
Criminal matters are dealt with by the Central Criminal Court or the Supreme Court on Circuit (presided over by a single judge), the corresponding appellate jurisdiction is exercised by the Court of Criminal Appeal (constituted by three or more Supreme Court judges) established by the Criminal Appeal Act, (Act No. 16) 1912.
On 7 July 1998 the Chief Justice announced that the structure of the Supreme Court is to be progressively reviewed to maximise utilisation of judicial resources. As part of this process it is initially proposed to merge the Equity and Commercial Divisions into a single entity. Legislative amendments to the Supreme Court Act, amendments to the Rules and administrative changes are anticipated in the near future. (12)
(1) Windeyer W. J. V., Lectures on Legal History, Second Edition, The Law Book Company, Sydney, 1957, (reprinted 1974), p. 310.
(2) Promulgation of the Third Charter Justice 17 May 1824 Historical Records of Australia, Series I, Volume XI, p. 302.
(3) McMartin, Arthur, Public Servants and Patronage: The Foundation and Rise of the New South
Wales Public Service 1786-1859, Sydney University Press, Sydney, 1983, p. 85
(4) McLaughlin, John Kennedy, 'The Magistracy and the Supreme Court of New South Wales, 1824-
1850: A Sesqui-Centenary Study, Journal of the Royal Australian Historical Society, September 1976, Vol. 62, Part 2, pp. 99-101.
(5) Bennett J. M. A History of the New South Wales Bar, The Law Book Company, Sydney, 1969, p.59.
(6) Golder, Hilary, High and Responsible Office. A History of the New South Wales Magistracy, Sydney University Press, Sydney, 1991, p. 57
(7) Sections 10 & 98
(8) Section 11
(9) Section 12
(10) Outline 1972, pp. 9-10.
(11) Assented to 23 December 1986, New South Wales Government Gazette, Vol. 1, 30 January 1987, p. 483.
(12) URL: http://www.lawsocnsw.asn.au/resources/caveat 192/2.html
(13) New South Wales Government Gazette, Vol. 3, 7 August 1912, pp. 5028-36.
(14) Imperial Statute, 2 Geo. II, c.23 of 1729
(15) HRA 6 June 1834 Series I Volume XVII page 453 - Allowance of rule for division of legal profession.
Report of the Law Reform Commission on Supreme Court Procedure, Joint Volumes of the Parliamentary Papers of the Legislative Council and Legislative Assembly [of New South Wales] Sydney, Government Printer, 1969-70-71, Vol. 5, pp. 639- 1154.