The Colonial Courts of New South Wales
The development of the system of courts of New South Wales was key to the colony’s transition from a penal outpost to a civil society with a closer resemblance to other colonies of the British empire. This transition was key to what is now understood as the ‘reception of laws’ in Australia, a topic which is still critical to many legal issues today.
The history of courts from 1788 to 1823 also demonstrates the central role of the prerogative in shaping the early government of New South Wales. The establishment of courts, under English law, was a residual royal prerogative (i.e., a discretionary power legally left in the hands of the Crown) and was exercised by the King (George III and George IV) acting with the advice of his Privy Council in successive Commissions to his colonial Governors.
The power of these early courts to deliver judgment according to justice, right and the principles of English law defines one aspect the early application of British sovereignty in Australia, a topic explored recently by the author in his thesis on water and law in colonial Victoria.
Figure 1: Summary of Court Structures in New South Wales prior to 1823
In 1788, when Captain Arthur Phillip (1738-1814) annexed the territory of New South Wales to the British Crown, reading his Royal Commissions in Botany Bay with all due solemnity ‘amongst the eucalypts and cabbage-tree palms’, he established two separate courts to administer law within the Colony: one with Civil jurisdiction, and one with Criminal jurisdiction.
Court of Criminal Jurisdiction
Imperial Statute in 1787 (27 Geo. 3, c. 2, at s.2) permitted King George III, by Commission under Great Seal, to establish a Court of Judicature ‘for the Trial and Punishment of all such Outrages and Misbehaviours as … would be deemed and taken … to be Treason or Misprision thereof, Felony or Misdemeanor’. This was done by Letters Patent dated 2 April 1787, known as the First Charter of Justice.
The Court consisted of a Judge Advocate, who, though not a serving officer, was required to obey the Governors according to the rules and discipline of war, and ‘six officers of his Majesty’s forces by sea or land’ (Kercher & Salter, 2009, xiv).
The First Charter of Justice required that punishment of the Court was to be, ‘as nearly as may be’, in accordance with the laws of England. ‘Death sentences required the concurrence of the Governor before execution took place. The Governor could suspend capital sentences for the consideration of the King’ (Ibid).
This Court of Criminal Jurisdiction remained in existence until it was replaced by the Supreme Court of New South Wales in 1824.
Court of Civil Jurisdiction
Although not mentioned in the 1878 Statute, the Court of Civil Jurisdiction was established under the First Charter of Justice.
Under the First Charter, the Court was empowered to exercise civil jurisdiction, in a summary way, ‘over all commercial and personal pleas, including those over interest in land’, and ‘to grant probate and issue letters of administration for deceased estates’ (Ibid).
The court did occasionally exercise equitable jurisdiction ‘whether or not it was authorised to do so’ (Ibid).
Civil process was to commence by summons, or if the value of the demand was £10 or more, by pre-judgment arrest as was the practice in England. The Court was to deliver judgment ‘according to justice or right’. Judgments were to be enforced by levy upon the goods and chattels of the judgment debtor (fieri facias) and ‘for want of sufficient distress’ by imprisonment for debt (Ibid).
The Second Charter of Justice, delivered by Letters Patent dated 4 February 1814, created a new Civil Court called the ‘Supreme Court’, replacing the former Court of Civil Jurisdiction.
The Supreme Court was a court of record and was explicitly conferred an equitable jurisdiction under the Second Charter. In common law matters, it was no longer empowered to operate in a summary way.
It was headed by a Judge, who sat with two lay magistrates. Process was commenced by summons, followed by arrest if the defendant did not appear. Enforcement of judgment debts was to be the same as in the previous court (fieri facias or imprisonment). Judgements were to be given ‘according to law and equity’ (Ibid, xv).
The Court had no jurisdiction in claims up to £50, which were instead dealt with by the lower level civil courts: in New South Wales, this was the Governor’s Court, and in Van Diemen’s Land this was the Lieutenant-Governor’s Court.
In 1823, Imperial Statute (4 Geo. 4, c. 96) and the Third Charter of Justice abolished the Supreme Court of Civil Jurisdiction and the Court of Criminal Jurisdiction. In their place, they established the Supreme Court of New South Wales and a Supreme Court of Van Diemen’s Land. Also abolished were the Governor’s Court and Lieutenant-Governor’s Court, replaced by Courts of Request.
The Supreme Court of 1823 was a court of record, and had ‘all the powers of the superior courts of London, civil and criminal, common law and equitable’ (Ibid, xv). It was headed by a Chief Justice, with provision for up to two more Judges and had a full staff consisting of Registrar, Prothonotary, Master, Keeper of the Records and Sheriff (Ibid).
In criminal matters, its appearance was still military. Trials were held before a judge and jury of seven naval or military officers, although these officers were now restricted as jurors to decisions on matters of fact (Ibid).
In civil matters, actions were usually tried by the Chief Justice or Judge and two magistrates (assessors). Alternatively, both parties could agree to trial by a jury of twelve lay people.
The new Supreme Court also exercised a supervisory function over inferior tribunals through writs of prohibition, mandamus, and certiorari. It also issued habeas corpus, which became important for convicts who challenged their sentences (Ibid, xvi).
Bruce Kercher and Brent Salter (eds.), The Kercher reports: decisions of the New South Wales superior courts, 1788 to 1827 (2009, Francis Forbes Society for Australian Legal History)
Copyright © Kellehers Australia 2017
This fact sheet is intended only to provide a summary and general overview on matters of interest. It does not constitute legal advice. You should always seek legal and other professional advice which takes account of your individual circumstances.
8 September 2017
 Thomas Keneally, Australians: Origins to Eureka (Allen and Unwin, 2009) at p.90. See also H.R.A. (1914), Series 1, Vol. 1, p.9; H.R.A. (1922), Series 4, p.xiv.