Court of Civil Jurisdiction
Encyclopedia
The Court of Civil Jurisdiction was a court
established in the late 18th century in the colony of New South Wales
which subsequently became a state of Australia
. The court had jurisdiction
to deal with all civil disputes in the then fledgling colony. It was in operation between 1788, the date of establishment of the new colony, and 1814.
with the intention of encouraging later settlement. Notwithstanding this, the colony’s principal purpose was to house prisoners from Great Britain
. Captain Arthur Phillip
was appointed as the colony’s first governor.
The British authorities foresaw the need for a judicial system to be established in the colony to deal with civil matters. This was to be the present court, styled as the “Court of Civil Jurisdiction”, and established by a charter, as well a Court of Vice-Admiralty pursuant to letters from the High Admiralty in Great Britain. In time, the colony would take to authorising justices of the peace to determine smaller debt claims that were taking up the time of these original civil courts established.
The institution of these first courts in the then fledgling colony were important first steps in establishment of the rule of law
in Australia.
in the form of letters patent
dated 2 April 1787. The Court of Civil Jurisdiction as established by the Charter was composed of the deputy judge-advocate, who was commonly known in the colony as the “judge-advocate”, and two other persons appointed to the court by the Governor of New South Wales. The judge-advocate was the presiding officer
. The court had jurisdiction to hear and determine summarily actions relating to land, houses, debt, contract, trespass, and most other common law
or equitable cases of any amount.
The court was abolished by the Second Charter of Justice, issued on 4 February 1814; it was replaced by the Supreme Court of Civil Judicature.
who held office from 1788 until 1796. He was temporarily replaced by Richard Bowyer Atkins until Richard Dore
arrived in 1798.
Dore was the first judge-advocate with legal qualifications. He died in 1800. Atkins was re-appointed and held office until late 1809, although he was temporarily deposed during the Rum Rebellion
of 1808.
At the end of 1809, Ellis Bent
, a barrister, arrived from England to take up the appointment as judge-advocate. He held the office until his death on 10 November 1815 and was the last judge-advocate to preside in the court before it was abolished when it was replaced by the Supreme Court of Civil Judicature, the Governors Court
and Lieutenant Governor's Court
.
If the amount in dispute exceeded £10, the provost-marshall was directed to bring the defendant personally into Court. The defendant could instead provide bail for the his or her appearance. In the latter case, the defendant was required to find security for the amount of the judgment and deliver it to the provost-marshall.
After all the evidence was given, the court would consider its judgment. The court’s judgment was given "according to justice and right" and sometimes not according to the existing common law or the law on equity. For example, the first case before the court Cable v Sinclair involved two ex-convicts suing a master of a ship for loss of luggage. Under English law at the time, a criminal would be unable to sue in a court of law. However, the court in this case overlooked that and gave judgment in favour of the convicts.
. An appeal in that case had to be lodged within fourteen days. Only one recorded appeal from this court was heard by the Privy Council.
in Australia was Cable v Sinclair, heard on 1 July 1788. David Collins
was presiding as judge-advocate with the Reverend Richard Johnson
and John White
appointed as the other members of the court.
The case concerned the loss of baggage on the voyage of the First Fleet
from England to Botany Bay
and Port Jackson
, now known as Sydney
. After hearing evidence, the court found in favour of the plaintiff and awarded damages against the ship’s master. Bruce Kercher notes that this decision goes against the then English principles of law relating to “convict attaint” which provides that a prisoner under sentence of death was unable to sue or hold property. Henry and Susannah Cable both were sentenced to death but had their sentence commuted to transportation, so under law, they were not entitled to sue.
Its other important cases are online.
in 1832 in Harris v. Riley [1832] NSWSupC 76 when the court under Chief Justice Francis Forbes
held that the Court of Civil Jurisdiction did not have an equitable jurisdiction and that the decision of the court in that particular case was void.
was also not being properly serviced by the court as the court sat only in Sydney. The court was loath to undertake the long journey to Hobart
to conduct sittings.
Recommendations had been made by Ellis Bent to the British authorities along those lines for reform of the courts in the colony. In 1814, the British sovereign established three new courts to replace the court. These were the Supreme Court of Civil Judicature, the Governors Court
and the Lieutenant Governor's Court
. The court ceased sitting in 1814 as a result of the revocation of its charter.
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
established in the late 18th century in the colony of New South Wales
New South Wales
New South Wales is a state of :Australia, located in the east of the country. It is bordered by Queensland, Victoria and South Australia to the north, south and west respectively. To the east, the state is bordered by the Tasman Sea, which forms part of the Pacific Ocean. New South Wales...
which subsequently became a state of Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
. The court had jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
to deal with all civil disputes in the then fledgling colony. It was in operation between 1788, the date of establishment of the new colony, and 1814.
Background
The British government established the colony of New South Wales primarily as a penal colonyPenal colony
A penal colony is a settlement used to exile prisoners and separate them from the general populace by placing them in a remote location, often an island or distant colonial territory...
with the intention of encouraging later settlement. Notwithstanding this, the colony’s principal purpose was to house prisoners from Great Britain
Great Britain
Great Britain or Britain is an island situated to the northwest of Continental Europe. It is the ninth largest island in the world, and the largest European island, as well as the largest of the British Isles...
. Captain Arthur Phillip
Arthur Phillip
Admiral Arthur Phillip RN was a British admiral and colonial administrator. Phillip was appointed Governor of New South Wales, the first European colony on the Australian continent, and was the founder of the settlement which is now the city of Sydney.-Early life and naval career:Arthur Phillip...
was appointed as the colony’s first governor.
The institution of these first courts in the then fledgling colony were important first steps in establishment of the rule of law
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
in Australia.
Constitution
The court was created by the First Charter of Justice, issued by King George IIIGeorge III of the United Kingdom
George III was King of Great Britain and King of Ireland from 25 October 1760 until the union of these two countries on 1 January 1801, after which he was King of the United Kingdom of Great Britain and Ireland until his death...
in the form of letters patent
Letters patent
Letters patent are a type of legal instrument in the form of a published written order issued by a monarch or president, generally granting an office, right, monopoly, title, or status to a person or corporation...
dated 2 April 1787. The Court of Civil Jurisdiction as established by the Charter was composed of the deputy judge-advocate, who was commonly known in the colony as the “judge-advocate”, and two other persons appointed to the court by the Governor of New South Wales. The judge-advocate was the presiding officer
Presiding Officer
In a general sense, presiding officer is synonymous with chairman.* The presiding officer of the United States House of Representatives is the Speaker of the United States House of Representatives...
. The court had jurisdiction to hear and determine summarily actions relating to land, houses, debt, contract, trespass, and most other common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
or equitable cases of any amount.
The court was abolished by the Second Charter of Justice, issued on 4 February 1814; it was replaced by the Supreme Court of Civil Judicature.
Judge-Advocates
The first deputy judge-advocate was David CollinsDavid Collins
-People:* David Collins , 18th-century cricketer associated with Hampshire* David Collins , played for Wellington and Cambridge University...
who held office from 1788 until 1796. He was temporarily replaced by Richard Bowyer Atkins until Richard Dore
Richard Dore
Richard Dore was an attorney, deputy judge advocate and secretary to the governor of colony of New South Wales, Australia in the late 18th century. He was the second person to hold office as deputy judge advocate, a position akin to the position of chief justice in the colony, and the first...
arrived in 1798.
Rum Rebellion
The Rum Rebellion of 1808 was the only successful armed takeover of government in Australia's history. The Governor of New South Wales, William Bligh, was deposed by the New South Wales Corps under the command of Major George Johnston, working closely with John Macarthur, on 26 January 1808, 20...
of 1808.
At the end of 1809, Ellis Bent
Ellis Bent
Ellis Bent was the deputy judge advocate between 1810 and 1815 of the Australian colony of New South Wales, which was eventually to become an Australian state. The deputy judge advocate was the senior legal officer of the colony and functioned in many ways as a Chief Justice...
, a barrister, arrived from England to take up the appointment as judge-advocate. He held the office until his death on 10 November 1815 and was the last judge-advocate to preside in the court before it was abolished when it was replaced by the Supreme Court of Civil Judicature, the Governors Court
Governors Court
The Governors Court was a court established in the early 19th century in the colony of New South Wales. The colony was subsequently to become a state of Australia in 1901. The court had jurisdiction to deal with civil disputes where the amount in dispute in the colony was not more than £50 sterling...
and Lieutenant Governor's Court
Lieutenant Governor's Court
The Lieutenant Governor’s Court was a court established in the early 19th century in the colony of Van Diemen's Land which subsequently became Tasmania, a state of Australia. The court had jurisdiction to deal with civil disputes where the amount in dispute was not more than £50 sterling in the...
.
Commencing cases
A case was commenced by a complaint made in writing by the plaintiff. After lodging it with the judge-advocate, the judge-advocate would issue a warrant to the Provost-Marshal stating the substance of the complaint. The provost-marshall would then summon the defendant to appear before the court.If the amount in dispute exceeded £10, the provost-marshall was directed to bring the defendant personally into Court. The defendant could instead provide bail for the his or her appearance. In the latter case, the defendant was required to find security for the amount of the judgment and deliver it to the provost-marshall.
Procedure in court
Proceedings would begin with the judge-advocate administering an oath to each of the other officers of the court appointed by the governor for that sitting. The officers after having been sworn would then swear in the judge-advocate. Witnesses on either side, but not the parties themselves were sworn and examined. This was common practice in English courts at the time. The evidence of the witnesses was taken down in writing and signed by them.After all the evidence was given, the court would consider its judgment. The court’s judgment was given "according to justice and right" and sometimes not according to the existing common law or the law on equity. For example, the first case before the court Cable v Sinclair involved two ex-convicts suing a master of a ship for loss of luggage. Under English law at the time, a criminal would be unable to sue in a court of law. However, the court in this case overlooked that and gave judgment in favour of the convicts.
After judgment
If a plaintiff was successful before the court, the plaintiff could obtain a warrant of execution against the defendant's goods and chattels (called fieri facias). This in effect allowed the provost-marshall to seize the defendant’s goods and sell them, subsequently paying the proceeds to the plaintiff. Alternatively, the defendant could be imprisoned until the debt and costs were satisfied. As in English law, the plaintiff was required to maintain the debtor in prison by paying what was called groats. The defendant could say on oath that he had no means of maintaining himself in prison. If this occurred, the plaintiff had to provide maintenance for him in prison according to the order of the Court. If the amount ordered by the court was not paid for one week, the debtor could be discharged from prison and also discharged from the debt.Appeals
There was a right of appeal to the governor from a decision of the court. An appeal had to be lodged with the governor within eight days of the decision of the court. The governor sat on appeal with the judge-advocate as an advistor. If the appellant was unsuccessful before the governor and the amount involved exceeded £300 sterling, the unsuccessful appellant might go further by appealing to the Privy CouncilPrivy council
A privy council is a body that advises the head of state of a nation, typically, but not always, in the context of a monarchic government. The word "privy" means "private" or "secret"; thus, a privy council was originally a committee of the monarch's closest advisors to give confidential advice on...
. An appeal in that case had to be lodged within fourteen days. Only one recorded appeal from this court was heard by the Privy Council.
Notable cases
The first civil case under English lawEnglish law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
in Australia was Cable v Sinclair, heard on 1 July 1788. David Collins
David Collins
-People:* David Collins , 18th-century cricketer associated with Hampshire* David Collins , played for Wellington and Cambridge University...
was presiding as judge-advocate with the Reverend Richard Johnson
Richard Johnson (chaplain)
Richard Johnson was the first Christian cleric in Australia.Johnson was the son of John and Mary Johnson. He was born in Welton, Yorkshire and educated at Hull Grammar School under Joseph Milner. In 1780 he entered Magdalene College, Cambridge as a sizar and graduated in 1784...
and John White
John White
-Musicians:* John White , English musician* John White , American country music singer, writer on the genre of western music* John Simon White , American vocal coach and opera director-Politicians:...
appointed as the other members of the court.
The case concerned the loss of baggage on the voyage of the First Fleet
First Fleet
The First Fleet is the name given to the eleven ships which sailed from Great Britain on 13 May 1787 with about 1,487 people, including 778 convicts , to establish the first European colony in Australia, in the region which Captain Cook had named New South Wales. The fleet was led by Captain ...
from England to Botany Bay
Botany Bay
Botany Bay is a bay in Sydney, New South Wales, a few kilometres south of the Sydney central business district. The Cooks River and the Georges River are the two major tributaries that flow into the bay...
and Port Jackson
Port Jackson
Port Jackson, containing Sydney Harbour, is the natural harbour of Sydney, Australia. It is known for its beauty, and in particular, as the location of the Sydney Opera House and Sydney Harbour Bridge...
, now known as Sydney
Sydney
Sydney is the most populous city in Australia and the state capital of New South Wales. Sydney is located on Australia's south-east coast of the Tasman Sea. As of June 2010, the greater metropolitan area had an approximate population of 4.6 million people...
. After hearing evidence, the court found in favour of the plaintiff and awarded damages against the ship’s master. Bruce Kercher notes that this decision goes against the then English principles of law relating to “convict attaint” which provides that a prisoner under sentence of death was unable to sue or hold property. Henry and Susannah Cable both were sentenced to death but had their sentence commuted to transportation, so under law, they were not entitled to sue.
Its other important cases are online.
Legality
The legal status of the court has been debated. Under English law at the time, the monarch could only establish common law courts in settled lands, which the English had considered the colony of New South Wales to be. However, equitable and other types of courts could not be established except by an Act of Parliament made by the Imperial Parliament of Great Britain. This position was recognised by the Supreme Court of New South WalesSupreme Court of New South Wales
The Supreme Court of New South Wales is the highest state court of the Australian State of New South Wales...
in 1832 in Harris v. Riley [1832] NSWSupC 76 when the court under Chief Justice Francis Forbes
Francis Forbes
Sir Francis Forbes was a Chief Justice of the Supreme Court of Newfoundland, and the first Chief Justice of the Supreme Court of New South Wales.-Early life:...
held that the Court of Civil Jurisdiction did not have an equitable jurisdiction and that the decision of the court in that particular case was void.
Abolition
The court had outlived its original purpose by the early 19th century. There was a growing clamour in the colony for a legally qualified judge to head the superior court of the colony. The settlement in Van Diemen's LandVan Diemen's Land
Van Diemen's Land was the original name used by most Europeans for the island of Tasmania, now part of Australia. The Dutch explorer Abel Tasman was the first European to land on the shores of Tasmania...
was also not being properly serviced by the court as the court sat only in Sydney. The court was loath to undertake the long journey to Hobart
Hobart
Hobart is the state capital and most populous city of the Australian island state of Tasmania. Founded in 1804 as a penal colony,Hobart is Australia's second oldest capital city after Sydney. In 2009, the city had a greater area population of approximately 212,019. A resident of Hobart is known as...
to conduct sittings.
Recommendations had been made by Ellis Bent to the British authorities along those lines for reform of the courts in the colony. In 1814, the British sovereign established three new courts to replace the court. These were the Supreme Court of Civil Judicature, the Governors Court
Governors Court
The Governors Court was a court established in the early 19th century in the colony of New South Wales. The colony was subsequently to become a state of Australia in 1901. The court had jurisdiction to deal with civil disputes where the amount in dispute in the colony was not more than £50 sterling...
and the Lieutenant Governor's Court
Lieutenant Governor's Court
The Lieutenant Governor’s Court was a court established in the early 19th century in the colony of Van Diemen's Land which subsequently became Tasmania, a state of Australia. The court had jurisdiction to deal with civil disputes where the amount in dispute was not more than £50 sterling in the...
. The court ceased sitting in 1814 as a result of the revocation of its charter.
Sources
- History of New South Wales From the Records, Volume 1 - Governor Phillip 1783–1789 by George B Barton – Published 1889
- Alex CastlesAlex CastlesAlexander "Alex" Cuthbert Castles was an Australian historian and author who specialized in Australian legal history. He is the author of a number of published books in Australia as well as the author of numerous articles written for various journals.Castles was born in Melbourne, Australia...
, An Australian Legal History, Law Book Co, 1975. - Watkin TenchWatkin TenchLieutenant-General Watkin Tench was a British Marine officer who is best known for publishing two books describing his experiences in the First Fleet, which established the first settlement in Australia in 1788...
, A Complete Account of the Colony of New South Wales, http://www.gutenberg.org/etext/3534 - David CollinsDavid Collins-People:* David Collins , 18th-century cricketer associated with Hampshire* David Collins , played for Wellington and Cambridge University...
, An Account of the English Colony in New South Wales, Volume 1, With Remarks on the Dispositions, Customs, Manners, Etc. of The Native Inhabitants of That Country. to Which Are Added, Some Particulars of New Zealand http://www.gutenberg.org/etext/12565 - Bruce Kercher, Debt, Seduction and other Disasters: the Birth of Civil Law in Convict New South Wales, Federation Press, 1996.