Governors Court
Encyclopedia
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. The Supreme Court of New South Wales
replaced the court in 1823 when the Supreme Court was created by the Third Charter of Justice.
was appointed as the colony’s first governor and did much to ensure the colony survived and transformed into a modern colonial outpost
Notwithstanding its beginnings as a penal colony, it soon prospered as a booming agricultural and mercantile colony. With the increased prosperity came the need for better access to forms of civil justice. Systems for the resolution of commercial disputes are an important part of the common law tradition in British based legal systems, particularly with the establishment of the rule of law
.
The British authorities foresaw the need for a civil judicial system to be established when the colony was first established. A court styled the “Court of Civil Jurisdiction
” was established by the First Charter of Justice as well as a Court of Vice-Admiralty pursuant to letters patent from the High Admiralty in Great Britain. The Governor of New South Wales would also in time authorise magistrates (the common name for justices of the peace in the colony at the time) to determine smaller debt claims that were taking up the time of these original civil courts. Hilary Golder points to research that magistrates were in fact dealing with small debt claims as early 1789, one year after the commencement of the colony.
Ellis Bent
, the first barrister appointed as deputy judge advocate for the colony, made recommendations to Governor Lachlan Macquarie
for the establishment of new civil courts to reflect the changing nature of the society from a penal colony to a trading colony. This reflected the public sentiment in New South Wales that it was time for a legally qualified judge to head a superior court in the colony, rather than a military officer who happened to have legal qualifications. Macquarie supported this and eventually the British authorities arranged for new charters to issue for the reform of the civil courts.
” which had jurisdiction over civil claims in New South Wales and the settlement at Van Diemen’s Land. There was also established a Lieutenant Governor’s Court to deal with civil claims in Van Diemen’s Land.
In respect of New South Wales, a court styled the “Governors Court” was established. The court was created by Letters Patent
dated 4 February 1814 issued by King George III the reigning sovereign of England at the time. It was composed of the deputy judge-advocate, commonly known in the colony as the “judge-advocate”, and two other persons appointed by the Governor of New South Wales. The judge-advocate was the presiding officer
. Alternatively, the court could be constituted by just the judge-advocate and one of the two persons appointed by the governor.
The court had jurisdiction to hear and determine actions summarily relating to land, houses, debt, contract, trespass, and just about any other common law
or equitable
cases up to £50 sterling in value.
One defect in the Court was the ability for a governor to possibly “stack” the court. Sir John Wylde
, the last judge-advocate for the colony, and the last judge-advocate to preside, noted in a report to the British authorities that there was such a possibility of appointing laymen with no legal knowledge to the court and R. J. Mckay suggests that Governor Thomas Brisbane
had in fact attempted to do this.
, had Brooks and Hook unanimously adopt a rule that no attorney who had been struck off the roll of lawyers should be admitted to practise before the court.
This was to lead to a falling out between Bent and Macquarie over the status of emancipated convicts. The rule was particularly onerous as there were no attorneys in the colony who hadn’t arrived there as convicts. As each convict attorney had been struck off the roll, effectively there was no attorney who could appear in the court.
The court later sat with Frederick Garling
as acting deputy judge advocate after the death of Bent. Sir John Wylde
was appointed by the British authorities in 1815 as Bent’s successor and presided in the Court until its abolition in 1823.
From about 1817, the court also sat twice a year outside Sydney
. New South Wales State Archives records show that the court at least sat at Parramatta
and Windsor
for the trial of causes.
. The lack of a right of appeal reflected the fact that British authorities intended the court as a Court of Requests
dispensing justice in a more summary way. As the amounts involved before the court were usually quite small, the cost of an appeal would have exceeded whatever was recovered in any event.
who was the deputy-judge-advocate at the time of the creation of the court. The rules included provisions relating to the rights of attorneys to practise, how writs were issued and returned, the keeping of court records, the execution of judgements and pleading procedure. An original copy of those rules is held by the State Library of New South Wales with annotations later made by Bent’s successor Wylde.
.
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...
. The colony was subsequently to become 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...
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. The Supreme Court of New South Wales
Supreme 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...
replaced the court in 1823 when the Supreme Court was created by the Third Charter of Justice.
Background
The British government established the colony of New South Wales primarily as a penal colony with the intention of encouraging later settlement. Captain Arthur PhillipArthur 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 and did much to ensure the colony survived and transformed into a modern colonial outpost
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...
.
The British authorities foresaw the need for a civil judicial system to be established when the colony was first established. A court styled the “Court of Civil Jurisdiction
Court of Civil Jurisdiction
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...
” was established by the First Charter of Justice as well as a Court of Vice-Admiralty pursuant to letters patent from the High Admiralty in Great Britain. The Governor of New South Wales would also in time authorise magistrates (the common name for justices of the peace in the colony at the time) to determine smaller debt claims that were taking up the time of these original civil courts. Hilary Golder points to research that magistrates were in fact dealing with small debt claims as early 1789, one year after the commencement of the colony.
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...
, the first barrister appointed as deputy judge advocate for the colony, made recommendations to Governor Lachlan Macquarie
Lachlan Macquarie
Major-General Lachlan Macquarie CB , was a British military officer and colonial administrator. He served as the last autocratic Governor of New South Wales, Australia from 1810 to 1821 and had a leading role in the social, economic and architectural development of the colony...
for the establishment of new civil courts to reflect the changing nature of the society from a penal colony to a trading colony. This reflected the public sentiment in New South Wales that it was time for a legally qualified judge to head a superior court in the colony, rather than a military officer who happened to have legal qualifications. Macquarie supported this and eventually the British authorities arranged for new charters to issue for the reform of the civil courts.
Constitution
The British authorities introduced three new civil courts to the colony. There was a Supreme Court of Civil Judicature (commonly referred to as the “Supreme CourtSupreme court
A supreme court is the highest court within the hierarchy of many legal jurisdictions. Other descriptions for such courts include court of last resort, instance court, judgment court, high court, or apex court...
” which had jurisdiction over civil claims in New South Wales and the settlement at Van Diemen’s Land. There was also established a Lieutenant Governor’s Court to deal with civil claims in Van Diemen’s Land.
In respect of New South Wales, a court styled the “Governors Court” was established. The court was created by 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 4 February 1814 issued by King George III the reigning sovereign of England at the time. It was composed of the deputy judge-advocate, commonly known in the colony as the “judge-advocate”, and two other persons appointed 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...
. Alternatively, the court could be constituted by just the judge-advocate and one of the two persons appointed by the governor.
The court had jurisdiction to hear and determine actions summarily relating to land, houses, debt, contract, trespass, and just about any 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
Equitable
-Companies:*Scottish Equitable, is an investment company located in Edinburgh*Equitable PCI Bank*The Equitable Life Assurance Society, life insurance company in the United Kingdom...
cases up to £50 sterling in value.
One defect in the Court was the ability for a governor to possibly “stack” the court. Sir John Wylde
John Wylde
Sir John Wylde was Chief Justice of the Cape Colony, Cape of Good Hope and a judge of the Supreme Court of the colony of New South Wales born at Warwick Square, Newgate Street, London.-Member of a family of lawyers:...
, the last judge-advocate for the colony, and the last judge-advocate to preside, noted in a report to the British authorities that there was such a possibility of appointing laymen with no legal knowledge to the court and R. J. Mckay suggests that Governor Thomas Brisbane
Thomas Brisbane
Major-General Sir Thomas Makdougall Brisbane, 1st Baronet GCH, GCB, FRS, FRSE was a British soldier, colonial Governor and astronomer.-Early life:...
had in fact attempted to do this.
Sittings of the court
The court first sat in May, 1815. Macquarie appointed Richard Brooks and Charles Hook as respectable persons to sit with Bent on the new Court. Bent, being under the influence of his brother Jeffery Hart BentJeffery Hart Bent
Jeffery Hart Bent, occasionally known as Geoffrey Hart Bent was the first judge in the colony of New South Wales, Australia.-Early life:...
, had Brooks and Hook unanimously adopt a rule that no attorney who had been struck off the roll of lawyers should be admitted to practise before the court.
This was to lead to a falling out between Bent and Macquarie over the status of emancipated convicts. The rule was particularly onerous as there were no attorneys in the colony who hadn’t arrived there as convicts. As each convict attorney had been struck off the roll, effectively there was no attorney who could appear in the court.
The court later sat with Frederick Garling
Frederick Garling
Frederick Garling was an English attorney and solicitor, and was one of the first solicitors admitted in Australia and was regarded as the first senior solicitor of the second Supreme Court established in the colony of New South Wales, which is now a State of Australia...
as acting deputy judge advocate after the death of Bent. Sir John Wylde
John Wylde
Sir John Wylde was Chief Justice of the Cape Colony, Cape of Good Hope and a judge of the Supreme Court of the colony of New South Wales born at Warwick Square, Newgate Street, London.-Member of a family of lawyers:...
was appointed by the British authorities in 1815 as Bent’s successor and presided in the Court until its abolition in 1823.
From about 1817, the court also sat twice a year outside 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...
. New South Wales State Archives records show that the court at least sat at Parramatta
Parramatta, New South Wales
Parramatta is a suburb of Sydney, in the state of New South Wales, Australia. It is located in Greater Western Sydney west of the Sydney central business district on the banks of the Parramatta River. Parramatta is the administrative seat of the Local Government Area of the City of Parramatta...
and Windsor
Windsor, New South Wales
Windsor is a town in the state of New South Wales, Australia. Windsor is located in the local government area of the City of Hawkesbury. It sits on the Hawkesbury River, on the north-western outskirts of the Sydney metropolitan area. At the 2006 census, Windsor had a population of...
for the trial of causes.
Appeals
There was no right of appeal from decisions of the court. This was in contrast to the situation with the Supreme Court of Civil Judicature where there was a right of appeal to the governor sitting as a court of appeal, with a possible further right of appeal 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...
. The lack of a right of appeal reflected the fact that British authorities intended the court as a Court of Requests
Court of Requests
The Court of Requests was a minor equity court in England and Wales. Created at an unknown date, it first became a formal tribunal with some Privy Council elements under Henry VII, hearing cases from the poor and the servants of the King. It quickly became popular due to the low cost of bringing a...
dispensing justice in a more summary way. As the amounts involved before the court were usually quite small, the cost of an appeal would have exceeded whatever was recovered in any event.
Rules of court
The Rules and Orders of the Governors Court were drawn up by Ellis BentEllis 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...
who was the deputy-judge-advocate at the time of the creation of the court. The rules included provisions relating to the rights of attorneys to practise, how writs were issued and returned, the keeping of court records, the execution of judgements and pleading procedure. An original copy of those rules is held by the State Library of New South Wales with annotations later made by Bent’s successor Wylde.
Abolition
The court was abolished in 1823 after sitting for some eight years. It was replaced by the newly created Supreme Court of New South Wales established by Letters Patent dated 13 October 1823. Those letters were authorised by the British Parliament through the passing of the New South Wales Act 1823 (UK)New South Wales Act 1823 (UK)
The New South Wales Act 1823 was an Act of the Parliament of the United Kingdom with the long title "An Act to provide, until the First Day of July One thousand eight hundred and twenty-seven, and until the End of the next Session of Parliament, for the better Administration of Justice in New...
.
Sources
- 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...
, A Legal History of Australia, Law Book Co, 1975.