Lieutenant Governor's Court
Encyclopedia
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 colony. The establishment of the court was the first practical civil court in the settlement. This was an important first step in improving the resolution of civil disputes in the settlement. The Supreme Court of Van Diemen's Land eventually replaced it in 1823 when the court’s charter was revoked by the Third Charter of Justice.
was appointed as the colony’s first governor and did much to ensure the colony of New South Wales survived and transformed into a modern colonial outpost.
Phillip’s commission extended his authority from the top of Australia to the bottom of Tasmania plus islands to the east of New South Wales.
Soon after the commencement of the New South Wales colony, Phillip was directed to commence a colony at Norfolk Island
. Later, Governor Philip Gidley King
was ordered to found a colony in Van Diemen’s Land to prevent the French from laying claim to it.
In 1803, King choose Lieutenant John Bowen
, a British soldier to start the colony. Bowen chose Risdon Cove
on the eastern shore of the River Derwent in the south-east for the first settlement of Europeans. In 1804 Lieutenant-governor David Collins moved the settlement across the river and Hobart was founded.
The beginnings of the colony as a penal colony were hard. Food was in short supply and convicts had to be disciplined. Nevertheless, it soon prospered particularly with whaling and the release of convicts into the community who had served their time. With the increased prosperity came the need for better access to forms of civil justice.
The British authorities foresaw the need for a civil judicial system to be established in the colony of New South Wales. A court styled the “Court of Civil Jurisdiction
” was established by the First Charter of Justice as well a Court of Vice-Admiralty pursuant to letters from the High Admiralty in Great Britain. This court was a failure for the settlement in Van Diemen’s Land as the court would not sit outside Sydney. Litigants had to make an arduous journey to Sydney by boat to prosecute their case. The introduction of the Lieutenant Governor’s Court was the first step in providing adequate access to justice in the settlement.
dated 4 February 1814 issued by King George III the reigning sovereign of England of the time. The court was styled the “Lieutenant Governor’s Court” pursuant to the patent. It was composed of a deputy judge-advocate for Van Diemen's Land, who was commonly known as the “judge-advocate”, and two other persons inhabiting the island appointed by the Lieutenant Governor of Van Diemen's Land. The judge-advocate was the presiding officer. The lieutenant governor was not actually involved in the operation of the court nor did he preside as its head.
The court could also sit with only two members, but in that case, one of those members had to be the judge advocate. The court had jurisdiction hear and determine summarily actions relating to land, houses, debt, contract, trespass, and just about any other common law
or equitable
case up to £50 sterling. The cause of action had to arise in the island of Van Diemen's Land.
The court was abolished in 1823 when it was replaced by the Supreme Court of Van Diemen's Land established by Letters Patents dated 13 October 1823. The letters were authorised by the British Parliament through the passing of the New South Wales Act 1823 (UK)
. The abolition was on the recommendation of Commissioner John Bigge
who was appointed by the British authorities to inquire into the state of the New South Wales colony.
, the first “Tasmanian” judge-advocate, arrived in Hobart
in February 1815. His arrival meant that it was technically possible for the court to sit in early 1815. This was not to be as his formal appointment had not arrived, so he could not be sworn in to the office.
In April, Lieutenant-Governor Thomas Davey
proclaimed martial law
which further delayed Abbott’s swearing in. Abbott returned to Sydney to collect documents concerning his court. He returned to Hobart in November and in December opened the court for sitting.
Governor of New South Wales, Lachlan Macquarie
, did not think that Abbott was up to the task of running the court. However, Abbott proved to be the right man for the position at the time. Whilst he had a small knowledge of the law, he simplified procedure, reduced fees, and proceeded by common sense rather than legal niceties. Royal Commissioner Bigge contrasted the operation of this court with the Governors Court
in Sydney and found that Abbott’s court operated more efficiently and effectively than the Sydney based court.
. The report by the Select Committee of the House of Commons recommended that it was inappropriate for an appeal to be available for the amounts of money involved in proceedings before these types of courts. In general, the court was expected to operate in the same manner as a Court of Requests
.
, much to the displeasure of those residents and to the disapproval of Bigge. However, this was much preferable to not having a court at all, or having to travel to Sydney for determining a matter. Parties to disputes went to elaborate lengths to avoid taking claims over fifty pounds to the Supreme Court of Civil Judicature, which overwhelmingly sat at Sydney. One of the methods was to structure a debt so that it was composed of separate amounts of fifty pounds, so that each part of the debt could be sued for in the court in Hobart.
This was an ongoing problem of concern. Between 1816 and 1819, there were 1560 cases lodged with the court. 1083 were heard and 477 were withdrawn. The increased commercial activity in the settlement made the fifty pound limit a barrier to trade. Bigge had to shame the Supreme Court of Civil Judicature to sit in Hobart in 1819, its first ever sitting there. Bigge was to subsequently recommend the establishment of the Supreme Court of Van Diemen's Land to remedy this situation.
Compounding this problem was that up to 1821, no lawyers had arrived to practice in the settlement. The court had to admit to practice people who had no legal training at all. This has led Alex Lowe to conclude that Van Diemen's Land "was essentially a realm of legal amateurism".
Van 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...
which subsequently became Tasmania
Tasmania
Tasmania is an Australian island and state. It is south of the continent, separated by Bass Strait. The state includes the island of Tasmania—the 26th largest island in the world—and the surrounding islands. The state has a population of 507,626 , of whom almost half reside in the greater Hobart...
, 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 to deal with civil disputes where the amount in dispute was not more than £50 sterling in the colony. The establishment of the court was the first practical civil court in the settlement. This was an important first step in improving the resolution of civil disputes in the settlement. The Supreme Court of Van Diemen's Land eventually replaced it in 1823 when the court’s charter was revoked 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 of New South Wales survived and transformed into a modern colonial outpost.
Soon after the commencement of the New South Wales colony, Phillip was directed to commence a colony at Norfolk Island
Norfolk Island
Norfolk Island is a small island in the Pacific Ocean located between Australia, New Zealand and New Caledonia. The island is part of the Commonwealth of Australia, but it enjoys a large degree of self-governance...
. Later, Governor Philip Gidley King
Philip Gidley King
Captain Philip Gidley King RN was a British naval officer and colonial administrator. He is best known as the official founder of the first European settlement on Norfolk Island and as the third Governor of New South Wales.-Early years and establishment of Norfolk Island settlement:King was born...
was ordered to found a colony in Van Diemen’s Land to prevent the French from laying claim to it.
In 1803, King choose Lieutenant John Bowen
John Bowen (colonist)
John Bowen was a naval officer and colonial administrator. Led the first settlement of Tasmania at Risdon Cove. He was the son of James Bowen, and was born at Ilfracombe, Devon, England.-Early career:...
, a British soldier to start the colony. Bowen chose Risdon Cove
Risdon Cove
Risdon Cove was the site of the first British settlement in Van Diemen's Land, now Tasmania, the smallest Australian state. Risdon Cove, which was named after William Bellamy Risdon, second officer of the ship Duke of Clarence. Risdon served under Lt...
on the eastern shore of the River Derwent in the south-east for the first settlement of Europeans. In 1804 Lieutenant-governor David Collins moved the settlement across the river and Hobart was founded.
The beginnings of the colony as a penal colony were hard. Food was in short supply and convicts had to be disciplined. Nevertheless, it soon prospered particularly with whaling and the release of convicts into the community who had served their time. With the increased prosperity came the need for better access to forms of civil justice.
The British authorities foresaw the need for a civil judicial system to be established in the colony of New South Wales. 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 a Court of Vice-Admiralty pursuant to letters from the High Admiralty in Great Britain. This court was a failure for the settlement in Van Diemen’s Land as the court would not sit outside Sydney. Litigants had to make an arduous journey to Sydney by boat to prosecute their case. The introduction of the Lieutenant Governor’s Court was the first step in providing adequate access to justice in the settlement.
Constitution
The court was created by Letters PatentLetters 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 of the time. The court was styled the “Lieutenant Governor’s Court” pursuant to the patent. It was composed of a deputy judge-advocate for Van Diemen's Land, who was commonly known as the “judge-advocate”, and two other persons inhabiting the island appointed by the Lieutenant Governor of Van Diemen's Land. The judge-advocate was the presiding officer. The lieutenant governor was not actually involved in the operation of the court nor did he preside as its head.
The court could also sit with only two members, but in that case, one of those members had to be the judge advocate. The court had jurisdiction hear and determine summarily actions 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...
case up to £50 sterling. The cause of action had to arise in the island of Van Diemen's Land.
The court was abolished in 1823 when it was replaced by the Supreme Court of Van Diemen's Land established by Letters Patents dated 13 October 1823. The 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...
. The abolition was on the recommendation of Commissioner John Bigge
John Bigge
John Thomas Bigge was an English judge and royal commissioner.Bigge was born at Benton House, Northumberland, England, the second son of Thomas Charles Bigge, High Sheriff of Northumberland in 1771...
who was appointed by the British authorities to inquire into the state of the New South Wales colony.
Sittings of the court
Edward AbbottEdward Abbott (jurist)
Edward Abbott was a soldier, politician, judge-advocate and public servant who served at Parramatta, the Hawkesbury River and Norfolk Island in the colony of New South Wales, now part of present-day Australia...
, the first “Tasmanian” judge-advocate, arrived in 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...
in February 1815. His arrival meant that it was technically possible for the court to sit in early 1815. This was not to be as his formal appointment had not arrived, so he could not be sworn in to the office.
In April, Lieutenant-Governor Thomas Davey
Thomas Davey
Thomas Davey was the second Lieutenant Governor of Van Diemens Land.-Early life:Few details are known of his early life, but Thomas Davey was serving in the army or navy in 1777, and went to Australia as a lieutenant-colonel of the Royal Marines with the First Fleet 10 years later...
proclaimed martial law
Martial law
Martial law is the imposition of military rule by military authorities over designated regions on an emergency basis— only temporary—when the civilian government or civilian authorities fail to function effectively , when there are extensive riots and protests, or when the disobedience of the law...
which further delayed Abbott’s swearing in. Abbott returned to Sydney to collect documents concerning his court. He returned to Hobart in November and in December opened the court for sitting.
Governor of New South Wales, 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...
, did not think that Abbott was up to the task of running the court. However, Abbott proved to be the right man for the position at the time. Whilst he had a small knowledge of the law, he simplified procedure, reduced fees, and proceeded by common sense rather than legal niceties. Royal Commissioner Bigge contrasted the operation of this court with 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...
in Sydney and found that Abbott’s court operated more efficiently and effectively than the Sydney based court.
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 of the United Kingdom
Her Majesty's Most Honourable Privy Council, usually known simply as the Privy Council, is a formal body of advisers to the Sovereign in the United Kingdom...
. The report by the Select Committee of the House of Commons recommended that it was inappropriate for an appeal to be available for the amounts of money involved in proceedings before these types of courts. In general, the court was expected to operate in the same manner 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...
.
Problems with the court
The court did not sit at LauncestonLaunceston, Tasmania
Launceston is a city in the north of the state of Tasmania, Australia at the junction of the North Esk and South Esk rivers where they become the Tamar River. Launceston is the second largest city in Tasmania after the state capital Hobart...
, much to the displeasure of those residents and to the disapproval of Bigge. However, this was much preferable to not having a court at all, or having to travel to Sydney for determining a matter. Parties to disputes went to elaborate lengths to avoid taking claims over fifty pounds to the Supreme Court of Civil Judicature, which overwhelmingly sat at Sydney. One of the methods was to structure a debt so that it was composed of separate amounts of fifty pounds, so that each part of the debt could be sued for in the court in Hobart.
This was an ongoing problem of concern. Between 1816 and 1819, there were 1560 cases lodged with the court. 1083 were heard and 477 were withdrawn. The increased commercial activity in the settlement made the fifty pound limit a barrier to trade. Bigge had to shame the Supreme Court of Civil Judicature to sit in Hobart in 1819, its first ever sitting there. Bigge was to subsequently recommend the establishment of the Supreme Court of Van Diemen's Land to remedy this situation.
Compounding this problem was that up to 1821, no lawyers had arrived to practice in the settlement. The court had to admit to practice people who had no legal training at all. This has led Alex Lowe to conclude that Van Diemen's Land "was essentially a realm of legal amateurism".
Trivia
The commonly accepted spelling for the settlement is "Van Diemen's Land". However, in the Second Charter, the settlement was spelt variously as "Van Diemans Land", "Van Dieman's Land", "Van Diemens Land" and of course "Van Diemen's Land".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.