The Supreme Court of Civil Judicature of New South Wales 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 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.
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 Phillip 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 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. Author Hilary Golder points to research that magistrates were in fact dealing with small debt claims as early as 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. This was to reflect the changing nature of society in New South Wales from a penal colony to a trading colony. Bent's recommendation also 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. Whilst not all of Bent's recommendations were taken up, a Select Committee of the House of Commons reporting on the question of transportation to the colonies made similar recommendations. Eventually the British authorities arranged for new charters to issue for the reform of the civil courts and it is possible that the new courts were established in response to the Rum Rebellion in 1807 and 1808.
Constitution
The British authorities introduced three new civil courts into the colony. They were the Governors Court which had jurisdiction over civil claims in New South Wales and a Lieutenant Governor's Court to deal with civil claims in Van Diemen's Land. Each court was limited to the value of fifty pounds sterling.
For claims over fifty pounds, a new court styled the "Supreme Court of Civil Judicature" was established. This court was commonly known as the "Supreme Court", a usual practice in British colonies according to author and judge William Windeyer. 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 a judge (who was appointed by the British authorities, and two magistrates (the common name used for justices of the peace at the time) appointed by the Governor of New South Wales. The judge was the presiding officer. Alternatively, the court could be constituted by just the judge and one of the two magistrates 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 over the value of £50 sterling. 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 of this court, noted in a report to the British authorities that there was such a possibility of appointing laymen with no legal knowledge to the court. Biographer R. J. Mckay suggests that Governor Thomas Brisbane had in fact attempted to do this.