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The Supreme Court of New South Wales for the District of Port Phillip was established by Act of Council in October 1840: emanating from the Supreme Court of New South Wales at Sydney, its fictitious unity with that court has been in some instances maintained notwithstanding the fact that for many purposes it possessed a distinct independent and subordinate jurisdiction.
This court has been hitherto presided over by one judge invested with all the powers, and discharging duties similar to those, of the three Judges of the Supreme Court of New South Wales in all its various departments to which by a singular incongruity have been superadded those of the Chairman of the Court of Quarter Sessions. It has had a set of ministerial officers not amenable to the control of any other judges. The boundaries of the district of Port Phillip defined the limits of its territorial jurisdiction within which (with certain exceptions) the writs of the Supreme Court of New South Wales could not run and though thus apparently a distinct and Supreme Court with respect to locality identity and authority it had no separate existence. It has been determined "that there are not two separate and distinct supreme courts in the Colony of New South Wales but that the Supreme Court of New South Wales exists for the entire colony". The court was held in Sydney before three judges, at Port Phillip before one, but all were alike judges of the same court and yet, strange to say, an appeal from the Resident Judge of Port Phillip sitting in Banco to his colleagues of the more numerous bench in Sydney was permitted and conducted on a principle similar to that which has regulated an appeal from the Primary Judge in Equity to the Full Court of New South Wales - a course analogous to that from the Master of the Rolls or Vice Chancellor to the Lord Chancellor of England. What is still more incongruous, a writ of certiorari has been directed by the Judges of the Supreme Court to the Resident Judge thus establishing two propositions that the court for the district of Port Phillip is independent of that for New South Wales and at the same time its inferior.
In this state the court has existed for eleven years under four judges in succession and its hitherto anomalous position is rendered still more extraordinary since the erection of the district of Port Phillip into the Colony of Victoria. [135]
The style of the Supreme Court of the Colony of Victoria is "The Supreme Court of New South Wales for the District of Port Phillip" a court of a colony lately severed from a district no longer known by that name. Its judge is a member of the court of another colony. Its Sheriff and Registrar are deputies without any existing official superiors; the power of appeal from the decrees of its judge still subsists, but the appeal is to a foreign court in which conflicting opinions have been expressed by the judges as to their appellate jurisdiction.
This outline of the constitution of the court will enable His Excellency to form but an inadequate idea of the duties of its judge. We will enter into them a little more at large.
The judge holds every year ten courts of general gaol delivery in Melbourne and three on circuit at Geelong, a town only fifty miles from Melbourne, leaving the remote parts of the colony unvisited and rendering it necessary that prisoners should be brought in many instances a distance of two hundred or three hundred miles to either of these towns for trial. Four sittings of nisi prius of fourteen days each are held in Melbourne and three on circuit at Geelong of which the duration is uncertain. Four terms of fourteen days each are also held in Melbourne. Besides this the judge sits weekly to dispose of proceedings in equity and other business. He is in addition liable to have applications, many of which are of great importance to the suitors, made to him almost daily in his chambers and four times in the year he presides as Chairman of the Quarter Sessions. The extreme pressure of business of this multifarious nature not only entails on the judge, unaided as he is, excessive labour, but also much inconvenience on the suitors. And it not infrequently happens that causes in which great expense has been incurred in bringing witnesses from a distance have unavoidably remained untried and been postponed for some months.
When the judge is compelled to leave the capital for circuit, business is suspended to a most prejudicial extent. His absence prevents the possibility of obtaining writs of habeas corpus, injunction or capias and other orders in which dispatch is of the highest consequence and without which persons may be detained improperly in gaol, irreparable injury may be done to property, and fraudulent debtors have opportunities of effecting their escape from the colony.
The Act of the Imperial Parliament by merely perpetuating the legal existence of this court (which would otherwise have been absorbed in the Supreme Court of New South Wales and withdrawn from the Colony of Victoria) and giving validity to its proceedings until Her Majesty should be pleased to issue a Charter of Justice would have afforded no remedy for these inconveniences had not full power been conferred on the local legislature to pass such measures as may be deemed necessary for the better administration of justice.
Were we assured that the advisers of Her Majesty had recommended the immediate transmission to the colony of such a charter we would content ourselves with advising that His Excellency might await the arrival of these letters. But it is to be observed that, although a similar provision was contained in the Constitutional Act of New South Wales passed in the year 1828, no Charter of Justice was ever issued under that Act. Moreover the correspondence between the Right Honourable the Secretary of State for the Colonies and the Governor General induces the belief that, as power is imparted to the colonists by the Constitutional Act to frame measures necessary for the due administration of justice, there exists no present intention on the part of the Home Government to recommend such a measure. [136] We consider that the judicial establishment should not be allowed to remain in the position we have described longer than actual necessity exacts and we therefore submit it as our opinion that the colonial legislature should be invited at the earliest opportunity to pass such enactments as may be deemed necessary to place the judicial establishment on a proper footing and to provide for a more extensive and effectual administration of justice.
We are also prepared to submit to His Excellency additional and independent reasons which fortify the opinion at which we have arrived.
The personal expenses (above those allowed by the Crown or on taxation) incurred by prosecutors, witnesses and suitors in coming from remote parts of the colony to the place of trial are so great, the inconvenience so intolerable, and the actual loss entailed on them by the necessary absence from their ordinary avocations so large, that, in numerous instances we hesitate not to state, civil rights remain unenforced, civil injuries continue unredressed, and criminals are, by a hardly culpable connivance, faintly pursued or reluctantly prosecuted, and a fatal encouragement is afforded to those unaffected by religious or moral restraint on beholding a large amount of crime pass wholly unpunished.
While a large demand is made on the public funds, and the security of the distant portions of the colony is materially impaired, by the necessary abstraction of members of the police force from these districts for the purpose of escorting prisoners and also of giving evidence, the extension of circuits will in a considerable degree remedy these grievances although this extension cannot be effected without an augmentation of the judicial establishment. The administration of justice in remote localities will moreover familiarize with its principles those hitherto almost beyond the reach of its influence. The expeditious prosecution of the offender, and his speedy and certain punishment near the place of the commission of crime, may be expected to alarm and deter from the perpetration of outrage those who have hitherto calculated on escaping with impunity, while it will awaken the interest of those concerned in the maintenance of social order and invigorate the arm of the law.
Judging from the petitions submitted with the other papers as well as from our own knowledge and experience it would appear to be the wish of the public that greater facilities for enforcing civil remedies should be afforded, by the establishment of local courts with jurisdiction similar to that of the County Court of England - such courts being presided over by professional men. Without entering at length into many of the objections to this partial and unsatisfactory expedient, which readily present themselves, we conceive that that object may be more beneficially attained by simplifying the pleadings and process and diminishing the legal expenses now incurred in the prosecution of such cases and by conferring on the judge of assize summary jurisdiction, with power to reserve for further consideration either by himself or if necessary by the full bench any points of difficulty which may arise.
By these means a uniformity of dispensation of the law in all cases would be maintained, the salaries and travelling expenses of the judges of the local courts would be saved, and all the trouble and expense of the creation of new departments, separate jury lists, and multiplied returns would be obviated. [137]
We find also that the extension of the circuits can be recommended on financial grounds and on the footing of general policy. The probable expenses of each prosecution where the witnesses are brought from remote parts of the country are (for example) from Portland £22. 2s. 8d, from Belfast £19. 2s. 8d from Gipps' land £22. 2s. 8d: to these must be added the cost of transit and escort of the prisoner. The loss to the locality by the absence of a portion of its protective force, as also the great temptation to escape afforded to the prisoner, must be taken into consideration. Assuming therefore that twenty prosecutions for crime committed at a distance from the capital take place in the course of the year and, deducting from the expense consequent thereon one-third of the estimated cost as a liberal allowance to pay the witnesses for the prosecution at the assize town and the other incidental charges of escort duty, the remaining two-thirds would amply suffice for defraying the travelling expenses of a judge of assize and the officers employed in conducting the business of the Crown.
The extra labour imposed on the judges by the proposed extension of the circuits, the increase of civil business, and the cessation of colonial appeal on the erection of the Supreme Court of Victoria into an independent tribunal, render it necessary as well as advisable that additional judges should be appointed.
Before we conclude we conceive it our duty to offer some observations on a subject incidental to the general questions proposed to us. The rapid and apparently unexpected growth of the colony has rendered those provisions originally made for the accommodation of the officers of the different departments in the court house quite inadequate. The accumulation of the records and vast increase of memorials of registered deeds have so encumbered the building that much inconvenience is experienced in consequence of actual want of space as well by those employed in the various offices of the court as by the professional gentlemen attracted to them by their business - while the safe custody of the valuable documents therein is indifferently consulted.
Searches of the registry cannot be satisfactorily conducted at present without exposing those engaged to much personal inconvenience and entailing as a natural consequence great expense on those ultimately concerned. Much of the business which should be performed by officers of the court is thrown upon the profession while, on the other hand, certain of the officers are occupied in performing, at the public expense, work which ought to be done by law stationers. The duties of the Registrar of Deeds, Prothonotary, and Taxing Master, devolve on the same person and the performance of those of one office frequently interferes most materially with the due discharge of those of the others . . . It needs no laboured comment to prove that, while the amount of business transacted in these departments is so great, the extent of property affected by their operations so large, and the amount of revenue derived from them so considerable, each should be maintained in a state of perfect efficiency.
We beg to conclude our report with a summary of the recommendations we have the honor to submit for the consideration of His Excellency:
1. That a Bill be introduced into the Legislative Council for the purpose of placing the judicial establishment of the colony on a footing independent of the Colony of New South Wales. [138]
2. That provision be made for increasing the judicial establishment by the appointment of additional judges.
3. That provision be likewise made for the extension of the circuits of the Supreme Court.
4. That provision be also made for a simplification of the administration of justice in all civil cases where the amount in dispute is small with a view of determining such cases with facility economy and expedition.
And, as measures for ulterior consideration:
5. The establishment of a general Registry for Deeds independent of the
Supreme Court with a totally revised system of registration.
6. The appointment to the sole office of Prothonotary and Taxing Officer
of a duly qualified and experienced person.
WILLIAM F. STAWELL
Attorney-General
REDMOND BARRY
Solicitor-General
29th September 1851.
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