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Decisions of the Superior Courts of New South Wales, 1788-1899

Practice Note [1824] NSWSupC 23

civil procedure - practice

Supreme Court of New South Wales
Forbes C.J., [1] 13 December 1824
Source: Australian, 16 December 1824

The Chief Justice in opening the Court observed, that before they proceeded to business he would make one or two remarks, with regard to the practice necessary to be adopted. He had hoped instructions would have reached the colony from England [2] - this had not been the case, though certainly some communication had been made to him partly official; but nothing was contained in them definitive, so that it would be necessary to establish local forms which would be submitted for the approbation of his Majesty. - The English practice would be adopted, as far as applicable; the only alteration would be in the process. The Supreme Court, the Chief Justice observed, had jurisdiction over matters that could possibly come before it; and that on the equity, as well as the plea side of the Court, the practice should be assimilated to that of England, after the end of the present Term. [3]

Notes

[1] Although John Stephen was appointed acting Chief Justice on 1 December 1824, the context of the notice and the reference in the Practice Note to official correspondence to "him" make clear that Forbes C.J. was back in office for the 13 December sitting of the court. See Australian, 25 November 1824, p. 1, col. 1; 2 December 1824, p. 4, col. 1. Forbes took a trip to Moreton Bay at this time: Forbes to Wilmot Horton, 7 November 1824, Catton Papers, Australian Joint Copying Project, Reel M791.

[2] The court's Rules could be made by the King, either by Letters Patent or by Order in Council (that is, in London); alternatively, the King could confer the power on the judges of the court: (1823) 4 Geo. IV c. 96, s. 17. This was what Forbes C.J. was waiting for. On 14 August 1824, he pressed Wilmot Horton for a speedy resolution of the problem of the lack of both Rules and the power to make them. He said that it would be better if the power were delegated to himself, the Chief Justice, subject to the power of revocation in London: "pray do not fetter us too much, for be assured we can do the thing better here, than it can be done at home - you cannot command our local knowledge and experience, without which it will be next to impossible to legislate beneficially". On 26 May 1823, he had expressed satisfaction that this power was reserved to the King. (Letters in Catton Papers, Australian Joint Copying Project, Reel M791).

[3] The first Rules created by Forbes C.J., made in accordance with this statement while he was still waiting to hear from London, were published in the Australian and Sydney Gazette on 13 January 1825. Among them was Rule 2: "It is further ordered that the proceedings of the said Supreme Court within its several and respective jurisdictions as aforesaid [those of King's Bench and Exchequer, and the High Court of Chancery, and the Ecclesiastical Court within the diocese of London, commonly called the Consistory Court], be commenced and continued in a distinct and separate form." Eventually, on 19 October 1824, the King authorised Forbes C.J. to make Rules, which he did again on 22 June 1825: Australian, 23 June 1825; Sydney Gazette, 23 June 1825. The new Rules were very similar to the old, and they were transmitted to the Secretary of State for the Colonies, in London, for approval.

Despite this Practice Statement, Forbes C.J. favoured simple procedures, sweeping away the complexities of English rules. He said, in a letter to Wilmot Horton on 26 May 1823, that "new notions of society require new modes of transacting business". In a later letter to Wilmot Horton, on 14 August 1824, he explained why simple procedures were necessary: in England, complexity was tempered by the honour of the profession, while in New South Wales "the forms of the law may be sedulously resorted to as a covering for chicanery and fraud". He went on to give a legal history of civil procedure in New South Wales, noting that the first courts had followed summary procedures. Contrary to Judge Advocate Ellis Bent, that was not irregular, said Forbes. One of Bent's successors, Barron Field, introduced complex English procedures. Forbes said that Field's changes were received badly by the public "which they might be excused for believing, were not so operative in facilitating the ends of justice, as in filling the pockets of the practitioners." (Letters: Catton Papers, Australian Joint Copying Project, Reel M791.) On the subsequent development of the Rules under Forbes C.J., see J.M. Bennett, A History of the Supreme Court of New South Wales, Law Book Co., Sydney, 1974, 62-64; C.H. Currey, Sir Francis Forbes: the First Chief Justice of New South Wales, Angus and Robertson, Sydney, 1968, 109-110.

 

Published by the Division of Law, Macquarie University