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

Jurisdiction of Supreme Court Opinion [1826] NSWSupC 75

Supreme Court, jurisdiction of - nisi prius - New Zealand, Supreme Court jurisdiction over

Supreme Court of New South Wales

Forbes C.J., 9 December 1826

Source: Forbes to Darling, Historical Records of Australia, Series 1, Vol. 12, pp 784-787[1] 

Earl Bathurst having required me to report upon certain points, stated in Mr. Hay's letter to Your Excellency, dated March 13th, 1826, in reference to the difficulties, which appear to have presented themselves to the relief, intended to be afforded me, by the appointment of an additional Judge of the Supreme Court, I have the honor to submit the following remarks for his Lordship's Consideration.

The New South Wales Act [*] was intended to constitute two Courts, one in this Colony, and the other in Van Dieman's Land, with seperate and co-extensive jurisdictions; with this view, the words, "judges of the said Courts respectively," which seemed to have caused the difficulties in question, were introduced instead of seperate and distinct clauses. It will be observed that the plural term, "judges," is never used in reference to one of the Courts, but always to both; the first clause of the Act expressly says that "each of the said Courts shall be holden by one Judge "; the sixth clause directs that all civil issues shall be tried by the Chief Judge and two Assessors, and directs that, in case of challenge, such challenge shall be decided by the judges of the said Courts respectively, "and in case any such judge and assessors cannot agree upon the verdict," etc; from this view of the act, the sixth clause should be read, as if it had been worded in the following manner.

And be it further enacted, etc., that all issues of fact, joined in the Supreme Court of New South Wales, shall be tried by the Judge of the said Court and two Assessors, etc., and all matters of law arising on such trial shall be determined by such judge, etc.

If this be the strict reading of the clause under consideration, the word "judges," cannot mean at the same time both the judge of the Supreme Court, and the judges of such Courts; the difficulty, therefore, which has been raised, does depend not upon the express words of the Act, but must be drawn by inference from the supposed intention of the Legislature and the nature of the thing. I am of opinion that this inference or construction of the Act is not correct; and, in support of my opinion, I have to offer the following arguments.

1st. It is enacted, by the second clause of the Act, that the Supreme Court of this Colony shall be a Court of Record, and shall exercise the several jurisdictions of the Courts of King's Bench, Common Pleas and Exchequer; and that the judges shall have the same jurisdiction, as all or any of the judges at Westminster. Now, by the Statute,

any one Judge of the King's Courts at Westminster is empowered to try "all manner of issues, joined in any of the said Courts, which by the ordinary course of the law ought to be tried in any of the said Courts by an inquest of the County of Middlesex," that is to say, any one judge of the said Courts may try an issue, which by the ancient practice of the Court would have been tried at bar. It is true that the Statutes, by which this authority is given, directs that commissions and writs of nisi prius shall be awarded in the same form, as if such issues had been sent in the ordinary manner for trial before the justices of assize and nisi prius, and that we have not any Commission or writ of nisi prius in this Colony. But it is the point of jurisdiction and power to try, which is material, not the manner in which such jurisdiction may be called into exercise; the forms of proceeding at Westminster and in New South Wales are necessarily varied by circumstances, and the clause under consideration supposes this difference, when, to the words which give the Judges here such and the like powers as the judges have in England, it adds "and as shall be necessary for carrying into effect the several jurisdictions and authorities committed to the Court"; if then one of the judges at Westminster has power to try any issue, joined in one of the King's Courts, and the judges here have collectively and individually the same powers as the judges there, it must follow that one Judge in New South Wales has power to try any issue joined in the Supreme Court. It will be unnecessary to add that the jurisdiction of the justices of Assize and nisi prius extends to criminal as well as civil cases.

2nd. It is laid down by text writers, "that regularly, where there are divers judges of a Court of Record, the act of any one of them is effectual, especially if their commission do not expressly require more." I have endeavoured to shew, and I think successfully, that the words of the act do not expressly require more than one judge to try an issue. It will be borne in mind that the act, under consideration, does not profess to create an entire System of Judicature in New South Wales. It is only a supplementary Act, and was evidently intended to unite in one Court the several jurisdictions of several Courts, and to sanction such alterations in the forms and manner of proceeding, as could not be introduced by the power of the prerogative alone. In all other respects, the Supreme Court of New South Wales is an English Court of Record, and is governed by the analogies, and guided by the practise of the King's Court in England.

3rd. One of the professed objects of Parliament was to provide additional judges in the Supreme Court "from time to time, as occasion may require"; this was obviously intended to meet the exigencies of a growing Colony, and to provide a second judge, when one should become insufficient to transact all the business of the Court. But it must have been as obvious, that the addition of a second judge, so far from accelerating, must necessarily retard the business of the Court, if it require the presence and co-operation of both judges in the performance of an ordinary act of Court. This consequence at least could not have been intended by Parliament. The question has never been stated in this Colony; and the common consent, which may be inferred from the silence of the practitioners, although it cannot alter the law, is allowably called in to explain a doubt. I do not rely, however, upon this argument; nor should I be willing to exercise a jurisdiction over the lives and fortunes of His Majesty's subjects upon no better foundation than common consent, which cannot give jurisdiction, where there was none originally. But, upon the express words of the second section of this Act, upon the principles of analogy drawn from the practise of the Courts at Westminster, and the intentions of Parliament, reduced from the professed objects in view, and the irreconcilability with such objects of the supposed necessity of two judges being present at the trial of every issue and the performance of every ordinary Act of Court, I am of opinion that one judge may try all issues of fact, and discharge every judicial function in New South Wales, which, by the law and practise of the Courts in England, may be done by one judge in Westminster Hall. [2] 


[1] On 1 March 1832, Forbes C.J. and Dowling J. refused to issue a writ of arrest for debt (a capias ad respondendum ) directed at a person in New Zealand. The Court decided that its process could not be enforced there: Sydney Herald, 5 March 1832; Australian, 9 March 1832.

[*] 4 Geo. 4, c. 96. [The editor of Historical Records of Australia said that this and the next footnote were marginal notes in the original.]

18 Eliz., c. 12; 12 Geo. 1, c. 31.

[2] This was an advisory opinion, but the distinction between legislative, judicial and administrative actions was unclear in (1823) 4 Geo. 4, c. 96, the colony's constitution. Forbes C.J. was a member of the Legislative Council as well as the Executive Council, and was also required to give opinions as to the consistency of colonial Acts with the laws of England. See B. Kercher, An Unruly Child: a History of Law in Australia, Allen and Unwin, Sydney, 1995, pp 70-71.

This opinion was drafted in response to the appointment of a second judge of the Supreme Court, John Stephen. Stephen J. was first appointed to the Court in August 1825, under the local Act, 6 Geo. 4 No. 16, but there were doubts about the legality of the appointment. Between February and May 1826, he was Acting Chief Justice, during the illness of Forbes C.J. ( Sydney Gazette, 22 and 25 February 1826). When Forbes C.J. returned to the bench, Stephen resigned both as judge and as Acting Chief Justice ( Sydney Gazette, 3 June 1826). Now he was appointed under Royal Warrant under the Sign Manual, that is, his appointment was an imperial and not simply a colonial matter. On 30 November 1826, he and Forbes C.J. informed Governor Darling that they had agreed to share the business of the Court equally. The documents are at Historical Records of Australia, Series 1, Vol. 12, pp 220, 783-787.


Published by the Division of Law, Macquarie University