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Unreported Judicial Decisions of the Privy Council, on Appeal from the Australian Colonies before 1850

Introduction

This site is a companion to two sites which publish the surviving records of the New South Wales and Van Diemen's Land or Tasmanian Supreme Courts. All three sites are designed to fill part of the great hole in Australian records, the paucity of judge made law in the nineteenth century, particularly before 1850. By publishing the surviving records of the Privy Council, it is possible to trace some cases from their origins in the Australian cases right through to London.[1] 

The Case Index to this Privy Council site contains 20 cases, including six decisions reported in the English Reports. There are also three other cases mentioned in the records, for which we have only brief details. In total, there are surviving records in London of 23 pre-1850 Australian appeals. The six reported cases have some additional material on this site which does not appear in the English Reports, but the bulk of the archival material from those cases is not reproduced here. This site concentrates on the 14 cases which do not appear in the English Reports and for which there are more than a few surviving lines. Among these unreported cases, this site reproduces as all of the manuscript and printed records.

The records used in the compilation of this website are kept at the office of the Judicial Committee of the Privy Council, in Downing Street, London, and at the National Archives (Public Record Office), in Kew, London. They are reproduced here by the permission of Mr Frank Hart, Chief Clerk of the Judicial Committee of the Privy Council, and Mr Tim Padfield, Copyright Officer of the National Archives, Kew. This introduction, the commentary, headings, indices and footnotes were written by Professor Bruce Kercher.
 

For the whole of the period covered by this website, the appeals committee or Judicial Committee required the parties to provide Printed Cases, lengthy printed summaries of their arguments and the documents on which they relied. Those printed documents are the main source used here.

There were four stages in appeals. The first was that the appeal was lodged. Then it was referred to an appeals committee or (after 1833) the Judicial Committee of the Privy Council. That committee then reported the case to the full Privy Council, which finally approved the report. The committee's report is analogous to a court's judgment, although, as will be seen by reading the cases, reasons for these reports were usually very brief in the pre-1850 official records. The primary interest in this site is not in the committee's "judgment" then, but in the other records of the case. Here we see, for example, the work of the disgraced convict attorney George Crossley, the first serious lawyer to work in the Australian colonies.

For further information about these cases and the way in which the records were kept, see Bruce Kercher, "Unreported Privy Council Appeals from the Australian Colonies Before 1850" (2003) 77 Australian Law Journal 309.

Thanks

I am particularly grateful to Mr Frank Hart, Chief Clerk of the Judicial Committee of the Privy Council for his very great help during my visit to London in February 2003. I also thank Maggie Liston of Macquarie University for her usual patient and caring assistance.

Bruce Kercher, April 2004

Notes

[1]  See for example, Tetley v Sherwin, 1841 (VDL), and In re Sherwin, 1847 (PC).

Published by the Division of Law, Macquarie University