Supreme Court of New South Wales

The Supreme Court of New South Wales is the highest state court of the Australian State of New South Wales (other than the Court of Appeal and Court of Criminal Appeal, both of which are constituted by members of the Supreme Court who have been commissioned as judges of appeal). It has unlimited jurisdiction within the state in civil matters, and hears the most serious criminal matters. Whilst the Supreme Court is the highest New South Wales court in the Australian court hierarchy, an appeal by special leave can be made to the High Court of Australia.

Background to the establishment of the Court

The first superior court of New South Wales (known as the Supreme Court of Civil Judicature) was established by the Letters Patent dated 2 April 1814. They are known as the Second Charter of Justice. That charter provided that there should be a Supreme Court constituted by a Judge appointed by the King's commission and two Magistrates. The charter also created the Governor's Court and the Lieutenant-Governor's Court. The jurisdiction of the Governor's Court and the Supreme Court extended to Van Diemans Land (the former name for Tasmania). All three courts were concerned with civil matters only.

History

Legislation to establish a new supreme court for both New South Wales and Van Diemans Land was prepared in London by James Stephen, counsel to the Colonial Office, and Francis Forbes, Chief Justice of Newfoundland and Chief Justice-designate of New South Wales. The act was called an "Act to provide for the better administration of justice in New South Wales and Van Diemen's Land and for the more effectual government thereof" and is commonly numbered as "4 Geo. IV, c. 96". The statute was passed on 19 July 1823.

In consequence of this legislation, Letters Patent establishing the New South Wales Supreme Court were sealed on 13 October 1823, and proclaimed in Sydney on 17 May 1824. They are known as the Third Charter of Justice.

This charter provided that there should be a Chief Justice for the colony of New South Wales in the Island of New Holland (as the continent of Australia was then known), as well as other judges, a registrar, a prothonotory, a master, and a Keeper of Records and such other Officers as may be necessary for the administration of Justice in the colony.

The charter also established the office of sheriff.

The charter gave precedence to the Chief Justice over all other subjects except the Governor (or acting Governor) of the colony.

The charter also allowed the Court to admit persons to be barristers, attorneys, proctors or solicitors as the case may be. Previously, a person had to be admitted as such in the United Kingdom. However, ex-convicts where not permitted to be admitted.

In 1840, the Parliament of New South Wales established a separate equity division in the court. Limited jurisdiction in divorce cases was granted in 1873 and full Admiralty jurisdiction was added in 1911. The Supreme Court, in 1970, was one of the last Common Law jurisdictions in the world to fuse Equity and Common Law, although these continue as the historic names for the two divisions of the court. This process began in the United Kingdom with the passage of the Judicature Acts in 1873.

Supreme Court Justices Carolyn Simpson, Margaret Beazley and Virginia Bell made made headlines in April 1999 when the three sat in the Court of Criminal Appeal in Sydney. The Justices threw out an appeal from a convicted computer hacker who had, out of "sheer maliciousness", been posting offensive messages on Ausnet's homepage. According to the Women Lawyers Association of NSW, there had never been an all-female bench in England or New Zealand at the time.

Structure and Jurisdiction

The court now operates under the Supreme Court Act 1970, although provisions on the appointment and removal of judicial officers were incorporated into the state's Constitution in 1992. The court consists of 47 judges, including the Chief Justice, the President of the Court of Appeal, 9 Judges of Appeal, the Chief Judge in Equity and the Chief Judge in Common Law. 4 Associate Judges deal with pre-trial motions and non-jury trials. The Chief Justice usually sits in the Court of Criminal Appeal while the President sits in the Court of Appeal.

The court hears very serious cases such as murder and treason, civil cases involving more than $750 000 and civil matters such as wills, injunctions, Admiralty. The court's work at first instance is divided between the Common Law Division, which hears civil, criminal and administrative law matters and the Equity Division which hears equity, probate, commercial, admiralty and protective matters. The court includes the Court of Appeal and the Court of Criminal Appeal which hear appeals from the District Court and the Local Court and from single judges sitting in the Common Law or Equity Divisions. The Court of Appeal also hears appeals from the Land and Environment Court of New South Wales and a number of administrative tribunals.

The Court of Appeal and the Court of Criminal Appeal are respectively the highest civil and criminal courts in the state. To appeal to the High Court of Australia from the Court of Appeal or the Court of Criminal Appeal, special leave must be granted by the High Court.

Appeals from state supreme courts to the High Court are not limited to matters in which a federal question arises and the Constitution empowers the Federal Parliament to make laws vesting state courts with federal jurisdiction.

The Supreme Court Building

Current Judges

Chief Justice

• James Spigelman (19 May 1998)

President of the Court of Appeal

• James Allsop (2 June 2008)

Judges of the Court of Appeal

• Margaret Beazley (1996)
• Roger Giles
• David Hodgson (23 April 2001)
• David Ipp (21 October 2002)
• Murray Tobias (28 April 2003)
• Ruth McColl (29 April 2003)
• John Basten (2 May 2005)
• Joseph Campbell
• Virginia Bell (2008)

Chief Judge at Common Law

• Peter McClellan (2 September 2005)

Chief Judge in Equity

• Peter Young (23 April 2001)

Judges

• Michael Grove
• Tim Studdert
• Bruce James
• William Windeyer
• Robert Hulme
• Carolyn Simpson (1994)
• Peter Hidden
• Graham Barr
• John Hamilton
• Clifford Einstein
• Michael Adams (1998)
• David Kirby (1998)
• Robert Austin (1998)
• Patricia Bergin (1 March 1999)
• Anthony Whealy (26 June 2000)
• Roderick Howie (11 October 2000)
• Reg Barrett (19 March 2001)
• George Palmer (23 April 2001)
• Terence Buddin (30 January 2002)
• Ian Gzell (4 February 2002)
• Henric Nicholas (5 February 2003)
• Robert McDougall (21 August 2003)
• John Hislop (23 March 2004)
• Richard White (27 April 2004)
• Clifton Hoeben (16 August 2004)
• Peter Johnson (1 February 2005)
• Peter Hall (8 March 2005)
• Megan Latham (12 April 2005)
• Stephen Rothman (3 May 2005)
• Paul Brereton (15 August 2005)
• Derek Price (28 August 2006)
• David Hammerschlag (30 January 2007)
• Ian Harrison (12 February 2007)
• Elizabeth Fullerton (19 February 2007)
• Lucy McCallum (2008)
• Nigel Rein (2008)

Associate Judges

• John McLaughlin
• Bryan Malpass
• Richard Macready
• Joanne Harrison

Chief Justices of New South Wales

• Sir Francis Forbes: 1824–1837
• Sir James Dowling: 1837-1844
• Sir Alfred Stephen, 1844-1873
• Sir James Martin: 1873-1886
• Sir Julian Emanuel Salomons, 12-27 November 1886
• Sir Frederick Matthew Darley, 1886-1910
• Sir William Portus Cullen, 1910-1925
• Sir Philip Whistler Street, 1925-1934
• Sir Frederick Richard Jordan, 1934-1949
• Sir Kenneth Street, 1950-1960
• H. V. Evatt, 1960-1962
• Sir Leslie Herron, 1962-1972
• Sir John Kerr, 1972-1974
• Sir Laurence Street, 1974-1988
• Murray Gleeson, 1988-1998
• Jim Spigelman, 1998-

References

• First Charter of Justice 2 April 1787
• Second Charter of Justice 2 April 1814
• Third Charter of Justice 13 October 1823
• Constitution Act 1902, Part 9 The Judiciary
• Supreme Court Act 1970
• "Supreme Court - Our History". Lawlink NSW. {{cite web}}: Unknown parameter |accessdaymonth= ignored (help); Unknown parameter |accessyear= ignored (|access-date= suggested) (help)
• Chief Justices of New South Wales - Law and History 2: LawlinkNSW