Court of Civil Jurisdiction

The British authorities foresaw the need for a judicial system to be established in the colony to deal with civil matters.

The institution of these first courts in the then fledgling colony were important first steps in establishment of the rule of law in Australia.

The court was created by the First Charter of Justice, issued by King George III in the form of letters patent dated 2 April 1787.

The court had jurisdiction to hear and determine summarily actions relating to land, houses, debt, contract, trespass, and most other common law or equitable cases of any amount.

If the amount in dispute exceeded £10, the provost marshal was directed to bring the defendant personally into court.

In the latter case, the defendant was required to find security for the amount of the judgment and deliver it to the provost marshal.

Proceedings would begin with the judge advocate administering an oath to each of the other officers of the court appointed by the governor for that sitting.

For example, the first case before the court Cable v Sinclair[2] involved two ex-convicts suing a master of a ship for loss of luggage.

This in effect allowed the provost marshal to seize the defendant's goods and sell them, subsequently paying the proceeds to the plaintiff.

David Collins was presiding as judge-advocate with the Reverend Richard Johnson and John White appointed as the other members of the court.

The case concerned the loss of baggage on the voyage of the First Fleet from England to Botany Bay and Port Jackson, now known as Sydney.

After hearing evidence, the court found in favour of the plaintiff and awarded damages against the ship's master.

Bruce Kercher notes that this decision goes against the then English principles of law relating to "convict attaint" which provides that a prisoner under sentence of death was unable to sue or hold property.

Recommendations had been made by Ellis Bent to the British authorities along those lines for reform of the courts in the colony.