Supreme Court of Civil Judicature of New South Wales
Author Hilary Golder points to research that magistrates were in fact dealing with small debt claims as early as 1789, one year after the commencement of the colony.
[1] Ellis Bent, the first barrister appointed as Deputy Judge Advocate for the colony, made recommendations to Governor Lachlan Macquarie for the establishment of new civil courts.
[5] The court was created by letters patent dated 4 February 1814 issued by King George III the reigning sovereign of England at the time.
The court had jurisdiction to hear and determine actions summarily relating to land, houses, debt, contract, trespass, and just about any other common law or equitable cases over the value of £50 sterling.
[7] Jeffery Bent, the first judge of the court, arrived in Sydney by boat on 28 July 1814 with great expectations.
[8] After being sworn in, Bent refused to open his court until proper facilities were put in place for his use.
Bent sought the use of the southern wing of the general hospital for use of the court and for judge's chambers.
In April 1815, Macquarie then attempted to recommend the appointment of George Crossley and Edward Eagar to Bent.
After a number of stormy interactions between them and Bent, Broughton and Riley were of the view that ex-convict lawyers should be admitted temporarily to appear before the court until Garling had arrived.
Bent decided to resume sitting on 5 October 1816 when Garling ceased acting as Deputy Judge Advocate.
Macquarie at his wits' end decided to cancel the appointments of the two magistrates to sit on the court.
The provost-marshal declined to execute, and eventually Macquarie was to issue a declaration that Bent was "'positively and absolutely removed from his appointment as Judge of the Supreme Court in, and a magistrate of this Territory".
Field then also ruled that pardoned convicts were unable to hold property, sue or give evidence in any Court.
Commissioner Bigge commented upon this by saying 'The convict part of the population of New South Wales view Mr Justice Field's administration of the law with sentiments of dissatisfaction.
The free classes of the population … equally apprehend the effects of his violent and unforgiving temper, as well as of his personal prejudices, upon his future decisions … In my opinion, Mr Justice Field does not possess that degree of temper and deliberation necessary to conduct the judicial business of such a Colony'.
Field was the first superior court judge to sit in Van Diemen's Land, which was to eventually become the State of Tasmania.
Field was welcomed into "Hobart Town" after his journey from Sydney with a thirteen gun salute by the Lieutenant-Governor of the settlement.
[3] The first sittings of the court was preceded by a parade of Field in his ceremonial robes with all of the settlement's magistrates.
On this occasion, both Field and Judge Advocate Wylde held civil and criminal courts in Van Diemen's Land.
He continued to act in the role until the new Supreme Court of New South Wales opened under Francis Forbes on 17 May 1824.
This marked a departure from earlier courts in New South Wales where formality had been minimised to some extent due to the colonial conditions at the time.
Forbes said that the public "might be excused for believing,[that the rules] were not so operative in facilitating the ends of justice, as in filling the pockets of the practitioners"[15] This was particularly a concern as lawyers in those days were paid by number of words written, and longer and more complex documents allowed steeper legal fees to be charged.
Between April 1817 and January 1821 Bigge reported that the Court dealt with 165 actions at law and 13 suits in equity.
[17] Those letters were authorised by the British Parliament through the passing of the New South Wales Act 1823 (UK).
Of course, there was the expectation of extensive delay in pursuing a further appeal as a journey back to England would be required to litigate the matter.
