Supreme Court of New South Wales
|Supreme Court of New South Wales|
|Country||New South Wales, Australia|
|Composition method||Vice-regal appointment upon Premier's nomination, following advice of the Attorney General and Cabinet|
|Authorized by||Parliament of New South Wales|
|Decisions are appealed to||High Court of Australia|
|Judge term length||mandatory retirement by age of 72|
|Number of positions||48|
|Website||Supreme Court of New South Wales|
|Chief Justice of New South Wales|
|Currently||Justice Tom Bathurst|
|Since||1 June 2011|
The Supreme Court of New South Wales is the highest state court of the Australian State of New South Wales. 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.
Matters of appeal can be submitted to the New South Wales Court of Appeal and Court of Criminal Appeal, both of which are constituted by members of the Supreme Court, in the case of the Court of Appeal from those who have been commissioned as judges of appeal.
The Supreme Court consists of 48 judges, including the Chief Justice of New South Wales, presently Tom Bathurst, the President of the Court of Appeal, nine Judges of Appeal, the Chief Judge in Equity, and the Chief Judge in Common Law.
The first superior court of the Colony of New South Wales (known as the Supreme Court of Civil Judicature) was established by letters patent dated 2 April 1814, known as the Second Charter of Justice of New South Wales. 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 Diemen's Land (the former name for Tasmania). All three courts were concerned with civil matters only.1
Legislation to establish a new supreme court for both New South Wales and Van Diemen's 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 1823.2
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 of New South Wales.
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 prothonotary, 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; gave precedence to the Chief Justice over all other subjects except the Governor (or acting Governor) of the colony; and 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 were not permitted to be admitted.
In 1840, a Port Phillip division of the Court was created, consisting of a single Resident Judge, to exercise the court's jurisdiction in the Port Phillip District of the Colony of New South Wales.3 The division existed until 1852, when it was replaced by the Supreme Court of Victoria following the creation of the Colony of Victoria.4
Also 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 1972, was one of the last Common Law jurisdictions in the world to fuse the administration of 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. Since 1930, three generations of the Street family have served New South Wales as Chief Justice.
Supreme Court Justices Carolyn Simpson, Margaret Beazley and Virginia Bell made headlines in April 1999 when the three sat in the Court of Criminal Appeal in Sydney.5 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.6
The court now operates under the Constitution Act 1902 (NSW), the Supreme Court Act 1970 (NSW), and the Civil Procedure Act 2005 (NSW), 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 of New South Wales, the President of the Court of Appeal, nine Judges of Appeal, the Chief Judge in Equity and the Chief Judge in Common Law. Four Associate Judges deal with pre-trial motions and non-jury trials. The Chief Judge at Common Law 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, and 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 High Court of Australia can review decisions of the Supreme Court of New South Wales in relation to the common law and equitable jurisdictions of the court as well. The High Court of Australia has exercised this power on a number of occasions.
- "Second Charter of Justice" (PDF). Founding Documents. Historical Records of Australia. 2 April 1814. p. 10. Retrieved 8 March 2012.
- "Third Charter of Justice". Historical Records of Australia. 13 October 1823. Retrieved 8 March 2012.
- Bennett, J. M. (1974). A History of the Supreme Court of New South Wales. Sydney: The Law Book Co. ISBN 0-455-19240-5.
- Bennett, J. M. (2001). Sir William a'Beckett: First Chief Justice of Victoria 1852-1857. Leichhardt, New South Wales: The Federation Press. ISBN 1-86287-409-3.
- Graham, Sally (2000-05-26). "Setting the Benchmark". Alumni news. Charles Sturt University. Retrieved 2008-02-10.
- "Media Watch". Gazette (Sydney, NSW: The University of Sydney). 1999. p. 14. Archived from the original on 2008-02-28. Retrieved 2008-02-10.
- "First Charter of Justice" (PDF). Historical Records of Australia. 2 April 1787.
- Constitution Act 1902 (NSW), Part 9 The judiciary
- Supreme Court Act 1970 (NSW)
- Civil Procedure Act 2005 (NSW)
- "Supreme Court - Our History". Lawlink NSW. Retrieved 28 May 2005.
- Chief Justices of New South Wales - Law and History 2: LawlinkNSW
- Brief Overview of the Jurisdiction of the Supreme Court of New South Wales