The Supreme Court of Civil Judicature was established by letters patent for Courts of Civil Judicature on 4 February 1814 (Second Charter of Justice), in response to growing agitation for reforms to the system for administering civil justice in New South Wales (which included the settlements in Van Diemen’s Land. The new Charter abolished the old Court of Civil Jurisdiction which has operated since the arrival of the First Fleet in 1788.
The new Supreme Court was a Court of record, and consisted of a judge appointed by the Crown and two magistrates appointed from time to time by the Governor. The Court was authorised to hold plea of and determine all pleas concerning lands, tenements, hereditaments, and all manner of interests.
The Court dealt with all pleas of debt, account or other contract, trespasses, and all other personal pleas, except where the cause of action was less than £50, in which case the matter would be heard in the new Governor’s Court, also established by the Second Charter of Justice. The jurisdiction of the Court covered common law, equity and probate, with judgements being given according to law and equity rather than the first Charter’s concept of according to justice and right.
There was provision for appeal to the Governor assisted by the Judge-Advocate. In all cases where the amount involved was less than £3,000, the Governor’s decision was final. For amounts exceeding £3,000, there was opportunity for a further appeal to the Privy Council, but only upon the appellant’s giving security for at least double the amount in question.
Although the new Court was established in February 1814, it did not open its doors for business until 1817. Jeffrey Hart Bent, an English barrister of almost ten years’ standing (as he thought fit to regularly remind the inhabitants of the Colony) was commissioned as the first Judge of the Supreme Court. As set out in the Second Charter of Justice, the Judge’s presence was always required when the Court convened, although the two lay magistrates who sat with the Judge on the Bench had the power to overrule the Judge.
When it became clear to Jeffrey Bent that the two magistrates were prepared to agree to the admission of three former convict lawyers to appear in the Court (in the absence of any free lawyers in the Colony) he refused to take participate in the Court’s proceedings which left the other two members of the Court powerless to act.
Until he was recalled by the Home Office in 1817, Bent spent his time feuding with Governor Macquarie who complained in correspondence with Lord Bathurst in 1816 that the ‘highest law officer in the colony is the root of every faction and cabal that takes place in the colony’.
A second judge, Barron Field, was commissioned to replace Bent, arriving in Sydney in February 1817. Jeffrey Bent had been too preoccupied with pursuing his vendetta against Governor Macquarie to find time to write any rules for the operation of the Court so Field’s first task was to draft a set of rules which, as far as possible, followed the practice of the courts of Westminster. Following approval of the rules by the Governor, the Supreme Court commenced sitting regularly in Sydney for the first time in 1817.
In January 1819 Barron Field went to Van Diemen’s Land to officiate at the first Circuit Court held in Australia. Before this any civil cause arising in Van Diemen’s Land, if beyond the jurisdiction of the Lieutenant Governor’s Court (which could only hear matters up to ₤50) had to be tried in the Supreme Court in Sydney. Field returned to Hobart in 1821 for the last sitting of the 1814 Supreme Court in Van Diemen’s Land.
The Supreme Court of Civil Judicature was abolished by the New South Wales Act ( 4 Geo. IV, Act No. 96) and two new Supreme Court Courts, one in New South Wales and one in Van Diemen’s Land, with both Civil and Criminal Jurisdictions, were established in its place.
Macquarie University provides access to some of the judgments of the Supreme Court of Civil Judicature at Decisions of the Superior Courts of New South Wales 1788-1899.