Supreme Court of New South Wales
Encyclopedia
The Supreme Court of New South Wales is the highest state court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...

 of the Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...

n State
States and territories of Australia
The Commonwealth of Australia is a union of six states and various territories. The Australian mainland is made up of five states and three territories, with the sixth state of Tasmania being made up of islands. In addition there are six island territories, known as external territories, and a...

 of New South Wales
New South Wales
New South Wales is a state of :Australia, located in the east of the country. It is bordered by Queensland, Victoria and South Australia to the north, south and west respectively. To the east, the state is bordered by the Tasman Sea, which forms part of the Pacific Ocean. 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, in the case of the Court of Appeal from those who have been commissioned as judges of appeal). It has unlimited jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...

 within the state in civil
Civil law (common law)
Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals or organizations, in which compensation may be awarded to the victim...

 matters, and hears the most serious criminal
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...

 matters. Whilst the Supreme Court is the highest New South Wales court in the Australian court hierarchy
Australian court hierarchy
There are two streams within the hierarchy of Australian courts, the federal stream and the state and territory stream. While the federal courts and the court systems in each state and territory are separate, the High Court of Australia remains the ultimate court of appeal for the Australian...

, an appeal by special leave can be made to the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...

.

Background to the establishment of the Court

The first superior court
Superior court
In common law systems, a superior court is a court of general competence which typically has unlimited jurisdiction with regard to civil and criminal legal cases...

 of New South Wales (known as the Supreme Court of Civil Judicature
Supreme Court of Civil Judicature of New South Wales
The Supreme Court of Civil Judicature of New South Wales was a court established in the early 19th century in the colony of New South Wales. The colony was subsequently to become a state of Australia in 1901. The court had jurisdiction to deal with civil disputes where the amount in dispute in...

) was established by the letters patent
Letters patent
Letters patent are a type of legal instrument in the form of a published written order issued by a monarch or president, generally granting an office, right, monopoly, title, or status to a person or corporation...

 dated 2 April 1814. They are known as the Second Charter of Justice of New South Wales. That charter
Charter
A charter is the grant of authority or rights, stating that the granter formally recognizes the prerogative of the recipient to exercise the rights specified...

 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
Tasmania
Tasmania is an Australian island and state. It is south of the continent, separated by Bass Strait. The state includes the island of Tasmania—the 26th largest island in the world—and the surrounding islands. The state has a population of 507,626 , of whom almost half reside in the greater Hobart...

). All three courts were concerned with civil matters only.

History

Legislation to establish a new supreme court for both New South Wales and Van Diemen's Land was prepared in London by James Stephen
James Stephen (undersecretary)
Sir James Stephen was the British under-secretary of state for the colonies from 1836 to 1847. He was instrumental in implementing the slavery abolition act.-Early life:...

, counsel to the Colonial Office
Colonial Office
Colonial Office is the government agency which serves to oversee and supervise their colony* Colonial Office - The British Government department* Office of Insular Affairs - the American government agency* Reichskolonialamt - the German Colonial Office...

, and Francis Forbes
Francis Forbes
Sir Francis Forbes was a Chief Justice of the Supreme Court of Newfoundland, and the first Chief Justice of the Supreme Court of New South Wales.-Early life:...

, 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
Letters patent
Letters patent are a type of legal instrument in the form of a published written order issued by a monarch or president, generally granting an office, right, monopoly, title, or status to a person or corporation...

 establishing the New South Wales Supreme Court were sealed on 13 October 1823, and proclaimed in Sydney
Sydney
Sydney is the most populous city in Australia and the state capital of New South Wales. Sydney is located on Australia's south-east coast of the Tasman Sea. As of June 2010, the greater metropolitan area had an approximate population of 4.6 million people...

 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
Chief Justice
The Chief Justice in many countries is the name for the presiding member of a Supreme Court in Commonwealth or other countries with an Anglo-Saxon justice system based on English common law, such as the Supreme Court of Canada, the Constitutional Court of South Africa, the Court of Final Appeal of...

 for the colony of New South Wales in the Island of New Holland
New Holland (Australia)
New Holland is a historic name for the island continent of Australia. The name was first applied to Australia in 1644 by the Dutch seafarer Abel Tasman as Nova Hollandia, naming it after the Dutch province of Holland, and remained in use for 180 years....

 (as the continent of Australia was then known), as well as other judges, a registrar, a prothonotary
Prothonotary
The word prothonotary is recorded in English since 1447, as "principal clerk of a court," from L.L. prothonotarius , from Greek protonotarios "first scribe," originally the chief of the college of recorders of the court of the Byzantine Empire, from Greek protos "first" + Latin notarius ; the -h-...

, a master
Master (judiciary)
A Master is judicial officer found in the courts of England and in numerous other jurisdictions based on the common law tradition. A master's jurisdiction is generally confined to civil proceedings and is a subset of that of a judge. Masters are typically involved in hearing motions, case...

, 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
Sheriff
A sheriff is in principle a legal official with responsibility for a county. In practice, the specific combination of legal, political, and ceremonial duties of a sheriff varies greatly from country to country....

.

The charter gave precedence to the Chief Justice over all other subjects except the Governor
Governor
A governor is a governing official, usually the executive of a non-sovereign level of government, ranking under the head of state...

 (or acting Governor) of the colony.

The charter also allowed the Court to admit persons to be barrister
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...

s, attorneys
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...

, proctor
Proctor
Proctor, a variant of the word procurator, is a person who takes charge of, or acts for, another. The word proctor is frequently used to describe someone who oversees an exam or dormitory.The title is used in England in three principal senses:...

s or solicitor
Solicitor
Solicitors are lawyers who traditionally deal with any legal matter including conducting proceedings in courts. In the United Kingdom, a few Australian states and the Republic of Ireland, the legal profession is split between solicitors and barristers , and a lawyer will usually only hold one title...

s 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
Supreme Court of New South Wales for the District of Port Phillip
The Supreme Court of New South Wales for the District of Port Phillip was an historical division of the Supreme Court of New South Wales, exercising the jurisdiction of that court within the Port Phillip District of New South Wales. It consisted of a single Resident Judge...

 of the Court was created, consisting of a single Resident Judge, to exercise the court's jurisdiction in the Port Phillip District
Port Phillip District
The Port Phillip District was an historical administrative division of the Colony of New South Wales, existing from September 1836 until 1 July 1851, when it was separated from New South Wales and became the Colony of Victoria....

 of New South Wales. The division existed until 1852, when it was replaced by the Supreme Court of Victoria
Supreme Court of Victoria
The Supreme Court of Victoria is the superior court for the State of Victoria, Australia. It was founded in 1852, and is a superior court of common law and equity, with unlimited jurisdiction within the state...

 following the creation of the colony of Victoria
Victoria (Australia)
Victoria is the second most populous state in Australia. Geographically the smallest mainland state, Victoria is bordered by New South Wales, South Australia, and Tasmania on Boundary Islet to the north, west and south respectively....

.

Also in 1840, the Parliament of New South Wales
Parliament of New South Wales
The Parliament of New South Wales, located in Parliament House on Macquarie Street, Sydney, is the main legislative body in the Australian state of New South Wales . It is a bicameral parliament elected by the people of the state in general elections. The parliament shares law making powers with...

 established a separate equity division in the court. Limited jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...

 in divorce
Divorce
Divorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties...

 cases was granted in 1873 and full Admiralty
Admiralty law
Admiralty law is a distinct body of law which governs maritime questions and offenses. It is a body of both domestic law governing maritime activities, and private international law governing the relationships between private entities which operate vessels on the oceans...

 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
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

, 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
Judicature Acts
The Judicature Acts are a series of Acts of Parliament, beginning in the 1870s, which aimed to fuse the hitherto split system of courts in England and Wales. The first two Acts were the Supreme Court of Judicature Act 1873 and the Supreme Court of Judicature Act 1875 The Judicature Acts are a...

 in 1873.

Supreme Court Justices Carolyn Simpson
Carolyn Simpson (judge)
Carolyn Chalmers Simpson is a judge of the Supreme Court of New South Wales. Simpson made legal history in 1999 as one of three women judges who formed the first all-female bench to sit in an Australian court.-Early life and education:...

, Margaret Beazley and Virginia Bell made headlines in April 1999 when the three sat in the Court of Criminal Appeal
Court of Criminal Appeal
The Court of Criminal Appeal is the name of existing courts of Scotland and Ireland, and an historic court in England and Wales.- Ireland :See Court of Criminal Appeal ...

 in Sydney
Sydney
Sydney is the most populous city in Australia and the state capital of New South Wales. Sydney is located on Australia's south-east coast of the Tasman Sea. As of June 2010, the greater metropolitan area had an approximate population of 4.6 million people...

. The Justices threw out an appeal
Appeal
An appeal is a petition for review of a case that has been decided by a court of law. The petition is made to a higher court for the purpose of overturning the lower court's decision....

 from a convicted computer hacker
Hacker (computer security)
In computer security and everyday language, a hacker is someone who breaks into computers and computer networks. Hackers may be motivated by a multitude of reasons, including profit, protest, or because of the challenge...

 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
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...

 or New Zealand
New Zealand
New Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses and numerous smaller islands. The country is situated some east of Australia across the Tasman Sea, and roughly south of the Pacific island nations of New Caledonia, Fiji, and Tonga...

 at the time.

Structure and Jurisdiction

The court now operates under the Supreme Court Act 1970 and the Civil Procedure Act 2005 (NSW), although provisions on the appointment and removal of judicial officers were incorporated into the state's Constitution
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...

 in 1992. The court consists of 47 judges, including the Chief Justice, the President of the Court of Appeal
Court of Appeal of New South Wales
The New South Wales Court of Appeal is the highest civil state court for the Australian State of New South Wales. It forms part of the Supreme Court of New South Wales.-History:...

, 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
District Court of New South Wales
The District Court of New South Wales has jurisdiction to hear most indictable offences . It hears appeals from the Local Court and civil claims up to A$750 000. In some circumstances the amount may be higher, e.g. with the consent of the parties or in motor accident claims etc...

 and the Local Court
Local Court of New South Wales
There are over 160 Local Courts in New South Wales. Local Court cases are heard by a magistrate without a jury. It hears summary offences as well as indictable offences and committal hearings. It hears civil claims up to $100,000 and has a Small Claims Division for claims less than $10,000. It...

 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
Land and Environment Court of New South Wales
The Land and Environment Court of New South Wales is a Court established by legislation giving it exclusive jurisdiction to determine environmental, development, building and planning disputes...

 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
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...

 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
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...

 empowers the Federal Parliament
Parliament of Australia
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...

 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.

Judges of the Court of Appeal

  • Margaret Beazley
    Margaret Beazley
    Margaret Joan Beazley AO is a judge of the Court of Appeal of the Supreme Court of New South Wales, the highest court in the State of New South Wales, Australia, which forms part of the Australian court hierarchy.-Career:...

     (1996)
  • Roger Giles
    Roger Giles
    Roger David Giles is a judge of the Court of Appeal of the Supreme Court of New South Wales, the highest court in the State of New South Wales, Australia, which forms part of the Australian court hierarchy.-References:...

  • Ruth McColl
    Ruth McColl
    Ruth Stephanie McColl AO is a judge of the Court of Appeal of the Supreme Court of New South Wales, the highest court in the State of New South Wales, Australia, which forms part of the Australian court hierarchy.-Education:...

     (29 April 2003)
  • John Basten
    John Basten
    John Basten is a judge of the Court of Appeal of the Supreme Court of New South Wales, the highest court in the State of New South Wales, Australia, which forms part of the Australian court hierarchy.-Education:...

     (2 May 2005)
  • Joseph Campbell
    Joseph Campbell (judge)
    Joseph Charles Campbell is a judge of the Court of Appeal of the Supreme Court of New South Wales, the highest court in the State of New South Wales, Australia, which forms part of the Australian court hierarchy.-Education:...

     (2007)
  • Robert Macfarlan
    Robert Macfarlan
    Robert Bruce Scott Macfarlan is a judge of the Court of Appeal of the Supreme Court of New South Wales, the highest court in the State of New South Wales, Australia, which forms part of the Australian court hierarchy.-Education:...

     (2008)
  • Peter Young
    Peter Young (judge)
    Peter Wolstenholme Young AO is a judge of appeal of the Supreme Court of New South Wales, the highest court in the State of New South Wales, Australia, which forms part of the Australian court hierarchy....

     (February 2009)
  • Anthony Whealy
  • Anthony Meagher (10 August 2011)

Acting Judges of Appeal

  • Kenneth Handley
  • Ronald Sackville
    Ronald Sackville
    Ronald Sackville AO is an acting judge of the Court of Appeal of the Supreme Court of New South Wales and a former judge of the Federal Court of Australia.-Career:...

  • David Hodgson
    David Hodgson (judge)
    David Hargraves Hodgson AO is a judge of the Court of Appeal of the Supreme Court of New South Wales, the highest court in the State of New South Wales, Australia, which forms part of the Australian court hierarchy.-Education:...


Judges

  • Tim Studdert
  • Bruce James
  • Robert Hulme
  • Carolyn Simpson
    Carolyn Simpson (judge)
    Carolyn Chalmers Simpson is a judge of the Supreme Court of New South Wales. Simpson made legal history in 1999 as one of three women judges who formed the first all-female bench to sit in an Australian court.-Early life and education:...

     (1994)
  • Peter Hidden
  • Clifford Einstein
  • Michael Adams (1998)
  • David Kirby (1998)
  • Reginald Barrett (19 March 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
    Clifton Hoeben
    Major General Clifton Ralph Russell Hoeben AM, RFD is an Australian judge and soldier.Hoeben is a judge of the Supreme Court of New South Wales...

     (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)
  • Julie Ward (29 September 2008)
  • Robert Hulme (2 March 2009)
  • Michael J Slattery
  • David Davies
    David Davies
    -Politics:*David Davies , also known as David Davies Llandinam, MP for Cardigan, 1874–1885, and Cardiganshire, 1885–1886*David Sanders Davies , Liberal politician, MP for Denbigh 1918–1922...

  • Monika Schmidt
  • Michael Pembroke
  • Michael Ball
    Michael Ball
    Michael Ball may refer to:* Michael Ball , English singer and actor* Michael Ball , American football player* Michael Ball , English football player...

  • Peterd Garling RFD
  • John Sackar
  • Ashley J Black

Acting Judges

  • David Patten
  • Rex Smart
  • Jane Mathews
  • Stephen Norrish
  • William Windeyer
  • Graham Barr
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