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3-110 (Original)

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author,male,Legislative Act,un addressee,male
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Government English
Imperial Correspondence
Bennett, 1979
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6. Observations on the Present and Probable Future Wants of the Colony, in Connexion with the Administration of Justice (1855)
1. Law business so very much fluctuates in this colony, both in criminal and in civil matters, that it is never very easy to predicate of any year, what judicial arrangements will be sufficient for its dispatch. But, for the last 18 months, at the least, the judges (I do not hesitate to say) have, with materially reduced incomes, been unreasonably and inconveniently over-tasked in work. The Chairman of Sessions, being also Commissioner of Requests, is so much overworked, that he cannot possibly (I conceive) discharge longer all his duties: - his courts being already held, at very inconvenient and unprecedented times, and he himself being kept flying all the year round from town to town, without opportunity for study, or one week's repose. The Master, being also Insolvency Commissioner, never has (so far as I can learn) one hour disengaged, throughout the year; and he has no proper assistance under him, in his several departments. The Sheriff's duties are largely increased; and he has so many jury summonses to serve, (the number being very much beyond all former precedent,) that it is really unintelligible to me, how the officers contrive to do the duty.
2. Formerly, the judges were able to appropriate Saturdays to consultations; and not only were four nisi prius sittings sufficient, but there were occasionally two or three days to spare - which were devoted to conferences, or drawing judgments, or to study. But, during the last year, and the present, we have had to provide for two extra nisi prius sittings; and not only is every day fully occupied, but "remanets" are common at each. The court also sits on Saturdays; and almost invariably has a full paper - so that consultations, for more than an occasional hour, are impracticable. The chamber business has greatly increased. And, whereas formerly we had no Brisbane Circuit, and five or six days would almost always suffice on the other circuits, eight and ten days are now common at each. In 1853, the number of new trial motions, causes tried, and actions brought, in the Supreme Court, were respectively 43, 162, and 1377. In 1854, the numbers were 83, 229, and 2275. In 1853, there were 97 cases in Equity, by bill, rule nisi, claim, or petition. In 1854, the number was 114. Insolvencies have increased, from 22 to 78; and the monthly present rate of increase is still greater.
3. The Brisbane Circuit is a most inconvenient, and harassing one, to all parties concerned in going or returning there. It could not be fixed for any other times; but the effect is, to prevent consultations (by the three judges) during more than a month of the year, at the most desirable periods for consultation, and in November to throw on two judges all the other duties, at a time, when causes are being tried daily, - and twice a week two courts sit simultaneously. The same must be said, with regard to the Goulburn Circuit. Yet, without another judge, and (as I think there ought to be in any event) a third Crown Prosecutor, this evil could not be avoided. [85]
4. I have little doubt, that, if the Brisbane Circuit Court be abolished, a third Crown Prosecutor appointed, and the three remaining circuits all taken (as they then could and ought to be) within one month half-yearly, instead of being spread over six weeks half-yearly, - and especially if the Supreme Court were relieved of all civil cases up to one hundred pounds, by "Recorders' Courts" - on the plan which I shall suggest presently, a fourth judge need not be appointed. But, still, I think that the three would have more duty than is desirable, in reference to the public interest - if business should continue to increase, as it has done the last eighteen months. Judges should have leisure for professional and general reading. At the end of every term, also, and every nisi prius sittings, they ought to have two or three (or more) open days, for conferences. At present, they have not - and long have not had. All my own studies, and almost all my office work, have been at night. All this tends to favor the appointment of a fourth judge. But, as a general rule, I believe it to be of great importance not to have many judges, in the Supreme Court of any country. The responsibility should be, and should be felt to be, very great; and should not be divided among more, than are essentially required for the actual work to be done. The position, also, should be looked up to; and it is clear, that, in proportion as you make the members of this class many, so will the estimation and prestige of that position diminish.
5. It seems clear to me, moreover, that, if a fourth Supreme Court Judge be appointed, (unless, indeed, he be appointed exclusively for Moreton Bay,) there will still be provision required, for the due administration of justice in the Northern Districts. At present, all that extensive tract of country is placed, we may almost say, without the pale of municipal law: - and something much more effectual, and accessible, than a mere circuit court, with a Supreme Court in Sydney, has long been required there. But to have a resident Supreme Court Judge at Moreton Bay, would be every way objectionable; and, in truth, almost ludicrous. Such a functionary (altho', as originally at Port Phillip, he may be called so,) will be in no respect a Judge of the Supreme Court, which is one and indivisible. The measure will be, in effect, a contradiction; and a cutting of one court in two, for no conceivable purpose. Any separate court, at and for Moreton Bay, should obviously be so in name as well as in fact - and a separate judge, (whether an appeal lay or not to the other judges, in Sydney,) would be to all intents and purposes a separate court.
6. The objection, and it is a very great one, to any court established in a confined territory, (or a large one, with few inhabitants,) with a judge exclusively there residing, is this; - that he almost necessarily stagnates; he has no means of comparing his legal knowledge, with that of other men; however ignorant he may (by gradual deterioration) become, there is no one on the spot to detect, or at any rate to expose his ignorance; and he has nothing to excite him to superiority, or emulation. Independently of all this, the judge is liable to suspicions of being biased - and the like. Whether it be expedient, therefore, or at any rate wise, if the measure can be avoided, to have a sole superior judge in Brisbane, is a question to be considered. I need give no opinion on it. In any event, of course, the court or judge will not have jurisdiction without appeal. The power of appealing is the best (and often the only) security, against the several evil tendencies spoken of. The knowledge that the power exists, subject to proper checks and conditions, inspires confidence in the suitor; compels watchfulness and care in the judge: and its exercise tends, even though an appeal be but rarely interposed, to make decisions uniform, correct, and satisfactory. [86]
7. But, as a court of some kind for the Northern Districts is indispensable, the only practical question is - (putting aside the question of a circuit court, in addition,) - what its form shall be. I humbly recommend a "Recorder's Court" - with civil and criminal jurisdiction: the judge to be styled "Recorder for Brisbane". There will be required, a Crown Prosecutor, (who might be Crown Solicitor also, and discharge the duties of Clerk of the Peace,) a Registrar, and a Sheriff who might be a person holding some other office also. An appeal to be, by "special case", to the Supreme Court, in civil cases, where the question was of importance in itself, or the sum exceeded £50; and, on all "points reserved" in criminal cases, in like manner as at present.
8. If the jurisdiction be limited, I would fix the amount in civil cases at £200: and, in criminal cases, to every case except capital ones, wounding with intent to do grievous bodily harm, perjury, and one or two more to be specified; and restrict the punishment, in every case, to a maximum of seven years hard labour. Perhaps all cases punishable by hard labour or imprisonment might be triable, provided that a limit were established in the punishment: - so that, if a heavier sentence were supposed to be proper, the case might be left for the circuit court. If the jurisdiction be unlimited, all these questions will of course be avoided. The "appeal" would remain the same, in either event. And, in either event, it may easily be made matter of arrangement, whether the Recorder shall or not hold a court at Ipswich, - and eventually at Drayton - or other places.
9. The court, in its civil jurisdiction, should try summarily (as in a court of "conscience" or "requests") all cases under £20. All cases above that amount, should be by a jury of four - or of three; unless the parties should agree, that the Recorder may decide without a jury. The union of both judge, and jury, (as is the practice now in the Court of Requests,) in giving the verdict, is open to serious objections. These small cases might be called "requests cases" - and the costs be proportionably trifling.
10. If of limited jurisdiction, the Recorder should nevertheless have power to initiate proceedings to any amount; as in cases of arrest, or ne exeat, or waste. And to his court should go all cases of appeal, which by the present law are carried to the Courts of Quarter Sessions.
II. If he is to have limited jurisdiction, it would seem (or may be thought) to follow, that a fourth judge will be indispensable. Such judge would, in all respects, I presume, have the same duties and powers as the present judges. All would alike go the circuit; the only difference being, that each judge would take each circuit, once in two years; instead of once in 18 months - as at present. This, of course, would be a considerable relief. Only three should sit in banco, at any time; just as, at Westminster, only four judges so sit, while the fifth is engaged elsewhere. The fourth, if in Sydney, would discharge chamber duties, (at present frequently a serious interruption to business in term,) prepare judgments, and do office work; - as well as, probably, sit separately in Equity and Insolvency. He might also take, perhaps, other business; although of what nature, I am not prepared now to suggest. But I trust that the appointment of a fourth judge, if one be appointed, will not result in the imposition [...] the bench of such, or so many additional duties, as to prevent its affording the other members any relief, from undue pressure.