On Friday, 5 August 2011, a full complement of Supreme Court Judges, sitting en banc, many in full regalia and in the presence of Her Excellency, Ms Penelope Wensley AC, the Governor of Queensland, sat in a packed court room to celebrate the sesquicentenary of the Supreme Court of Queensland. The court, in all its splendour, was filled with retired judges, judges from other jurisdictions, magistrates, wigged and robed barristers, solicitors and members of the public. It was a momentous and significant occasion; a proud moment in our legal history.
The celebrated 7 August 1861, is the date the Supreme Court Constitution Amendment Act of 1861 (“the Act”) received assent; and six days before Mr Justice Lutwyche received his commission as a Supreme Court Justice of the new colony of Queensland; the first judge of the Supreme Court. However, this is not the full story.
On 21 March 1859, and twenty months before the Act came into being, Lutwyche J received his commission as the Resident Judge of Moreton Bay. After his appointment, His Honour sat as the Supreme Court Judge in Moreton Bay, exercising both its civil and criminal jurisdictions. Nine months later, on 10 December 1859, Queensland became a separate colony when the proclamation was published in the Gazette, and read before a large and excited crowd in front of the Governor’s residence in Adelaide Street (the Deanery at St Johns). His Honour administered the oaths and over the ensuing twenty months continued to hear and determine cases in the local courts as he did before. The Act1 recognized the earlier 1859 commission and made provision for its cancellation upon His Honour receiving a new one.
The demand for the establishment of a separate court north of the Tweed River began decades earlier, and years before a separate northern colony was established. The excessive cost and time taken to commence or defend a proceeding in Sydney resulted in regular and persistent shouts of injustice by the local residents. This argument was even raised by convicts in 1829, at a time when the penal population in Moreton Bay had reached its zenith. Moreton Bay convicts, Matthews and Allen were charged with murder and transported to Sydney for trial. They argued that prospective witnesses who could support their defence were not given permission to make the long and expensive journey south. Similar arguments again reverberated after the penal settlement closed and the locality was opened to free settlers.
The authorities responded by proclamation2 directing that a Circuit Court be held in Brisbane.3 Sitting in the old chapel at the convict barricks on 13 May 1850, Mr Justice Therry was the first Supreme Court Judge ever to preside over a trial in Brisbane. The first trial concerned a charge of larceny against William Stanley. Stanley stole a bundle of IOUs or calabashes from a hotel, located near to where QPAC is now situated at Southbank. He was convicted but in answer to a question reserved for the Full Court, it was held that these calabashes were illegal and could not be the subject of a larceny charge. During these sittings, His Honour also heard the first murder trial north of the Tweed. Jacob Wagner and Patrick Fitzgerald were charged and convicted of murdering fellow sheep-herder James Marsden at Wide Bay and hanged for their efforts. A few months later, in November 1850, Sir Alfred Stephens, the first Chief Justice ever to sit on the Supreme Court bench in Brisbane, presided over the second circuit sittings. During the sittings, His Honour tried the first ever civil case north of the Tweed River.4
The journey to Brisbane by the judges and court staff for the circuit sittings was often delayed by rough seas and inclement weather, resulting in the sittings being delayed. This inconvenience and cost to litigants reinforced the demand for a resident judge. The Sydney judges echoed this demand as they regarded the circuit court in Brisbane an arduous, dangerous and burdensome task.
The struggle to appoint a resident judge in Brisbane was a tortuous one. Superimposed on this out-cry was the growing demand for separation, the realization that it was inevitable, and the belief by many that insufficient work existed to justify the cost of a full time judge in Brisbane.
On 1 January 1856, Samuel Frederick Milford was appointed a Judge of the Supreme Court of New South Wales pursuant to the Moreton Bay Judge Act 1855. Despite this appointment as a resident judge, His Honour continued to travel to Brisbane for the Circuit Court sittings.
Within a short period of his appointment, the whole 1855 Act, except s 1, was repealed and replaced by the Moreton Bay Supreme Court Act 1857. This Act created the Supreme Court at Moreton Bay, to be held by a Resident Judge of Moreton Bay. In many respects this legislation established an independent and separate court in Moreton Bay. Within its territory, its jurisdiction was exclusive of the jurisdiction of the Supreme Court of New South Wales with a seal similar to the seal of the Supreme Court of New South Wales. In other respects, the new court was identified with the New South Wales Supreme Court. The new Resident Judge remained for all intents and purposes a Judge of the Supreme Court of New South Wales; appeals lay to the Supreme Court in Sydney; and any new rules established in Brisbane were subject to review by the judges in Sydney.5
The Supreme Court of Moreton Bay was appointed to commence on 1 April 1857. Milford J returned to Brisbane and continued to sit under his existing commission until 15 April 1857 when the Supreme Court at Moreton Bay was opened and the new commissions were read. Milford J was unhappy in Brisbane, made any excuse to return to Sydney, complained of a lack of work and spent the hot summer months in the cooler south. On 20 February 1859 he resigned as the Resident Judge and was replaced by Alfred James Peter Lutwyche.
Lutwyche J was appointed as the Supreme Court Judge at Moreton Bay on 21 February 1859 and opened the court two days later.
The demand for separation succeeded. Queen Victoria signed the Letters Patent on 6 June 1859, issued under the authority of s 7 of the New South Wales Constitution Act 1855. This historical document created the new colony of Queensland and it was to take effect as soon as it was “received and published in the said colonies”. The new colony was established on 10 December 1859 with the arrival of the new Governor; when the Letters Patent were proclaimed in Queensland; and published in the Government Gazette.
The Letters Patent did not deal with the matter of a new court in Queensland but the Order in Council, also dated 6 June 1859, empowered the Governor to make laws for the administration of justice in the colony; all laws, statutes and ordinances in force in the colony of New South Wales and all the courts, civil and criminal, within the said colony and all legal commissions were said to continue.
Despite a Queensland Supreme Court not being established at that time of separation, Lutwyche J continued to preside over both civil and criminal cases in the new colony. However, at the time there was considerable debate concerning his authority.
There are arguments6 that the Supreme Court was established on 10 December 1859 and not 7 August 1861, twenty months later. His Honour Lutwyche J continued to hear and determine cases during this period and was of no doubt about his position. Further, by Article 16 and 20 all the existing courts, civil and criminal within the colony of New South Wales and all legal commissions continued to subsist in Queensland. The question of His Honour’s position was raised in R v Pugh,7 and it was ruled that His Honour held his commission from the Queen under the New South Wales Constitution Act.8 Finally, in 1863, and to remove any doubt,9 it was legislated that the Supreme Court was established at the date of separation, namely 10 December 1859.
In summary, it was right to celebrate the 7th August 2011 as the sesquicentenary of the birth of the Supreme Court of Queensland, but it must be recognized that a Supreme Court operated in Queensland from the date of proclamation.
Stephen Sheaffe10
Footnotes
- Supreme Court Constitution Amendment Act of 1861 s 3.
- Proclamation dated the 12 February 1850
- The Administration of Justice Act 1840 s 13.
- Bowerman v MvKenzie, 18 Nov, 1850; Moreton Bay Courier, 23 Nov 1850.
- BH McPherson, The History of the Supreme Court of Queensland, 1859-1960, History, Jurisdiction, Procedure, Chapter 1.
- BH McPherson, The History of the Supreme Court of Queensland, 1859-1960, History, Jurisdiction, Procedure, Chapter 2.
- (1861) SCL 3.
- Act 18 & 19 Vic 54.
- The Supreme Court Act of 1863.
- A barrister of the Supreme Court of Queensland, a former president of the Royal Historical Society of Queensland and the current president of the National Trust of Queensland.
(Photograph of Mr Justice Lutwyche Courtesy of the Supreme Court of Queensland Library.)
