Establishment and Constitution
Prior to separation and the establishment of the Supreme Court of Victoria in 1852, the highest court for the Port Phillip District was the Supreme Court of New South Wales for the District of Port Phillip (VA 914). Prior to 1841, the highest local courts had been the Courts of Quarter Sessions which had first been proclaimed on 14 August 1838 and consequently criminal cases and civil litigation of any importance had been heard in New South Wales. In 1841 a Resident Judge of the New South Wales Supreme Court for the Port Phillip District was appointed. In 1852, following separation from New South Wales, the Legislative Council passed an Act (15 Vic.,No.10) to establish the Supreme Court of Victoria.
The Supreme Court is the highest court of the State, having jurisdiction over all civil and criminal matters, which have not been excluded by statute. The 1975 Constitution Act (No.8750) provides for the Supreme Court to consist of two divisions, the Court of Appeal and the Trial Division. All judges are appointed by the Governor on the advice of the Executive Council, from practitioners of not less than eight years standing, and retire by the age of seventy or seventy-two years, depending on when appointed. At present the Supreme Court is comprised of a Chief Justice and a President of the Court of Appeal, and nine Judges of Appeal and twenty Puisne Judges.
The Full Court and from June 1995, the Court of Appeal,(usually three, but sometimes five, judges) hears and determines appeals arising from cases heard by single Judges of the Supreme Court and from the County Court in both civil matters and criminal cases and, with leave, the Victorian Civil and Administrative Tribunal. There is no general right of appeal in civil matters from a decision of a Magistrates' Court, however a dissatisfied party may apply to have a Supreme Court Judge review a case in law. The main activities of the Supreme Court are centred in Melbourne and Judges go "on circuit" to Ballarat, Bendigo, Geelong, Hamilton, Horsham, Mildura, Sale, Shepparton, Wangaratta and Warrnambool.
Functions of the Court
Currently the Supreme Court deals with cases such as murder, manslaughter and other criminal matters, civil actions involving large claims and appeals against decisions of the lower courts. Historically the Supreme Court dealt with matters such as equity, lunacy, divorce and insolvency. Jurisdiction in some of these matters passed to the Commonwealth at or since federation in 1901, for example divorce in 1976, though the State Courts continued to be vested with federal jurisdiction in some cases. Federal laws regarding divorce and marriage had been passed in 1959 and 1961 respectively and these laws superseded state law. Under the provisions of the Family Law Act 1975, operational from 5 January 1976, a Family Court of Australia was established to administer Family Law including considerations for the dissolution of marriage. Appeals against the decisions of the Supreme Court may be heard in the High Court of Australia. Prior to the passing of the Australia Acts in 1986, appeals could also be heard by the Privy Council, although in recent decades such appeals became increasingly rare.
Officers of the Supreme Court
Various officers of the Supreme Court exercise or have exercised judicial and/or administrative responsibility.
From 1842, prime responsibility for the administration of insolvency proceedings was exercised by the Chief Commissioner, and Commissioners of Insolvent Estates. In 1871, under the provisions of the Insolvency Statute 1871 (No.379), jurisdiction in insolvency matters passed to the Court of Insolvency, Melbourne (VA 2304) and to various district Courts of Insolvency. The offices of the Chief Commissioner and Commissioners of Insolvent Estates (for country areas) were abolished. These officials were deemed at the commencement of the Act to have become judges of the Court of Insolvency.
The Master in Equity (also known as the Master in Equity and Lunacy 1867-1923) (VA 2624) was responsible for the administration of matters dealt with under the provisions of the Law of Equity as opposed to those of Common Law and enacted law. The Master in Equity assisted the Supreme Court; provided legal opinions on matters referred by the Court; undertook enquiries and investigations as ordered by the Court; managed financial matters relating to the court, including payments made by trustees or executors and arranged the payment of costs in equity proceedings, conveyancing and other business of the Court.
Under the provisions of the Lunacy Act 1867 (No.309) and subsequent legislation, the Master in Equity as Master in Lunacy was responsible for the supervision and administration of the estates of persons found to be lunatic by inquisition (their estates being managed by individuals known as "committees" who were appointed by the Court following an inquiry by the Master in Equity); patients admitted to public mental hospitals or mental homes and persons of unsound mind who were incapable of managing their own affairs. It was the Master's role to act for persons declared to be lunatics or inebriates before a Judge of the Supreme Court.
In 1940, under the provisions of the Public Trustee Act 1939 (No.4654) responsibility for the administration of estates of patients in mental hospitals and persons incapable of managing their own affairs was assumed by the Public Trustee (VA 719) who also assumed responsibility for functions previously administered by the Curator of Estates of Deceased Persons.
The Master in Equity was also responsible for the granting of probate in cases where it was considered that probate would be granted by the Supreme Court and for the administration of the estates of deceased persons where the administration of the estate was not contested.
Under the provisions of the Master of the Supreme Court Act 1948 (No.5329) the Master of the Supreme Court (VA 2613) became responsible for those functions previously administered by the Master in Equity (VA 2624) and the Chief Clerk of the Supreme Court, including the granting of probate and administration of the estates of deceased persons where the administration was not contested; the investigation of matters as directed by a Judge of the Supreme Court and the supervision of "committees" appointed by the Court to administer the estates of "lunatics". Since 1986, the Master of the Supreme Court has been known as the Senior Master and is responsible for the supervision of other officers of the Supreme Court.
In 1960, the Master of the Supreme Court ceased to have responsibility for probate and administration. The Registrar of Probates (VA 2620) who had previously received direction from the Master of the Supreme Court, assumed statutory responsibility for the granting of probate in those cases where it is considered that probate would be granted by the Supreme Court and for the administration of the estates of deceased persons where such grants are uncontested. Contested estates are determined by the Court.
The Prothonotary of the Supreme Court, now also known as the Principal Registrar, oversees the administrative aspects of actions and appeals coming within the jurisdiction of the Court. Among other things, the Prothonotary is responsible for the issuing of writs and other processes that initiate civil proceedings in the Supreme Court. The Prothonotary is also responsible for the filing of documents and for the custody of Supreme Court records.
The Sheriff administers the Juries Act and is responsible for the enforcement and execution of Supreme Court Writs and Orders and the control and direction of civil warrants issued from Magistrates' Courts and executed by civilian bailiffs. The Sheriff is also responsible for the security of the Supreme Court, its judges and all persons attending the Court. Under the provisions of An Act to make provision for the better control and disposal of Offenders 16 Vic.,32.(1853) certain public gaols, prisons, houses of correction etc. were to be under the charge, care and direction of the Sheriff of the Colony of Victoria. The Sheriff retained responsibility for the supervision of certain prisons until 1871 when, following a Royal Commission on Penal and Prison Discipline, the Statue of Gaols 1864 (No.219) was amended and the Inspector of Penal Establishments became responsible for the supervision of all prisons (see the Statute of Gaols Amendment Act 1871 (No.397)).
NOTE: Far more extensive research into the history of the Supreme Court of Victoria, its officers and administration is required but has not been possible for this edition of the Summary Guide. Researchers requiring further information may find it helpful to consult the Report of the Civil Justice Committee 1984 and in particular, Appendix I, Background Paper on the Administration of the Supreme Court.
Location of Records
For records of the Supreme Court and its officers see also the entries in the Summary Guide for Master in Equity, Supreme Court (VA 2624), Master of the Supreme Court (VA 2613) and Registrar of Probates (VA 2620). See also the following sections of the List of Holdings, 1985 edition, 1994 reprint: 2.2.0 (Supreme Court of Victoria); 2.2.1 (Master in Equity, Supreme Court of Victoria); 2.2.2 (Prothonotary of the Supreme Court); 2.2.3 (Registrar of Probates, Supreme Court of Victoria); 2.2.4 (Sheriff of the Supreme Court) and 3.4.10 (Master in Equity).