|Description of this GroupDescription of this Group|
The Judicial Function
The formal structure of Government including the administration of justice is set down in the Victorian Constitution Act 1975 (No.8750), which re-enacted with additions and amendments the provisions of the 1855 Victorian Constitution Act (passed as a Schedule to the Imperial Act, the Victorian Constitution Statute, 18 and 19 Victoria c.55, proclaimed on 23 November 1855), and the consolidated Constitution Act Amendment Act 1958 (No.6224). The Constitution Act contains provision for the establishment of the Supreme Court and its Officers (1975 Act sections 75-87).
Judicial Power - the power to make judgments about the constitutional validity of laws, their application and interpretation in particular cases, and the application of laws in settling disputes between persons, society and individuals, government agencies, and public officials and persons - is vested in the Courts. The Constitution ensures the independence of the judiciary by providing for the permanent appointment of judges by the Governor with the advice of the Executive Council, and for their salaries and pension entitlements. The only lawful means of removing a judge is by the Governor acting upon an address of both Houses of Parliament (1975 Act, sections 75(5) and 77; 1855 Act, section XXXVIII).
For more detail about the place and role of the judiciary in the Government of Victoria including an explanation of the Courts' role in the creation of unenacted law and the interpretation of enacted law see VRG 17 Executive.
Scope of the Group and Agency Identification
This group includes the records of all Victorian Courts including those of the Supreme Court, the County Court and Magistrates' Courts, previously known as the Courts of Petty Sessions. It also includes the records of judicial officials such as the Master in Equity and the Registrar of Probate who have exercised both judicial and administrative power. The group does not include the records of quasi judicial bodies such as the Public Service Board nor of administrative tribunals.
According to classic theory the distinction between courts and administrative tribunals rests on the exercise of judicial power, however in reality it is often not easy to determine whether judicial power is being exercised and there is some debate among constitutional lawyers and others as to its exact definition.
It has therefore been decided that an arbitrary distinction, based on the legislative lead will be made, and only those bodies actually described as courts in the establishing legislation have been placed in this record group. The records of other bodies established as tribunals, boards and commissions etc. may be found in the record group of the Minister responsible for them.
In most cases the various courts or jurisdictions in each locality have not been identified as separate agencies. All courts in the following categories have been grouped together:
County Courts prior to 1968
Petty Sessions and Magistrates' Courts
Courts of Mines
In these cases the courts in one locality have been identified as a single agency, e.g. the Dunolly Children's Court and Court of Petty Sessions are included in the agency Dunolly Courts. In practice it is often the case that the records themselves are also grouped together.
The Supreme Court (VA 2549) and its Officers, the County Court (VA 686), the Coroners' Courts 1840-1986 (from 1986 the State Coroner's Office) (VA 2263 and VA 2807), Police Magistrates Districts, and the Licensing Courts 1885-1916 (VA 2870), Licensing Court of Victoria 1916-1954 (VA 2955) and Victorian Licensing Court 1954-1968 (VA 2905) have been identified as separate agencies in this edition of the Summary Guide. (NOTE: In the List of Holdings, the various Licensing Courts have been included in the geographical groupings - see Location of Records.)
Early Administration of Justice in the Port Phillip District
The Courts Group dates from the sitting of the first court in the Port Phillip District in 1836. On 9 September 1836 the Governor of New South Wales proclaimed the official settlement of the Port Phillip District. Captain William Lonsdale was appointed Police Magistrate of the District on 14September (see VRG 7 and VA 472). As well as taking responsibility for the general superintendence of the District, he also undertook the duties of a New South Wales District Police Magistrate, including administration of justice and supervision of the local constabulary. In situations where normal administration of the laws required two Justices, one of the officers accompanying Lonsdale was appointed a "Commissioner of the Peace". Following the appointment of a Superintendent of the District in 1839, the duties of the Police Magistrate were restricted to responsibility for the local constabulary and local magisterial functions in Melbourne and the position was retitled Police Magistrate, Melbourne. In the meantime Police Magistrates were being appointed in other localities, Captain Foster Fyans taking up duty in Geelong in late 1837. The Police Magistrates continued to be responsible for the constabulary within their district until 1853 when responsibility for all police matters was vested in the Chief Commissioner of Police (VA 724 - see also VRG 10 Police).
The first official Courts of Petty Sessions (as distinct from Police District/Magistrates' Courts) were gazetted in the New South Wales Government Gazette of 18 July 1838. On 14 August 1838, Courts of Quarter Sessions were proclaimed to hear appeals from Courts of Petty Sessions and more serious criminal cases. The first Court of Requests established to hear civil cases was appointed in 1839 and began sittings in 1840.
Prior to separation and the establishment of the Supreme Court in Victoria in 1852 the highest court for the District was the Supreme Court of New South Wales for the District of Port Phillip (VA 914).
Before 1841 this meant that criminal cases and civil litigation of any importance had to be heard in New South Wales. In 1841, to ease this situation 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 (VA 2549) is the highest court of the State, having jurisdiction over all matters, civil and criminal, which have not been excluded by statute. The 1975 Constitution Act provides for the Supreme Court to consist of not more than thirty judges of whom one is the Chief Justice. All judges are appointed by the Governor on the advice of the Executive Council from the ranks of practising barristers of not less than eight years standing, and retire at the age of seventy-two years. At present, the Supreme Court is comprised of a Chief Justice and twenty-one Puisne Judges.
The Full Court (usually three, but sometimes five, judges) hears and determines appeals from single judges of the Supreme Court and from the County Court, in both civil matters and criminal cases. 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 at Melbourne, and judges go "on circuit" to Ballarat, Bendigo, Geelong, Hamilton, Horsham, 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, eg. insolvency and bankruptcy in 1928 and 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.
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.
Until a separation of the offices in 1859 the Master in Equity also held the position of the Chief Commissioner of Insolvent Estates.
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 Probate (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., No.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 Statute 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).)
The County Court of Victoria is an inferior general court exercising civil, criminal and special jurisdictions. It also sits as an Appeal Court, without a jury, on appeals from Magistrates' Courts.
From 1852 to 1968 there were local County Courts which assumed the functions of the Courts of Request. In 1968 the local County Courts were abolished and one County Court for the whole of Victoria was established. In the same year, Courts of General Sessions, which exercised a purely criminal jurisdiction were abolished and their jurisdiction was vested in the County Court.
The County Court sits continuously at Melbourne and visits seven circuit towns as well as the ten towns also visited by the Supreme Court. Records of the local County Courts are attributed to groupings of courts by geographical location (see Location of Records).
Police Magistrates as judicial officers were appointed, like any other salaried officer, by the Governor-in-Council and later were usually taken from the ranks of the civil service. Besides their general authority as justices of a bailiwick or district, Police Magistrates sitting alone could constitute a Court of Petty Sessions and hand down judgment which would otherwise require the authority of two or more justices.
Police Magistrates as Magistrates of Courts of Petty Sessions had responsibility for summary criminal jurisdiction and the committal for trial or holding to bail of persons accused of indictable offences.
Records of Police Magistrates' Courts are attributed to individual Police Magistrate Districts (see Location of Records).
Petty Sessions/Magistrates' Courts
Magistrates' Courts, known as Courts of Petty Sessions until 1969, exercise both civil and criminal jurisdiction. Magistrates' Courts hear and decide charges of minor offences where the punishment is a relatively small fine or short term of imprisonment and conduct committal proceedings for trials in higher courts. Their records are attributed to groupings of courts by geographical location (see Location of Records).
Other Specialist Inferior Courts
Specialist inferior courts include the Children's Court, Coroners' Courts (VA 2263), Licensing Courts (VA 2870), Courts of Mines, Industrial Appeals Courts and Insolvency Courts.
The Children's Courts were established in 1906 under the provisions of an Act to Establish and Regulate Children's Courts (No.2058), to hear and inquire into all charges against children and to direct trial and other appropriate action. Hearings may be held at any place where a Magistrates' Court is established. The provision of Children's Court Probation Services has been the responsibility of various Ministers:
Attorney General (VRG 19) until 1960
Chief Secretary (VRG 26) 1960-1971
Minister for Community Welfare Services (VRG 60) 1971-1985
Minister for Community Services (VRG 80) 1985-ct.
Children's Courts records are attributed to groupings of courts by geographical location (see Location of Records).
The first coroners were appointed by Superintendent La Trobe in November 1840. Prior to this, the function was handled by the local Police Magistrates, who merely accepted depositions from witnesses to sudden or suspicious deaths. Investigations into the causes of fire only date from 1858 and an Act for preventing the careless use of Fire 21 Vic., No.55.
The work of coroners was controlled by a mixture of British and Colonial legislation until the Coroners Act 1865 (No.253). This Act and subsequent legislation provided for the Governor-in-Council to appoint as many coroners and deputy coroners as appropriate. All Police (later Stipendiary) Magistrates were appointed as coroners although at times persons such as police officers, doctors and barristers were also eligible for appointment. Coronial work thus came to be based at local Courts of Petty Sessions, with the coroners' activities being confined to the area covered by their jurisdiction. Inquests were usually conducted at the relevant court although, especially in the nineteenth century, they were also held in places such as police stations, lunatic asylums and hotels.
The purpose of coronial investigations was to determine factors regarding certain deaths such as:
the identity of the deceased
the circumstances surrounding the death
the medical cause of death
the identity of any persons contributing to the cause of death
the collection of any other information necessary to register a death.
Despite the regional nature of coronial activity, there was no central co-ordination or regulation of functions. Although it was commonly referred to as the Coroner's Court from about 1952 (having also been previously known as the City Morgue), the Melbourne Coroner's Court merely had jurisdiction for the city and metropolitan area.
Following two reviews of coronial services in the 1970's and the proclamation of the Coroners Act 1985 (No.10257), the State Coroner's Office (VA 2807) was established. Under the provisions of the Act, the State Coroner is responsible for the efficient administration and operation of the state's coronial system. Stipendiary magistrates are appointed as coroners by the Governor-in-Council and barristers and solicitors may be so appointed. Subject to the direction of the State Coroner, coroners are responsible for the investigation of all reportable deaths as defined by the Act and may initiate an investigation into certain fires.
From 1856 until 1986, inquest depositions were forwarded to the Office of the Registrar General once it had been ascertained that they were not required for the administration of justice. (See VA 2889 Registrar General's Department 1853-1873 and VA 862 Office of the Registrar General and the Office of Titles, 1873-ct.) In 1988 the State Coroner's Office (VA 2807) became responsible for all coronial records.
Courts of Mines
For each specified Mining District a Court of Mines was established with original jurisdiction to hear and determine cases relating to mining disputes and the granting, refusal or disqualification of mining licences. In addition, Courts of Mines heard appeals against decisions made by mining wardens. For the period 1865 to 1883 appeals from the Courts of Mines were heard by the Court of the Chief Judge of Courts of Mines. By 1883 this appeal jurisdiction had been assumed by the Supreme Court. In 1969 Mining Courts were abolished and their jurisdiction transferred to Magistrates' Courts and the County Court (see also VRG 25 Mining Districts).
By 1844 a Chief Commissioner of Insolvent Estates had been appointed in the Supreme Court of N.S.W., for the District of Port Phillip (VA 914).
Until 1859, when the offices were separated, the Chief Commissioner of Insolvent Estates also held the position of Master in Equity (VA 2624).
In 1856 a Commissioner of Insolvent Estates was appointed for the Geelong Circuit District. A Commission for Insolvent Estates had been established in the Portland district prior to this.
The Commissioners of Insolvent Estates appear to have been administrative officers of the Supreme Court. The Insolvency Statute 1865 (No.273) consolidated the law relating to the administration of insolvency proceedings. The Court of Insolvency continued to consist of a Chief Commissioner for Insolvent Estates and Commissioners for Insolvent Estates resident in the country areas. The Commissioners were to aid and assist in the carrying out of the provisions of the Act and for that purpose to do and execute all such matters under rule of the Supreme Court.
In 1870 under the provisions of the Insolvency Statute (No.379) the offices of Chief Commissioner and Commissioners of Insolvent Estates were abolished and these officials were deemed at the commencement of this Act to have become judges of the Court of Insolvency.
However, all the judges of County Courts in Victoria, except the judge of the County Court at Melbourne were also to be judges of the Court of Insolvency. Court of Insolvency districts were to be assigned by the Governor-in-Council and notice of the sittings of the Court to be placed in the Government Gazettes.
A Bankruptcy Act passed by the Commonwealth Parliament in October 1924 and amended in 1927 was brought into operation on 1 August 1928. It superseded the Bankruptcy and Insolvency Acts of the States. A Federal Court of Bankruptcy was established and directly exercised its jurisdiction in Victoria from 1928.
A person was considered insolvent when he/she was unable to pay his/her debts in full. Formerly bankruptcy law had related only to traders or those engaged in commercial activities. As is shown by the titles of early insolvency acts, this legislation was effected as a means of giving relief to insolvent persons and subsequently imprisonment for debt was abolished.
Very simply, a debtor would petition to be declared insolvent by the court and as such to be discharged of all debts. The court would administer the estate and effects of the insolvent and preside at the meetings of creditors.
Further research is required to fully document the proceedings and records of this function.
Location of Insolvency Records
For insolvency records from the Melbourne metropolitan area researchers should look at List of Holdings 2nd edition 1985, section 2.151.0.
Liquor Licensing Courts
Licences for the sale and supply of liquor were from the time of first permanent settlement administered by justices of the peace. By 1885 for every specified licensing district a Licensing Court (VA 2870) of three stipendiary magistrates had jurisdiction to hear and determine the granting or refusing of licences to sell or dispose of liquor; the granting or refusing of a renewal or transfer of a licence and the disqualification and inspection of licensed premises and persons. The Licensing Courts also had responsibility for the containment and reduction of licences and the administration of compensation. Administratively the courts were supported by the clerks of Petty Sessions.
In 1907 the function of licence reduction and compensation became the responsibility of the Chief Secretary (see VRG 26).
In 1917 the Licensing Courts for each district were abolished and a centrally administered Licensing Court of Victoria (VA 2955) was established and assumed responsibility for the above functions. It was succeeded in 1954 by the Victorian Licensing Court (VA 2905). Licensing districts were maintained and the Court operated on a circuit basis in courts of Petty Sessions.
In 1968 the system of Licensing Magistrates and Licensing Courts was abolished and all licensing functions were assumed by the Liquor Control Commission (VA 1110) and became the responsibility of the Chief Secretary (VRG 26).
History of Liquor Licensing Courts in Victoria
From the time of first permanent settlement in Victoria in 1836 the licensing of public houses for the sale and supply of liquor was deemed to be a judicial proceeding.
The Act 3 Wm IV, No.8 (June 1833) provided for a General Meeting of the justices acting in and for each district in the Colony, to be held in June each year and to be called the General Annual Licensing Meeting for the special purpose of considering all applications for licences for public houses. Three justices at least were required to be present. The justices were empowered to grant certificates authorising the issue of a licence. These certificates and the fee were then required to be lodged with the office of the Collector of Internal Revenue (Colonial Treasurer, New South Wales) who upon receipt would issue and register the licences.
The Act also established Special General Sessions of the justices for the transferring of licences. All offences under the Act were to be heard at Courts of Quarter Sessions. The Act 8 Wm IV, No.8 (1837) provided for the application of the 1833 legislation in the newly established Port Phillip District and empowered an officer, to be appointed by the Governor-in-Council, to issue publican's licences in lieu of the Colonial Treasurer in Sydney. The first officer authorised to do so was the Police Magistrate, Port Phillip District (see VA 472 and VRG 7), William Lonsdale in September 1837. However by 1839 the Sub-Treasurer had been appointed to issue licences for the Port Phillip District.
The Act regulating the sale and supply of liquor in the Port Phillip District at the time of separation in 1851 was 13 Vic., No.29 (1849). This Act did not substantially alter the liquor licensing law, continuing the system of General Annual Licensing Meetings within each district for the hearing of applications for licences, but allowing for a bench of two justices of the peace when a third was unavailable.
The Act provided for three types of licences, a publican's general licence, a packet licence (ship) and a confectioner's licence. The latter licence was confined to the sale of spruce beer and ginger beer. An 1854 Act (17 Vic., No.24) provided for the registration of spirit merchants. Act 25 Vic., No.147 of 1862 introduced a requirement for distiller's licences, wine grower's and brewer's licences.
In 1864, all then existing statutes were repealed and replaced by the Wines, Beer and Spirits Sale Act 1864 (27 Vic., No.227) which first introduced the single bottle or grocer's licence to be held only by a spirit merchant. This Act abolished the General Annual Licensing Meetings and provided for the granting and transferring of licences to be a judicial proceeding within any sitting of the Court of Petty Sessions within a district.
Under the provisions of the Wines, Beers and Spirits Sale Act, 34 Vic., No.390 (1870), the power to grant licences to be issued under the Act within each district was restricted to a Licensing Bench composed of a stipendiary magistrate and two other justices of the peace nominated by the majority of, and from amongst the justices resident within each licensing district. All applications for the granting, renewal, transfer or forfeiture of licences were to be heard by these appointed magistrates.
Quarterly licensing meetings were to be held at each of the Courts of Petty Sessions within a licensing district each year. Magistrates were bound to give a month's notice of these licensing meetings in the Government Gazette. The Act also allowed an objection by the municipal body to the granting of a licence in a district where there were already a sufficient number of licensed premises. The Act provided that on such an objection a poll should be taken in the neighbourhood, introducing for the first time the concept of the reduction of liquor licences.
Licensing Courts were also supported, from 1876, by Inspectors of Liquor whose job it was to maintain the standard of liquors sold to the public and to ensure that it was unadulterated and fit for consumption. The position was apparently joined with that of Inspectors of Distilleries (Licensed Premises) and operated within the Trade and Customs area (VRG 22) as part of the excise and customs duty function. In 1900-1901 when the customs function passed to the Commonwealth (VRG 87) the Inspectors of Liquor were placed under the authority of the Minister of Public Health (VRG 39). The function has apparently remained with the Health portfolio and although there have been no Inspectors of Liquor as such since about 1978, the duties may possibly still be undertaken as part of the general health investigations area.
Establishment of Licensing Courts (VA 2870) in 1885
The Licensing Act 1885 (40 Vic., No.857) replaced the previous licensing benches with a separate Licensing Court (VA 2870) for each licensing district. Each Licensing Court was constituted by three police magistrates, except in the districts of Melbourne, Geelong and Sandhurst (Bendigo) where the chairman of the Court was to be a County Court Judge. The Act also subjected licensed premises to the control and supervision of a Licensing Inspector, who was empowered both to inspect premises and to give such reports, and make such orders as would ensure the maintenance of standards. Licensing inspectors were appointed by the Governor-in-Council from the police force.
The Licensing Courts (VA 2870) would send duplicates of all certificates for licences granted to the Treasurer (VRG 23), who continued to register and issue all liquor licences. All fees, fines, penalties and forfeitures were to be paid to the Treasurer to be placed in a Trust Fund called the "Licensing Act 1885 Fund" which was to be applied to the carrying out of the provisions of the Act.
The Act further restricted the granting of licences by enacting that no licences should be granted where the statutory number had been exceeded. A reduction in the number of licences in those districts where the statutory number had been exceeded could be effected by a local option poll. Compensation was to be paid from the Licensing Fund to the owners and licensees of closed hotels.
Licensing administration was supported by the Clerks of Petty Sessions in the various areas and the court facilities were used for sittings of the Licensing Courts. However some of the larger courts may have used a separate registrar.
The outstanding provisions of the Licensing Act 1906 (No.2068) dealt with the reduction of licences and the establishment of a special compensation fund and provided for the registration of clubs.
The function of overseeing the systematic and orderly reduction of hotel licences in Victoria, previously carried on by the Licensing Courts (VA 2870) was entrusted to a Board of three members, the Licences Reduction Board (VA 2906). Pursuant to its main function of reducing licences the Board was required to assess the maximum compensation allowable for the loss of a licence, and determine the actual compensation payable to the owner and licensee. It is most probable that the Board reported to the Chief Secretary (VRG 26).
Establishment of the Licen