CO885-(10-11) — Page 86

3405.

PUBLIC RECORD OFFICE

Reference :-

PEE C.O. 885

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No. 62.

(SOUTH AUSTRALIA.)

LAW OFFICERS to COLONIAL OFFICE.

MY LORD DUKE,

Lincoln's Inn, April 15, 1861. We were honoured with your Grace's commands, signified in Sir Frederic Rogers' letter of the 16th March last, in which he stated that be was directed by your Grace to transmit to us a copy of a Despatch from Sir R. MacDonnell, drawing your attention to certain proceedings before the Supreme Court of South Australia, from which it appears that the majority of the judges were of opinion that there was no Court of Appeal in existence in the Colony.

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"to

Sir Frederic Rogers was pleased to annex a copy of the Act, No. 2 of 1856, establish a constitution in South Australia," and of No. 31 of the same year, "to consolidate the several Ordinances relating to the establishment of the Supreme "Court of the Province," and requesting that we would take those documents into our consideration, and favour your Grace with our opinion whether the Executive Council, which was established under the former of those Acts, is competent and entitled to act as a Court of Appeal under the Act No. 31.

In obedience to your Grace's commands we have the honour to

Report

That we have taken into consideration all the documents transmitted to us. We observe with regret the opinion expressed by the Supreme Court of South Australia in the case of Payne v. Dench as to the local Court of Appeal. We have read with surprise the dicta attributed to some of the judges of the court in the report of that case.

In our judgment that opinion is altogether erroneous. The legal continuance, jurisdiction, and authority of the local Court of Appeal, as established by the 18th section of the Colonial Act (assented to on 19th June 1856), are not at all affected by the Constitution Act or any thing done under it.

There cannot be any reasonable doubt as to that court being still in existence with undiminished authority.

His Grace the Duke of Newcastle, K.G.

&c.

&c.

&c.

We have, &c. (Signed) RICHARD BETHELL.

WILLIAM ATHERTON.

16278-610.

95,-9/86.

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