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43381

PUBLIC RECORD OFFICE

Reference :-

C.O.885

No. 52.

(GENERAL: NEW SOUTH WALES.)

LAW OFFICERS to COLONIAL OFFICE.

[Question as to the Method of Altering the Precedence of the Chief Justice of New South Wales.]

MY LORD,

Royal Courts of Justice,

November 24, 1906. · We were honoured by your Lordship's commands signified to us by Mr. Ber- tram Cox, in his letter of the 4th August last, stating that he was directed by your Lordship to inform us that it was considered desirable to alter the precedence of the Chief Justice of New South Wales on the occurrence of the next vacancy in that office, and that a question had arisen as to the manner in which the change should be made.

That the present precedence of the Chief Justice was regulated by the Charter of the 13th October, 1823, in the following terms: "And We do hereby give and grant to Our said Chief Justice rank and precedence above and before all Our sub- jects whomsoever within the Colony of New South Wales aforesaid, and the islands, territories, and places dependent thereupon, excepting the Governor or Acting Governor for the time being of the said Colony, and excepting all such persons as by law and usage take place in England before Our Chief Justice of Our Court of King's Bench,'

That the Charter purported to be in pursuance of the Act of Parliament of 1823, 4 Geo. IV., c. 96, but that Section 1 of that Act merely provided that it should be "lawful" for His Majesty to establish and erect Courts of Judicature, &c. That nothing was said about precedence and that obviously it was lawful for His Majesty to grant precedence to the Chief Justice in virtue of his own preroga- tive powers. That the grant of precedence therefore could not, it would seem, be described with accuracy as in pursuance of the Act.

That Section 1 of the Act of 1828, 9 Geo. IV., cap. 83, which superseded the Act of 1823, provided for the issue of fresh Charters, but that Section 2 enacted that until the new Charters were issued, the Supreme Court of New South Wales and Van Dieman's Land "shall retain the respective jurisdictions and powers in such Courts vested by His Majesty's said last-mentioned Letters Patent as fully and effectually as if such Courts, respectively, had been instituted in virtue and pursuance of this Act and the said Letters Patent, and all Orders, Acts, matters, and things made and done in pursuance of the powers and authorities vested in His Majesty by the said Act (of 1823) shall be of the same force and effect as if the same had respectively been issued, madc, and performed by virtue and in pur- suance of this Act."

That the precedence of the Chief Justice thus apparently continued to rest on the prerogative of His Majesty. That the original duration of the Act of 1828 (see Section 41) was limited, but that it was renewed by various Acts until by Section 53 of the Act 5 and 6 Vict., c. 76, it was made permanent (with the exception of so much as related to the Council of New South Wales) and that it remained in force until by the New South Wales Constitution Act of 1855, as confirmed by the Imperial Act 18 and 19 Vict., c. 54, so much and such parts of it as were repugnant to the Constitution Act were repealed.

That the Constitution Act made by Section 42 the following provisions:-

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All the Courts of Civil and Criminal Jurisdiction within the said Colony and all Charters, legal commission powers and authorities, and all officers, judicial, alministrative, or Ministerial, within the said Colony, respectively, except in so far as the same may be abolished, altered or varied by, or may be inconsistent with, the provisions of this Act, or shall be abolished, altered, and varied by any Act or Acts of the Legislature of the Colony, or other competent authority, shall con- tinue to subsist in the same form and with the same effect as if this Act had not been made."

That the Charter expressly reserved to the Crown the right to repeal it, either wholly or in part, and to make such further or other provisions as might seem fit. That it would appear to be open to question whether the Crown possessed this general right, in view of the fact that it was not conferred by the Act in pursuance

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