CO885-(15-16) — Page 539

30234

No 105

A.

PUBLIC RECORD OFFICE

C.O.885

Reference :-

1

(NEW SOUTH WALES.)

[Precedence of the Chief Justice.]

CASE SUBMITTED TO THE LORD CHANCELLOR.

In the opinion both of His Majesty's Government and the Government of New South Wales it is desirable, on the occurrence of the impending vacancy in the office of Chief Justice of New South Wales, to alter the present anomalous pre- cedence attached to that office, under which the Chief Justice ranks above the Lieutenant-Governor and the Naval Commander-in-Chief; but the manner in which the change should be made has been the subject of correspondence with the New South Wales Government since the year 1882.

The present precedence of the Chief Justice is regulated by the third clause of the Charter of the 13th October, 1823, which runs in the following terms:-" And We do hereby give and grant to Our said Chief Justice rank and precedence above and before all Our subjects 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 except- ing all such persons as by law and usage take place in England before Our Chief Justice of Our Court of King's Bench."

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

In the twenty-fourth clause of the Charter there was a proviso that "nothing in these presents contained

shall extend or be construed to extend to prevent Us Our Heirs and Successors to repeal these presents or any part thereof

in as full and ample a manner as if these presents had not been made." 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 IV., Cap. 83, which superseded the Act of 1823, provided for the issue of fresh Charters, and Section 2 enacted that until new Charters were issued, the Supreme Courts of New South Wales and Van Dieman's Land "shall retain and exercise the several jurisdictions and powers in such Courts vested by His Majesty's said last-mentioned Letters Patent so far as the same may not be altered by this Act, 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 pur- surance of the powers and authorities vested in His Majesty in and by the said Act, passed in the Fourth year of the Reign of His present Majesty" (i.e., the Act of 1823) "shall be of the same force and effect as if the same had respectively been issued, made, done, and performed by virtue and in pursuance of this Act."

No fresh Charter was issued under the Act of 1828.

The original duration of the Act of 1828 (see Section 41) was limited, but 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 it remained in force until by the New South Wales Con- stitution 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.

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

"All the Courts of Civil and Criminal Jurisdiction within the said Colony, and all Charters, legal commissions, powers, and authorities, and all officers, judicial, administrative, 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 25 #231 12/08 D & 8 5 31569

16 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO