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The New Zealand Journal, Saturday, November 07 (1840)


Administration of Justice in New Zealand and Port Philip.

Port Philip, although recognized as a colony for some two or three years, has had the misfortune to be treated as a dependency of New South Wales. As regards the administration of justice, therefore, Port Philip has hitherto been much in the situation of New Zealand—that is, in a state of anarchy. The expediency of establishing regular Courts of Justice, however, has been forced upon the notice of Sir George Gipps, and the Chief Justice has been called upon to report upon the best mode of effecting the object for all the dependencies. The following is his plan:—

Port Philip.

I proceed now to the consideration of the establishments necessary for the administration of justice in Port Philip as a separate head of observation.
For the trial of capital offences and the determination of important civil causes, I conceive that, for some considerable time, it will be quite sufficient that a Circuit Court should be holden at Melbourne for this dependency, thrice in two years, or one in eight months, by one of the judges of the Supreme Court. In order to provide for the other wants of the community in that important settlement, I would confer upon the Court of Quarter Sessions already established there jurisdiction for the trial of all crimes and misdemeanors not capital, although of a nature not ordinarily cognizable at Quarter Sessions, such as forgery and perjury.
The system of grand and petit juries should be established, and the sessions should have the power of stating special cases for the opinion of the Supreme Court at Sydney, wherein questions of peculiar importance and difficulty might arise. The Court should have the power of making rules of practice for the conduct and dispatch of business, subject to disallowance by the Supreme Court. The Chairman of the Quarter Sessions should unite in his person the office of Commissioner of the Court of Requests, having cognizance of all causes where the amount of debt or damages sought to be recovered does not exceed £50, excepting cases where the title to land should actually and bonâ fide come in question. In the administration of this office he should be assisted by two assessors, and in case of difference of opinion, the voices of the majority should determine the verdict, which should be entered as a verdict of the whole Court.
The Court should be holden as often as occasion might require, and power given to the commissioner to establish a scale of fees, subject to the approval of the Governor. The commissioner should have power to grant new trials in cases where the damages recovered exceed the amount of £10; and in such last-mentioned cases he should have the power of reserving any question of law at the instance of any dissatisfied suitor by stating a special case, setting forth the facts in a compendious manner for the decision of the Court, and transmitting the same for the determination of the Supreme Court; the party praying such case to be stated to undertake to pay the cost of the reference, if the point or points raised should be determined against him or her by the Supreme Court. The commissioner should have the power of making rules and regulations for the conduct and dispatch and business in his Court, subject to disallowance by the Supreme Court.
By reason of the distance of the settlement at Port Philip from Sydney, which would practically shut the inhabitants out of the benefits of the jurisdiction of the Supreme Court in certain cases, I would authorise the judges to appoint the Commissioner of the Court of Requests, or such other person as they might deem fit, from time to time, as occasion might require, to exercise the power of issuing process in the Supreme Court, for arresting a defendant under the Imprisonment for Debt Act, and subject to the provisions thereof; the power of hearing and determining insolvencies, and doing all other acts which might be done by a judge under any insolvent act, the power of taking deposi-
tions and examinations in all causes at common law or equity, or in the ecclesiastical jurisdiction depending in the Supreme Court, the power of issuing injunctions to stay waste, the power of issuing the writ ne exeat colonia, and the power of granting administration.
An office for the registration of deeds and other instruments affecting land should also be established, and, for the present, the office of Clerk of the Peace might be resorted to for this purpose, and he should be deemed and taken to be the registrar for the dependency of Port Philip.
The duties of the Clerk of the Peace, Registrar of Deeds, Registrar of the Court of Request, and clerk in insolvency cases, might be united in one person, with a clerk or assistant if necessary, with whom he might provide himself if he had a sufficiently liberal salary allowed him.

New Zealand.

Having thus offered such suggestions, as, in my humble judgment, appear worthy of your Excellency's consideration, touching the changes it would be desirable to effect for the administration of justice in New South Wales, I now proceed to submit the plan which seems to me best adapted for the administration of justice in the islands of New Zealand, whenever the Local Legislature shall be called upon to make provision for that object.
First, I would recommend the institution of a Court of civil and criminal jurisdiction, to be held in some locality most convenient, in one of the two islands of which that remote territory consists. This should be called the "Recorder's Court," to be held by one judge, with necessary ministerial officers. It should have the same jurisdiction as is exercised by the Supreme Court at Sydney over all causes arising at New Zealand. Until this new dependency becomes of sufficient importance to require more numerous tribunals, I would impart to the Recorder's Court all the jurisdiction now exercised by Courts of Quarter Sessions and Courts of Requests in New South Wales, with this distinction as to the latter, that I would recommend the establishment of a rule, that in all cases under £10 the proceedings in the Court should be summary and cheap, so as to give the suitors all the benefit of the usual mode of proceeding in the Court of Requests, without exposing the Government to the expense and embarrassment of separate judicatures. In all causes, both at law and in equity, where the matter in issue exceeded £200 in value, I would give an appellate jurisdiction to the Supreme Court of New South Wales, and in any case not within his summary jurisdiction, I would give the Recorder a discretion in reserving or stating for the opinion of the Supreme Court, special cases where he entertains doubt or difficulty. Secondly, I would recommend the appointment of a sufficient number of magistrates to exercise the ordinary jurisdiction vested in Courts of Petty Sessions in New South Wales in their ministerial and judicial capacities.
These provisions, I submit, would be sufficient for the wants of an infant settlement; the details in carrying out the plan must depend upon local circumstances and the result of actual experience.

Fort Essington.

The settlement is at present so purely instrumental, and from its remoteness so little is known of its actual wants, that any recommendation respecting it must necessarily be speculative. For all ordinary purposes, a police magistrate, aided by two other magistrates, or two or more substantial and respectable inhabitants as assessors, would be sufficient to administer justice in civil or criminal causes of trifling importance. Cases of graver import might be removed to Sydney or Port Philip, to be disposed of by the Supreme Court, or the judge going circuit to that dependency. In the event of the settlement requiring more special provision, it might be practicable, from time to time, to detach a judge of the Supreme Court for the trial of civil or criminal causes of magnitude.

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