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Produced and published by the School of Historical & Philosophical Studies, The University of Melbourne
Published July 2008
Published July 2008
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Courts of law consist of a person or group of persons (the judiciary) with authority to hear and determine disputes in accordance with rules of law. Individuals, corporations, and even the State of Victoria and the Commonwealth of Australia, may choose or be compelled to submit to the jurisdiction of a court. Litigants are usually assisted by members of the legal profession. Other means of dispute resolution (tribunals, arbitrators, mediators) are available in some circumstances.
Melbourne shares with the rest of Victoria an array of courts derived, like the law itself and other aspects of the legal system, from that developed originally in England. Those established before Separation were courts of the colony of New South Wales.
The earliest court at Melbourne was held by Captain William Lonsdale, who was appointed in September 1836 to have general superintendence of the settlement at Port Phillip and to be police magistrate for the district. With the growth of settlement, E.J. Brewster was appointed in March 1839 as chairman of quarter sessions, sitting with a jury in some cases, to deal with crimes not punishable by death; and in October 1839 as commissioner of the Court of Requests, to deal with civil claims for debt or damages amounting to £10 or less. More serious matters, criminal or civil, could only be dealt with in the Supreme Court of New South Wales at Sydney, until in April 1841 Mr Justice Willis began to sit at Melbourne as resident judge of that court at Port Phillip.
After Separation, further provision was made by the new Victorian legislature. The Supreme Court of Victoria was established in January 1852, with a jurisdiction equivalent to that of the superior courts in England. William `à Beckett became chief justice and Redmond Barry the other judge. In September of the same year, the Court of Requests and courts acting similarly elsewhere in Victoria were replaced by County Courts, each for a different part of the colony, with jurisdiction in civil cases where no more than £50 was claimed by way of debt or damages. Their judges were also appointed chairmen of General Sessions, a criminal court replacing Quarter Sessions in which they usually sat with a jury. R.W. Pohlman was the first to be appointed to these positions for Melbourne and the surrounding district.
The Supreme and County Courts continue in existence, though there is now only one County Court. The jurisdiction of both extends to the whole State. The criminal jurisdiction of the old Courts of General Sessions was vested in the County Court in 1968 and now includes all crimes, other than murder, attempts to murder and a very few others. Subject to that limitation, almost all major criminal cases in Victoria are now heard before a judge and a jury of 12 persons in the County Court, and criminal cases form the bulk of that court's business. In 2004, its civil jurisdiction extended to personal injury cases without limitation as to amount and to other cases where not more than $200 000 is involved; about a third of these cases are heard by a judge and a jury of six, the rest by a judge alone. There were then 58 judges of the Court, most of whom on any one day were sitting at Melbourne.
Generally speaking, the jurisdiction of the Supreme Court is still unlimited, and notwithstanding the enlargement of the County Court's jurisdiction, it retains a very considerable business. Criminal cases are heard by judge and jury, civil cases, which predominate, mostly by judge alone. In 2004 there were 32 judges, including the chief justice and 10 judges of the Court of Appeal. The Court of Appeal sits, usually in groups of three judges, to hear appeals from decisions of single judges of the Court and from decisions of the County Court.
From 1843, the Supreme Court occupied premises at the corner of Russell and La Trobe streets, next to the Old Melbourne Gaol and with the County Court nearby. In February 1884, new law courts were opened on the south-east corner of William and Lonsdale streets, to house the Supreme Court, the County Court and other courts. In 1969, the County Court moved to the south-west corner of those streets and in 2002 to the north-east corner.
The Federation of the Australian colonies in 1901 affected the system of courts in Victoria in four important ways. First, the Constitution of the Commonwealth made provision for a new court, the High Court of Australia, which sat for the first time on 6 October 1903 at the Law Courts in William Street, Melbourne, and later occupied premises next door in Little Bourke Street. Litigants were entitled to appeal from the Supreme Court to the High Court, which in consequence has had a profound influence on the development of the law and the administration of justice in Victoria. Before the opening of that court's new building in Canberra on 26 May 1980, it regularly sat for several months of the year in Melbourne but no longer does so at all, except briefly on applications for leave to appeal (which is now a prerequisite).
Before Federation, it was possible to appeal from the Supreme Court to the Judicial Committee of the Privy Council in London. For many years afterwards, unless federal jurisdiction was involved, litigants could appeal either to the High Court or to the Privy Council; and if they chose the High Court, there was normally a right of further appeal from its decision to the Privy Council. Such appeals, however, gradually fell away and were abolished in 1986 as being inconsistent with Australian sovereignty and independence.
Second, cases began arising in the State courts from 1901 onward, involving questions under the Constitution itself and, in much greater and increasing numbers, under legislation of the Commonwealth Parliament and its subordinate authorities.
Third, inherent jurisdiction to deal with such cases was taken away from State courts by Commonwealth legislation in 1903 and federal jurisdiction to deal with them was vested in federal courts instead, thus enabling the Commonwealth to control the manner of its exercise. The areas covered include some which had not been available to the Parliament of Victoria (for example, matters relating to Commonwealth employees); others in which Commonwealth legislation has gradually come to supplant that of the States (for example, postal services in 1901, bankruptcy in 1924, divorce in 1959 and marriage in 1961); and yet others which had not been invented in 1901 or which at any rate the States had never entered (for example, broadcasting, civil aviation and trade practices). However, some areas which at one time generated a great deal of business for the Supreme Court, for example income tax appeals and divorce, are now only dealt with in federal courts.
Fourth, three other courts created by the Commonwealth Parliament operate in Victoria, as elsewhere in the Commonwealth, and regularly sit at Melbourne: the Family Court of Australia, established in 1975 to deal with marriage, divorce and related matters; the Federal Court of Australia, established in 1976 with jurisdiction (in some areas an exclusive one) in other matters arising under federal legislation; and the Federal Magistrates Court, established in 1999 with a wide jurisdiction in such matters, but at a lower level. All three courts occupy premises on the south-west corner of William and La Trobe streets.
In 2004, 12 of the 53 judges of the Family Court and 12 of the 44 judges of the Federal Court were based in Melbourne. Both courts have a system of internal appeal to a Full Court, usually comprising three judges, with a further appeal available in some circumstances to the High Court. Six of the 19 federal magistrates are based in Melbourne; an appeal may be taken from their decisions to the Federal Court.
The Victorian courts with which Melburnians are most likely to be familiar are the Magistrates' Courts, successors since 1989 to a series of courts beginning with Lonsdale's court of 1836 and continuing as Police Courts or Courts of Petty Sessions and from 1971 as Magistrates' Courts. They consisted of justices of the peace or a police magistrate (from 1948 called a stipendiary magistrate) not qualified in law; but later often consisted of a stipendiary magistrate who was. Since 1989, only legally qualified persons may be appointed to the magistracy. The magistrates, as they are now called, deal with summary offences and certain more serious offences triable summarily, and conduct committal proceedings to decide whether an accused person should be sent for trial in a higher court. They have a civil jurisdiction where not more than $40 000 is claimed. An appeal may be taken in criminal cases to the County Court, by way of rehearing, and in all cases to the Supreme Court, on a question of law.
About three-quarters of Victoria's 110 magistrates usually sit in Melbourne or its suburbs, including those who sit in the Children's Court, dealing with juvenile crime and welfare matters, and the coroner and deputy coroners who conduct investigations and inquests into deaths and fires. The Melbourne Magistrates' Court and its predecessors operated on the old Supreme Court site, at the corner of Russell and La Trobe streets, from the early 1890s until moving in 1994 to a new building in the legal precinct, on the north-west corner of William and Lonsdale streets.
Specialised Victorian courts which flourished at one time but no longer exist include: the Courts of Mines, whose jurisdiction has passed to the County Court; the Court of Insolvency, whose jurisdiction has passed, via the Federal Court of Bankruptcy (now itself abolished), to the Federal Court; and the Licensing Court, now replaced by the Director of Liquor Licensing.