By Dr John Emerson
Law School
University of Adelaide

“Why are you wearing a wig?”*

Changes in Court Etiquettes in South Australia

It is wigs, gowns and jabots that first strike the visitor to the District or Supreme Court. She or he might assume that their use is part of a continual tradition stretching back across the centuries to England.

This is not the case in South Australia, although the current tradition has remained unchanged since just after Samuel Way became Chief Justice in 1876, not long before the foundation of the Law Society.

But South Australia’s first Chief Justice, Charles Cooper, wanted nothing to do with wigs. Most of the members of the early South Australian bar had been trained as attorneys or solicitors in Great Britain. They therefore had no wigs as only barristers in Britain wore them in court, and there was nowhere to buy them in Australia. Charles Cooper himself wore a black gown and jabot, the same as the members of the bar.

Cooper was the only judge until 1850. In May 1846 two English barristers arrived for a case before him, wigged. The local paper reported “though it certainly reminds us of the Courts at home, being dispensed with by his Honour and the Colonial Bar it is hardly in the best taste to wear.”

Cooper thought they were making themselves ridiculous, and told them so:

If anyone is justified in wearing a wig, it is myself; for in summer I am tormented with the flies settling on my bare head. But I fear that, if I were to adopt it, I should be still more fatigued than I am already by the long sittings which I frequently have to endure.

Cooper later made – in 1850 – a rule of court that “the costume of the gentlemen attending the Court should be, as heretofore, a black coat and waistcoat, a white neckcloth and bands.”

Dr George Crawford arrived later that same year as the state’s second judge, and in August 1850 he appeared at the criminal sessions in his wig. According to Ralph Hague, this was the first time a judge wore a wig in South Australia. Chief Justice Cooper must have finally yielded, for in the full court sittings later that month he also wore one, and they have been worn since.

Yet no English law has ever required for wigs to be worn in court either by judges or counsel.

The most recent official instructions for courtroom attire in England were the Judicial Rules of 1635, issued before the wig was introduced into England in 1660 by Charles II, returning from exile in Louis XIV’s France. These instructions have apparently never been updated. It was only the fashion of wig-wearing by gentlemen that took off in the 1680s that saw wigs being worn in court. But it was only ever fashion, never a formal requirement. When wigs went out of fashion in the beginning of the nineteenth century, the courts kept them.

South Australian judges, now wigged, continued to wear plain black gowns for all cases, criminal and civil. Samuel Way would change this. During his trip to England in 1869-1870 he became totally enamoured with London’s legal institutions and traditions. When he was appointed silk in 1871, he ordered a silk gown, waistcoat, knee-breeches, black stockings and a pair of shoes with silver buckles, all from London, telling the tailor: “I could get them in Melbourne, but prefer your work to Colonial”.

When Way was appointed Chief Justice in 1876 he had the power to model the Supreme Court on the High Court of Judicature in England. In July 1877, the Register reported:

The forms of the judicial tribunals of the mother-country are being gradually introduced into the Courts of this Colony. The latest innovation on previous practice is the wearing of the time-honoured distinctive costumes by some of the Judges. The Chief Justice, in presiding at the libel action in the Supreme Court, appeared in the scarlet robes trimmed with ermine that had been for centuries the dress worn by judges when presiding in Criminal Sessions.

The different robes for different sittings were introduced and remain in force, and 128 years later there is no sign of change. But times are changing for the wig. After 155 years it will no longer be worn in civil cases from the start of next year.

In the mid-1950s a 120-year-old tradition came to an end. Until then, the Supreme Court’s work during each year had been four terms, split by two vacation periods. Each term went for 29 days, including Sundays. The first term of each year began on the last Monday in March, the second term began on the last Monday of June, the third on the last Monday of September and the fourth on the last Monday of November. Court also sat on Saturday mornings until around this time.

The two vacation periods when there were no sittings at all were quite lengthy. The Christmas vacation started on 25 December and ended on 25 February. The winter vacation began each year on the nearest Monday to 25 July and went for three weeks. For a quarter of each year there were no sittings. Nevertheless, a vacation judge was always on standby to hear urgent matters in chambers. The terms system was quietly abandoned around 1956, no doubt a response to the courts’ ever increasing workload.

Judge’s associates have always been appointed for a year and not more than two or three, and were usually recent graduates. But there used to be exceptions, unlike now. Frederick Richards, for example, was associate to Sir Samuel Way for seven years – from 1901 until 1908. He was also much older – being 39 years old when he left. His next job after Way was Assistant Crown Solicitor, and he was eventually appointed to the Supreme Court in 1927. Cedric Isaachsen remembers a judge’s associate called “Sailor” Webb, who spent several years with Sir Mellis Napier in the 1930s and 1940s, and who like Richards, was much older than most associates.

The biggest change in the history of judge’s associates was the end of their lucrative “perquisites” in 1932. Up until then, they charged one shilling six pence for each sworn affidavit to be filed with records of a case and their fees for copies of judgments allowed for a profit after subtracting the typist’s costs. The catalyst for ending perquisites was a Master of the Supreme Court embezzling money around 1930, which triggered a complete restructuring of the court’s financial arrangements.

Supreme Court judges were always known as “Mr Justice” until Australia’s first female judicial appointment, Roma Mitchell on 23 September 1965. Chief Justice Sir Mellis Napier was forced to consider a new etiquette:

Her appointment seems to have taken him by surprise. His first reaction was that all members of the court must be addressed to and referred to without distinction and she must therefore be known as ‘Mr Justice Mitchell’. The absurdity of this was soon pointed out to him and he thereupon directed that all member of the court be known as ‘Justice’ without a prefix. This eminently sensible direction seems to have been received with ill-grace by at least some of the male members of the court. The direction remained in force, however, until Sir Mellis retired, whereupon the male members of the court reverted to ‘Mr Justice’, the female member remaining as ‘Justice’.i

This remained the case until Len King became Chief Justice in 1978 and again removed the ’Mr’ so that there was no distinction based on gender. This remains the case to this day, and is certainly less cumbersome than the Canadian system of “Mr Justice” and “Madam Justice”.

© John Emerson 2004

*First published in the Law Society Bulletin of South Australia

November 2004

i Len King. “The Judicial Career of Dame Roma Mitchell”. Dame Roma: Glimpses of a Glorious Life. Adelaide: Axiom/John Bray Law Chapter of the Alumni Association of the University of Adelaide, 2001, p. 66.

 
Image of Court wig and books