The province of South Australia, unlike the other Australian colonies, was planned according to the theory of colonization of Edward Gibbon Wakefield. Part of that planning entailed the setting up of a Supreme Court. In all the other colonies a Supreme Court was established later, in some cases many years later, than the founding of the colony.
So a judge was appointed to be Judge of the Supreme Court before the first party of immigrants set out on their long voyage to Kangaroo Island and thence to Holdfast Bay. He was Sir John Jeffcott who had previously been Chief Justice of Sierra Leone.
Unfortunately Jeffcott was impecunious and to save himself being arrested and imprisoned for debt as the law then allowed, he had to leave England stealthily and by a vessel bound for Van Diemen’s Land. He arrived at Hobart in January 1837 and stayed there for some months with the family of his fiancée. Ultimately he came to Adelaide in late April 1837 and the first sittings of the court - a criminal session - was held on May 13, 1837. The foreman of the jury was Colonel Light.
The court was set up by ordinance of 7 Will.IV c.5 on January 2, 1837 - five days after the founding of the colony, and was endowed with all the common law, equitable and probate jurisdiction of the courts at Westminster. This may seem a somewhat grandiose establishment for a colony of 546 people, but that was how the plan set it forth.
In July, Jeffcott went back to Hobart to consult with his brother judges there on some difficult questions of jurisdiction which had arisen and, of course, also to see his fiancée. He returned to Adelaide in October and sat sporadically until he was drowned at the mouth of the River Murray on December 12, due to the capsize of a boat in which he was a passenger.
His death was a loss to the infant colony which had split into two warring factions, because he was the only person who had the confidence of both factions.
An acting judge was appointed by the name of Henry Jickling - a quiet learned man who had no hope of quelling the factional squabbles. He did however do two things for the court: he settled its testamentary causes jurisdiction in a form some of which has endured until our own time, and he admitted the first practitioners of the court on 6th March 1838. They were Samuel Smart, George Milner Stephen and Henry Rodolph Wigley.
The jurisdiction in testamentary causes formed a large part of the court’s business in its early years. The then new simplified form of will which we use today came into existence by statute in England in 1837, with that statute being adopted in South Australia in 1842. Most of those who died on the voyage or after reaching this State died intestate. There was little or no storage space in the infant colony for the furniture and effects of the deceased person and usually no near relative able and competent to take a grant of letters of administration, so it was imperative that Jickling organise this section of the court’s work as speedily as possible, which he did very satisfactorily.
The new judge who took Jeffcott’s place was Charles Cooper, who arrived in Adelaide in March 1839. He was a capable man but a hypochondriac, and on occasion absented himself from the business of the court for months at a time. His complaints about his health caused the Governor, Sir Henry Young, to ask the Colonial Office in 1849 to appoint a second judge. His request was acceded to and Mr Justice Crawford was appointed. He arrived in July 1850 and was a very competent judge whose hard work soon cleared up the lagging court lists. He was the first judge to wear a wig and to require counsel appearing before him to do so. Strangely, after Cooper’s incessant complaints about his health, Crawford died of ill health after only two years in the colony while Cooper lived to be over 90.
Justice Crawford's successor was Benjamin Boothby. He has the distinction (if it be so) of being the only South Australian judge to be removed from office. He was a man who took offence easily and was rude both to his brother judges and to members of the bar appearing before him. He had strong views on the limited capacity of colonial parliaments which infuriated our early parliamentarians. He was nevertheless correct in his views on some of the issues he raised, which required the passing of two statutes by the Imperial Parliament to put right. However he persisted obdurately in his views after the passing of the statutes and was ultimately removed on 29 July 1867. He appealed to the Privy Council but died before the appeal was heard. That was just as well for the South Australian Parliament, because the members had gone ahead and appointed Mr Justice Wearing in his place, notwithstanding the pendency of the appeal and a somewhat cryptic note in Moore’s Privy Council reports suggests that the appeal might have been upheld had he lived. That would have meant the presence of four judges on the South Australian Bench at a time when there was scarcely sufficient work for three.
The third judge at the time of Boothby’s removal was Mr Justice Gwynne who was appointed in 1859. He had been appointed Clerk of the Court by Jeffcott in 1836, but Jeffcott did not have the power to appoint and Governor Hindmarsh refused to confirm the appointment. So Gwynne went into general practice very successfully in Adelaide until his appointment to the bench. Justice Gwynne presided over the first circuit sittings of the court at Robe and Mount Gambier in February 1862.
Chief Justice Cooper retired in 1861. The Legislative Council voted him a lump sum of £10,000 as a pension which Cooper was prepared to accept. Some members of the House of Assembly thought they were being smart in amending the vote to a pension of £1,000 per annum. As the lower house has the power of the purse, their views prevailed. In fact Cooper lived for nearly 26 years after his retirement, so the cost to the State was very much greater than it need have been.
His successor was Richard Davies Hanson who was one of the applicants for the judgeship in 1836. He first went to New Zealand and then settled in South Australia. He was a very able man who was to have been the first Chancellor of the University of Adelaide but he died in March 1876 just before he was to give his inaugural address as Chancellor.
The first Queen’s Counsel were appointed on March 13, 1865. As usual Justice Boothby objected to their appointment. They were Stow, Wearing and Andrews, all of whom later became judges of the court.
Cabinet decided to hold circuit sittings at Palmerston (now Darwin) so Justice Wearing was sent on the long journey by sea around the eastern coast of Australia through Torres Straits to the Northern Territory to hold the first sittings of the circuit court in 1875. He returned on the Gothenburg which was wrecked on the Great Barrier Reef on 25 February 1875, resulting in the drowning of the judge, his associate Mr L.J. Pelham and many other passengers. Pelham had commenced the reporting of the South Australian Law Reports and from the one volume of his work which has come down to us, was an able reporter.
Wearing’s successor was Mr Justice Stow, a very good judge and leader of the bar at the time of his appointment. Unfortunately, he did not enjoy good health and died on 17th September 1878.
Hanson’s successor as Chief Justice was Samuel James Way who was to hold the position for nearly 40 years until his death on 9 January 1916. He was considered a master of the law by his contemporaries, but it must be said that a number of his judgments have not been followed in more recent years. His term of office as Chief Justice is a record in this country. He was one of two judges of the court to refuse appointment to the High Court of Australia (the other was Justice Gordon in 1913). When it was offered in 1906, he was already 70 years of age and was Chief Justice, Lieutenant-Governor, Grand Master, and Chancellor of the University and it was not likely that he would give all that up for a puisne judgeship of the High Court, which in those days travelled by wearisome stages on rail and by boat to all of the Australian States.
On Stow’s death Mr Justice Boucaut was appointed and remained in office until 1905. He had been Premier of the State for three terms and was largely responsible for the setting up of the present system of free, secular and compulsory education.
Justice Gwynne retired in 1881 and Mr Justice Andrews was appointed in his stead. He too was plagued by ill health and died on 26 June 1884. His successor was Mr Justice Bundey, who was a judge until his resignation in 1903. He was a noted yachtsman and wrote a book on yachting.
So for 19 years the same three judges, Way, Boucaut and Bundey, formed the court, the longest period of conjoint service in the history of the court. From 1885 to 1905, South Australia plunged into the longest period of depression the State has known. For some years in the 1890s, there were hardly more than 100 originating processes a year.
Not surprisingly there were suggestions in Parliament that one judge ought to be sacked and that the Supreme Court Library should be transferred for the use of Parliament. However, judges can only be removed for judicial misconduct and Way, Boucaut and Bundey were all men of the utmost judicial probity. Ultimately, Cabinet took no action on either suggestion.
When Justice Bundey retired, his successor was Mr Justice Gordon. There were many murmurings from the bar at his appointment because he has been a politician rather than a practitioner for many years, but his appointment turned out to be a good one. Similar murmurings occurred when Justice Homburg was appointed in 1905 to fill the place of Justice Boucaut. Paris Nesbit KC, in particular, delighted in exposing Homburg’s lack of knowledge of court procedure and the profession has many stories, some no doubt true and others ben trovato, of his successes at the expense of the judge.
The last appointment in Chief Justice Way’s lifetime was Justice Murray in 1912, to succeed Justice Homburg. Murray had had a brilliant career both academically and at the bar. Indeed when he was at the height of his practice as a King’s Counsel in 1909, he took a year off and went back to his college - Trinity College, Cambridge - where he passed with distinction a Master of Laws degree. It was therefore no surprise that on Way’s death, Murray was appointed Chief Justice and he served in that office until 18 February 1942. Like Way before him, Murray was a most effective Chancellor of the University and was for nearly 50 years a member of the Faculty of Law, of which Faculty he was at one time in his youth Acting Professor.
The next Chief Justice was Justice Napier, who became a puisne Judge in 1924 and Chief Justice in 1942. He served exactly 43 years in all on the bench from 28 February 1924 to his retirement in 28 February 1967, a record for judicial tenure in this State. He had a powerful mind and a wide knowledge of the law, and like the Almighty, had no pleasure in fools. Anyone who appeared before him, whether at first instance or in banco, had to be thoroughly armed with research on every possible point or he would be bowled out by the Chief Justice’s probing questions.
He was followed by Dr J.J. Bray, a scholarly man and a fine lawyer - not to mention his talent as a poet and playwright. He had to retire early because of ill health in October 1978 and was succeeded by Mr Justice King, who allied a successful political career to a fine career in the law. I say less of either of them than their merits deserve. They were my colleagues on the Bench for many years and it is more fitting that their careers be analysed later in detail by someone less close to them than I am. It is sufficient to say that both have ably sustained the high office they hold and the lustre given to the office by their predecessors Hanson, Way, Murray and Napier.
What then of the achievement of the court as a whole over 150 years? The court has dispensed even-handed justice without fear or favour over the whole of that period. Its members have worked long hours assiduously not only on the bench, but for the public good in honorary offices too numerous to mention. They have tried, and in my respectful opinion, with success, to set standards acceptable to the whole community in this State. The duty of a judge is encompassed in those words of Micah which were so often on the lips of Napier CJ: "He hath showed thee O man what is good. And what doth the Lord require of thee but to do justly, to love mercy, and to walk humbly with thy God". Being mere mortals they could not hope to carry out in its entirety the divine precept. What can be said is that they tried to the utmost of the powers of their minds and souls to live up to it.
By the Hon. Dr Howard Zelling, AO, CBE (Former Justice of the Supreme Court of South Australia)