Court Jurisdiction and History

Contents

Supreme Court Jurisdiction

The ACT Supreme Court is a superior court of record enjoying civil, criminal and appellate jurisdiction. Generally the original and appellate jurisdiction of the Court is exercisable by a single judge. Criminal trials may be heard before a judge and jury, or by judge alone at the election of the accused. In civil matters the Court has an unlimited monetary jurisdiction, although claims for less than $250,000 are usually brought in the Magistrates Court. An appeal lies to the Supreme Court from the Magistrates Court, the Childrens Court, and the ACT Civil and Administrative Tribunal (ACAT) (including the ACT Administrative Appeals Tribunal).

The Supreme Court exercises jurisdiction in corporations law, adoptions, probate and other matters including admiralty. The Court's admiralty jurisdiction was inherited from the Supreme Court of New South Wales. It is a jurisdiction which - according to former ACT Chief Justice Jeffrey Miles in his publication, A History of the Supreme Court of the Australian Capital Territory: The First 75 Years (Lawbook: 2009) - the Court has not yet had an opportunity to exercise even though it has power to hear matters to do with the Jervis Bay Territory, the Australian Antarctic Territory and the Heard and McDonald Islands Territory.

Composition of the Court

The Supreme Court comprises a Chief Justice, three resident judges, seventeen additional judges (each of whose primary commission is as a Judge of the Federal Court of Australia), and an Associate Judge who has broad jurisdiction in personal injuries matters. In addition three Acting Judges - Justices Nield, Mathews and Teague - were appointed in 2010.

The Court consists of three main administrative units that answer directly to a Courts Administrator. They are the Registry which is responsible for maintaining up-to-date records of the Court, processing judgments and orders, listing cases and securing court records; the Sheriff’s Office which is responsible for serving and executing the civil process of the Court, administering the jury system, court security and providing court attendants and the Russell Fox Library which is the main legal reference resource for the ACT courts.

History of the Court and its Judges

Establishment of the Supreme Court

The Supreme Court of the Australian Capital Territory was established as a superior court of record by the Seat of Government Supreme Court Act 1933 which commenced on 1 January 1934. The principal reason behind the establishment of a Supreme Court was to relieve the High Court of its original jurisdiction in respect to the Australian Capital Territory and to provide an intermediate court of appeal between the Court of Petty Sessions. Justice Lionel Oscar Lukin was appointed a Judge of the Supreme Court on 25 January 1934 and remained the sole judge of the Court until November 1943. Justice Lukin was also a judge of the Federal Court of Bankruptcy at the time and therefore did not sit full time on the Territory Supreme Court.

Acton House Courthouse

The first sitting of the Court was held at Acton House Courthouse on 12 February 1934. The first two matters heard by Justice Lukin involved actions for the restitution of conjugal rights. Lukin J. made the "usual order" that the wife return to her husband within 21 days. The first eleven cases heard were all concerned with matrimonial disputes.

The first recorded appeal to the Court from the Court of Petty Sessions was heard by Lukin J. on 29 August 1934 and involved allegations of illegal gambling activities. His Honour granted leave to appeal in that matter from a finding that Mr Mitchell had been found without lawful excuse in a house known as Mitchell’s Mess, Causeway, used for the purposes of the occupier betting with persons resorting thereto. The matter was finally heard by Lukin J. on 24 September 1934. Mr Mitchell was represented by a junior, Mr Clive Evatt, and the Crown was represented by Sir Robert Garran. The police evidence suggested that there was certainly something guilty going on there from the fact that as they entered the doorway there was a wholesale debouchment through the window of the establishment by its patrons. Mr Mitchell’s appeal was dismissed and he had to pay a five shilling fine and the costs, which were some five times that amount.

The Acton House Courthouse proved to be unsatisfactory accommodation for the Supreme Court for a variety of reasons. Early in 1935 the Supreme Court was moved to Hotel Acton. The Acton Courthouse was demolished in 1940 when the Court of Petty Sessions also moved to Hotel Acton which still stands today behind Rydges Lakeside Hotel.

Arrangements were made subsequently (from January 1941) for the Supreme Court to be moved to the new Patents Office in the suburb of Parkes (which forms part of the presently existing Commonwealth Attorney-General’s building (Robert Garran Offices).

Mr Justice Lukin retired due to ill-health in November 1943 and was succeeded by Sir Thomas Stuart Clyne on 18 November 1943. Mr Justice Clyne held the office of Judge for two years, resigning in October 1945. After him Brigadier William Ballantyne Simpson was appointed Judge in October 1945 and held the office for fifteen years until 1960. During his tenure in 1958 provision was made for judges of Commonwealth Courts to serve as additional judges – a timely provision, because in the seven year hiatus following Mr Justice Simpson’s retirement, the Court was constituted principally by additional judges – Justices Dunphy, Joske, Eggleston, Smithers and Kerr (Judges of the Commonwealth Industrial Court) and Bridge J. (Judge of the Northern Territory Supreme Court).

Supreme Court Moves to the Law Courts Building

The Supreme Court occupied its present accommodation when the Law Courts Building, situated in Knowles Place on the Western side of City Hill, was opened by Prime Minister, Sir Robert Menzies, in 1963. The first sittings of the Court in its new premises took place on 9 May 1963.

Front of ACT Supreme Court The ACT Supreme Court, Law Courts Building, Knowles Place, Canberra

The Law Courts Building was built for the National Capital Development Commission by Clements Langford (Canberra) Pty. Ltd. Consultant Architects for the project were Messrs Yuncken and Freeman. Although designed of contemporary materials and construction techniques, the building follows traditional lines of court architecture. Its exterior walls are of polished grey Wombeyan marble, with replicas of the Australian coat-of-arms above the two main entrances. A notable feature of the building is the glass-sided open atrium extending the height of the two-storey building. A significant feature of the courtrooms on the ground floor is the use of timbers donated by, and representative of, the six States of the Commonwealth. Each State provided timber for the panelling and furniture of one of the six courts as follows:

New South Wales – Red Cedar;

Victoria – Mountain Ash;

Western Australia – Jarrah;

Queensland – Silky Oak;

South Australia – Red Gum; and

Tasmania – Blackwood.

Judicial Appointments

In 1964 Sir Reginald Allfree Smithers was appointed Judge of the ACT Supreme Court. This was prior to receiving his commission as a Judge of the Australian Industrial Court in December 1964. Sir John Robert Kerr was appointed as a full-time Judge of the ACT Supreme Court from June to November 1966.

By April 1967 the pool of judges was down to four due to the appointment of Justice Eggleston as President of the Trade Practices Tribunal and the death of Justice Bridge in 1966.

In July 1967 Russell Walter Fox was appointed to the Territory Supreme Court. He was the first Chief Judge of the Court from 18 January 1977 to November 1977. The Supreme Court Library is named in his honour.

Justice Harry Talbot Gibbs, a Judge of the Federal Court of Bankruptcy and later to become Chief Justice of the High Court, was appointed additional Judge of the ACT Supreme Court in August 1967.

When the Supreme Court was constituted in 1933, the Supreme Court Act provided for one judge only; in 1958, provision was made for "additional judges" of other federal courts to assist with the caseload. In 1971, the Act was amended to allow for the appointment of a second resident judge.

On 10 August 1971, Sir Richard Arthur Blackburn was sworn in as the ACT’s second resident judge and was appointed Chairman of the ACT Law Reform Commission. August 10th 1971 was also the first time three Judges had sat together in the ACT. They were Fox, Blackburn and Kerr JJ. Justice Blackburn became Chief Judge of the Supreme Court on 3 November 1977 - succeeding Chief Judge Fox - and Chief Justice on 5 May 1982, when the office of Chief Justice was substituted for the office of Chief Judge in recognition of the stature of the Court within the Australian judicial system.

In March 1972 Francis Xavier Lockington Connor was appointed as the third Judge of the Supreme Court. He served on the Court until his retirement on 17 March 1982.

In October 1977 Justice Fox was appointed Ambassador-at-Large in relation to matters concerning nuclear non-proliferation and safeguards.

On 3 November 1977, Douglas Gordon Patrick McGregor was appointed to the bench and served as a judge until December 1979 when he changed his status to that of an additional judge.

In March 1980, John Joseph Anthony Kelly was appointed to the ACT Supreme Court bench. Justice Kelly served over ten years on the Supreme Court, retiring on 30 June 1990.

On 14 May 1982, John Foster Gallop was appointed a Judge of the ACT Supreme Court. He held concurrent commissions as Judge of the Supreme Court of the Northern Territory, Judge of the Federal Court of Australia and was also President of the Defence Force Discipline Appeal Tribunal. Justice Gallop retired on 31 July 2000.

On 17 June 1985, Jeffrey Allan Miles succeeded Justice Blackburn as Chief Justice of the Supreme Court. Justice Miles served as Chief Justice of the Court and as a Federal Court Judge until his retirement on 30 September 2002.

In June 1990, Terence John Higgins was appointed a Judge of the ACT Supreme Court. His Honour also held an appointment as a Judge of the Federal Court. Justice Higgins was appointed Chief Justice on 31 January 2003 retiring on 13 September 2013. He was succeeded as Chief Justice by Her Honour Judge Helen Gay Murrell who was sworn in as Chief Justice on 28 October 2013.

The ACT Supreme Court (Transfer) Act 1992 (Cth) commenced on 1 July 1992, on which date the Supreme Court transferred from Commonwealth to Territory administration. This Act was consequential upon the passage of the ACT (Self-Government) Act 1988 (Cth) which established "The Australian Capital Territory" as a body politic under the Crown. From July 1992, the Supreme Court was conferred all original jurisdiction necessary for the administration of justice in the Territory.

The first judicial appointment to the Court by the ACT administration was Kenneth John Crispin on 26 September 1997, resulting in the Supreme Court having four resident Judges, including the Chief Justice. Justice Crispin was not given a concurrent commission as Judge of the Federal Court of Australia. This represented a departure from previous practice whereby the Commonwealth had previously (before self-government) appointed ACT Supreme Court Judges to also be Judges of the Federal Court of Australia since the establishment of that Court in 1976. Before the establishment of the ACT Court of Appeal in 2002, appeals from a judge of the Supreme Court went to the Federal Court. It was the usual practice for a resident ACT Supreme Court Judge to sit on the Federal Court on an appeal from the Supreme Court. Justice Crispin retired on 10 October 2007.

In October 2000 Malcolm Forgan Gray RFD was appointed a Judge of the ACT Supreme Court.  Justice Gray retired in 2011 and was succeeded by Justice John Burns in August 2011.

Richard Christopher Refshauge  commissioned as a Judge of the ACT Supreme Court on 8 January 2008 retired on 11 May 2017.  Hilary Ruth Penfold was appointed to the Supreme Court bench on 15 January 2008.

Terence Connolly (Master of the Supreme Court) was appointed a Judge of the Court on 31 January 2003. Justice Connolly died in office on 25 September 2007.

There have been four appointments as acting Judge of the Court. Kenneth John Carruthers QC was appointed the first acting Judge of the Supreme Court for the period 1 May 1995 to 22 December 1995. In 1999 his appointment was the subject of legal challenge in the High Court in the case Re Governor, Goulburn Correctional Centre; Ex Parte Eastman (1999) 200 CLR 322. The appointment was held to be validly made. Alan Eugene Hogan, previously Master of the Court, was appointed acting Judge for the period 8 July 1996 to 13 December 1996. Dr Kenneth John Crispin was appointed acting Judge in July 1997 and was subsequently appointed a resident Judge of the Court in September 1997. Jeffrey Allan Miles, formerly the Chief Justice, was appointed Acting Judge from 1 October 2002.

Masters of the Supreme Court

There have been four Masters of the Supreme Court. Mr Alan Eugene Hogan was appointed the first Master in January 1990 followed by Mr Terence Connolly in February 1996, and Mr David Harper who was appointed on 7 April 2003 and retired on 21 May 2013. Mr David Mossop commenced duties on 22 May 2013 and changed title to Associate Judge with the commencement of the Courts Legislation Amendment Act 2015 on 21 April 2015. On 13 February 2017 Associate Judge Mossop was sworn in as  Judge of the ACT Supreme Court.

The Master exercised a broad civil jurisdiction delegated to that position by the Judges. From 1989, when the Supreme Court Act was amended to create the office, the jurisdiction has increased to the stage where a wide range of civil cases can be heard by the Master.

Associate Judge of the Supreme Court

The Courts Legislation Amendment Act 2015 (ACT) was notified on 7 April. Amongst other things, that Act has the effect of changing the title of the office of the “Master” of the ACT Supreme Court to “Associate Judge” of the ACT Supreme Court effective 21 April 2015.

The Associate Judge can be referred to or addressed in the same way as a regular judge of the Supreme Court (that is, “Associate Justice Mossop” or “Judge” if in chambers).

Appeals against any orders of the Associate Judge may be sought only with the leave of the ACT Court of Appeal; appeals will also be heard by that Court.