Vice Admiralty Court (New South Wales) - Work of The Court Before 1840

Work of The Court Before 1840

The first sitting of the court purported to be in 1798 when Governor Hunter convened the latter court to deal with charges of mutiny and attempted piracy. As Bennett has shown, whilst the court was convened as a vice-admiralty court, it was in fact the Court of Vice-Admiralty. No harm was done as the defendant was acquitted on the basis of insufficient evidence.

The majority of the work of the court was administrative in nature. Archive records from the court indicate that this related to the granting and revoking of letters of marque and the provision of sureties by masters or shipowners. Interestingly, after the death of Ellis Bent, deputy judge advocate of the colony and also judge of this court, his brother Jeffery Hart Bent, offered to serve as judge. Jeffery Bent was the judge of the Supreme Court of Civil Judicature. His offer was declined by Governor Hunter and he was never commissioned. However, when he left New South Wales after his appointment as judge of the Supreme Court was revoked, he took the Admiralty court seal entrusted to his brother Ellis with him back to the United Kingdom. Castles says that the removal of the seal was to cause litigants in the court to bitterly remember Bent. This was because that documents from the court could not be sealed until a new seal arrived from the United Kingdom, frustrating litigation in the court.

In 1823, the Third Charter of Justice created a new Supreme Court of New South Wales. That court was to be presided over by Chief Justice of New South Wales Francis Forbes. However, the British authorities did not transfer the admiralty jurisdiction of the vice admiralty court to that new court. Until 1911, this court and the new Supreme Court operated side by side. In some cases, both courts had concurrent jurisdiction, such as over criminal offenses committed upon the high seas. However, in practice, criminal cases were brought in the Supreme Court probably because of the difficulty in finding seven commissioners to sit. In practice, the senior judge of the Supreme Court was also appointed as a judge of the vice-admiralty court. This could cause problems as when the judge was unavailable through leave or absence, there was a belief that no other person who could perform the role. For example, in the case of the Almorah, the Attorney General of New South Wales Saxe Bannister thought that there was no actual admiralty court as Forbes did not hold an actual commission from the United Kingdom as a judge in Admiralty. Bannister advised that the case should be tried in Calcutta, India.

In 1841, the Admiralty in England decreed that the chief justice should be the judge in admiralty. This changed the previous practice of directing appointing a person to be judge. However, under Chief Justice Alfred Stephen, the vice-admiralty commission was given to Justice Samuel Milford instead. Milford regularly sat in the court at least one day a week. However, when Milford was appointed the Resident Judge at Moreton Bay (being the precursor of the Supreme Court of Queensland, Stephen offered to resign his commission as judge in vice-admiralty. The British authorities declined that request and advised that if Stephen was to resign his admiralty commission, by necessity, he would have to resign his commission as chief justice of the Supreme Court.