Dec 29, 2017

In 1870 the South Australian judges objected to proposed legislation on the ground that it was ‘a direct attack upon the independence of the Judicial Bench’¹ because it would empower the Governor to select one of their number as the Primary Judge in Equity.² The appointment of such a judge was permitted by section nine of the Equity Act 1867 (SA) (‘Equity Act’), but that Act made no provision for a replacement if the judge should suddenly resign. The Equity Act was passed by the Parliament despite these objections and was intended to overcome the insistence of Gwynne J, who had heard equity matters, that he be relieved of hearing all other matters except matrimonial and testamentary causes.³ Section one of the Equity Act was actually designed to prevent a judge from resigning as the Primary Judge in Equity until the Governor, on the advice and consent of the Executive Council, should accept the resignation.⁴

The judge had tendered his resignation as the Primary Judge in Equity, but not from his other post as Second Judge, in protest against the lack of the necessary staff and court room facilities⁵. The government conceded the point about appropriate facilities and staff and appointments were quickly made⁶.

1. South Australia, Primary Judge in Equity Act, Parl Paper No 163 (1870).
2. For the papers see South Australia, Parl Paper No 68, 68A, 68B, 163 (1870).
3. South Australia, Parliamentary Debates, Legislative Assembly, 15 November 1870, cols 1336–7  for the second reading speech on the Equity Bill 1870 (SA).
4. Equity Act 1870 (SA) 33 & 34 Vict, No 23
5. South Australia, South Australian Government Gazette, No 42, 15 September 1870, 1216
6. South Australia, South Australian Government Gazette No 29, 16 June 1870, 719

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