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Equity, Prosperity and Dispute Resolution Across Borders
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.