Master of the Supreme Court (GA228)

The Master is the Registrar of the Court and is responsible for the administration of its offices. In addition the Master has most of the powers, and carries out the duties, of a Judge in Chambers.

Until 1927, the Master was also Registrar Companies, Associations, Industrial and Provident Societies, and Trade Unions.

Master of Supreme Court:

The Supreme Court was established in 1837 by Vice-regal Ordinance (7 Wm 1V, No. 5) and its functions and staff gradually expanded, the first Master being appointed in 1844. In English Courts the Master (or Prothonotary) is the Chief Clerk and Registrar of the court, but in South Australia the office has developed a judicial role. This reflects, in part, the exigencies of a court whose single Judge had to travel on circuit, and in part the problem of filling judicial vacancies in a small colony. It was common, throughout the nineteenth century, and well into the twentieth, to appoint the Master as Acting Judge whenever a vacancy occurred on the bench.

Ordinance 14 of 1845 empowered the Master, during the absence on circuit of the Judge, to carry out virtually all the business of the Supreme Court, with the exception of hearing trials. The 1850 "Rules of the Supreme Court" extended his chamber function (issuing writes: taking affidavits and answers in Equity; recovery of debts) and throughout the 1850s and 1860s amendments to the Supreme Court Act added to the matters that could be dealt with by, or referred to, the Master (1). This development culminated in the Supreme Court Act, 1878 (No. 116 of 1878) which authorised the Master to try cases as a referee (his judgement to have the force of a jury verdict) and the 1928 Act (No. 1864) which empowered the Court to assign to the Master all the functions of a Judge sitting in Chambers (with the sole difference that the first appeal from his decisions would be to a Judge in Chambers). Rules of court embodying these powers were promulgated in 1929 (2).

In addition to his growing judicial role, the latter nineteenth century saw the Master's function as Registrar being added to, not only by the growth of the several jurisdictions of the Supreme court, but also by the requirements of totally unrelated Acts of the colonial Parliament. (As early as 1846 it had been proposed, unsuccessfully that the Registrar-General's Office come under the control of the Supreme Court) (3). The Master became Registrar of Companies after 1855, and Registrar under the Associations Incorporation Act, 1858; the Industrial and Provident Societies Act, 1864; the Trades Unions Act, 1876; and the Conciliation Act, 1894. Whilst some of these were of a temporary nature (until the Governor shall appoint a Registrar) all lasted until 1927. The Master added to them by becoming the District Registrar of the High Court in 1901 and Registrar of probates in the South Australian Probate and Succession Duties Department in 1903 (4).

The functions of the Master were matched by additions to the staff of the Supreme Court. The clerk of the court became a Chief Clerk (with junior clerks) in 1876, but it was not until 1902 that the Chief Clerk became the Deputy Registrar of Companies. This function passed to the "Clerk [later Accountant] and Receiver of Fees" the following year, and in 1907 a "Clerk to the Registrar of Companies" was appointed.

World War I created a hiatus in the Supreme Court, as elsewhere in the Public Service. For several years after the War there was no Deputy Registrar, nor a Chief Clerk for that matter. In 1923, a Deputy Master and Chief Clerk (one person) was appointed and in 1926 the Master passed his non-judicial Registry functions to the Deputy. In the same year the Clerk to the Registrar surrendered all his duties which were associated with the business of the Court. In October, 1927 the "Company's Branch" of the Supreme Court Department became the "Companies Office" within the Attorney-General's Department (5), ending the long association of the Master (and Deputy Master) with the office of the Registrar of Companies.

From this point on the offices of Master and Deputy Master of the Supreme Court were purely judicial (their registry function confined to the business of the Court). The Supreme Court Act, 1935 (No. 2253 of 1935) provided for the appointment of a second Deputy Master, to cope with the increasing responsibilities of the office.

Masters of the Supreme Court include:
- Charles Mann (1844 - 1849)
- Henry Jickling (1850 - 1861)
- W. Hinde (1861 - 1878)
- James G. Russell (1878 - 1884)
- W.D. Scott (1884 - 1891)
- Alexander Buchanan (1891 - 1912)
- W.L. Stuart (1913 - 1932)
- F.B. McBride [McBryde] (1932 - 1957) (previously Deputy Master, 1921 - 1932)
- K.H. Kirkman (1957 - 1961)
- George H. Walters (1961 - 1965) (previously Deputy Master, 1957 - 1961)
- William E.S. Forster (1966 - 1971) (previously Deputy Master, 1961 - 1966)
- J. Boehm (1971 - 1984) (previously Deputy Master and later Auxiliary Master)
- Malcolm Teesdale Smith (1981 - 1985) (previously Deputy Master and later Auxiliary Master)
- Robert G. Ferrett (1981 - 1987) (previously Deputy Master, 1978 - 1981)
- Robert Martin Lunn (1984 - 1989) (previously Deputy Master)
- David St Leger Kelly (1985 - 2005)
- Peter Bowen Pain (1985 - 2005)
- Brendan M. Burley (1987 - 2005)
- J.P. Anderson (1990 - 1997)
- Brian Withers (2004 - 2015)
- Robert Martin Lunn (2004 - 2012) (previously Master)
- Graham Dart (appointed 29 March 2013)
- Katrina Bochner (appointed 14 September 2015)

Registrar of Companies:

Under Act No. 25 of 1855-56, "An act to provide for the Registration of Joint Stock Companies, and for Limiting the Liability of members thereof", provision was made for the appointment by the Governor of a Registrar of Joint Stock Companies, who was to grant certificates of registration to companies following the filing of a memorial by the company in the Supreme Court and to record for subsequent reference the annual and half-yearly returns lodged by the companies. Until the appointment of the Registrar, his duties under the Act were to be discharged by the Master or Chief Clerk of the Supreme Court. In practice the position of Registrar of Companies continued to be held by the Master of the Supreme Court until 1926 when the duties and title were vested in the Deputy Master and Chief Clerk (6).

Under an amendment to the Companies Act 1856, banking and assurance companies established in South Australia were enabled to limit their liability under certain restrictions and came under the jurisdiction of the Registrar (7). Under Act No. 13 of 1864, the provisions of these earlier Acts were revised and extended and provision was again made for the appointment by the Governor-in-Council of a Registrar for the registration of companies (8). In 1886 an amendment was made to the Companies Act to make provision for foreign trading corporations (allowed to commence business in South Australia following the appointment of an attorney and the deposit by that attorney of a certified copy of the original power of attorney under which he claimed to represent the foreign company), and in 1892, the original Act was consolidated and amended, with revised rules for the mode of forming a company and the requisites of the memorandum and articles of association, new provisions for the passing of the memorandum and articles of association before incorporation and for penalties for refusal by a company to allow inspection of its register of members, new regulations for the sub-division of company shares, and special regulations for foreign and no-liability companies (9).

From 1924, under "An Act to provide for the Registration of Mortgages and charges created by Companies, and to amend the Law relating to Debentures issued by
Companies, and for other purposes", companies were compelled to file with the Registrar a list of mortgages and charges created and debentures issued by it, and the Registrar was to maintain a register of these, to be open for public inspection upon payment of the prescribed fee (10).

Trade Unions:

Under the Trade Union Act of 1876, the Governor was empowered to appoint a Registrar to receive applications for the registration of trade unions, until which appointment the Master of the Supreme Court was to exercise the powers and perform the duties of the Registrar. The duties under this Act were subsequently performed by the Master of the Supreme Court until new provision was made for the registration of trade unions, and other associations of employers and employees, as Industrial Unions under the conciliation Act of 1894, (Parts II and III). Under this Act the Governor was empowered to appoint an Industrial Registrar, responsible for receiving and assessing applications for registration, and with whom copies of all industrial agreements were also to be filed. The Industrial Arbitration Act Amendment Act of 1915 further detailed what associations and under what conditions such associations might be registered under the Act. In this Act the separate Division relating to Trade Unions was dropped, the Act (and the subsequent Industrial Code of 1920) referring only to "associations" of 20 or more employees. From 1904 Trade Unions could also be registered under the Commonwealth Conciliation and Arbitration Act, and the Registrar in fact encouraged unions to do so. [The Trade Union Act of 1876 was, however, only repealed in 1972, under the (South Australian) Industrial Conciliation and Arbitration Act] (11).

It is impossible to date the separation of the function of Registrar from that of Master, as the Industrial Court began as a jurisdiction of the Supreme Court and its first Judge was a former Master of the Supreme Court. In addition, at least part of the responsibility for registration of Trade Unions continued to be held by the Registrar of Companies when the Companies Office was transferred to the Attorney-General's Department.

Industrial and Provident Societies:

The duties of the Registrar of Industrial and Provident Societies, as established under the Industrial and Provident Societies Act of 1864 and the subsequent Act of 1923, were similarly vested in the Master of the Supreme Court until the appointment of Briskham as Registrar of Companies, Industrial and Provident Societies, and Trade Unions in 1927 (13).

The records held are solely those "culled" from the active files because a company or association had been liquidated, voluntarily wound up, or struck off the register. If a company is still trading, then its records will still be held by the current successor to the Registrar of Companies.

Footnotes:

Master of the Supreme Court:

(1) Supreme Court Procedure Amendment Act, 1853 (No. 5 of 1853.)

The Supreme Court Procedure Act, 1855 (No. 24 of 1855-56).

An Act to consolidate the several Ordinances relating to the Establishment of the Supreme Court of the Province of South Australia, 1855 (No. 31 of 1855-56).

An Act to provide for the more speedy administration of Justice, by means of the Supreme Court, 1865 (No. 12 of 1865-56).

An Act to regulate and amend the Practice and Procedure of the Supreme Court of the Province of South Australia its Revenue Jurisdiction, 1866 (No. 7 of 1866).
Supreme Court Act, 1867 (No. 8 of 1867).

(2) S.A.G.G. 30 May, 1929, p. 1106.

(3) R.M. Hague, "History of Law in South Australia", unpublished T.S. in the Public Record Office (V 1051).

(4) Parliamentary Paper No. 2 (until the Public Service Staff List was computerised in 1972 it provided detailed information about the senior officers in each department).

(5) As this change was not gazetted the date has to be inferred from pp. 2 and 5 of 1928.

(6) S.A. Parliamentary Papers No. 2 each year 1868-1926; 1869/70 No. 113; 1874 No. 109.

(7) S.A. Statutes, Act No. 5 of 1856, "An Act to amend an Act entitled "An Act to provide for the Registration of Joint Stock Companies and for Limiting the Liability of members thereof".

(8) S.A. Statutes, Act No. 13 of 1864, "An Act for the Incorporation, Regulation and winding up of Trading Companies and other Associations".

(9) S.A. Statutes, Act No. 375 of 1886, "An Act to amend 'The Companies Act, 1864'" and No. 557 of 1892 "An Act to consolidate and amend the Law relating to Companies".

(10) S.A. Statutes, Act No. 1619 of 1924, "An Act to provide for the Registration of Mortgages and Charges created by Companies, and to amend the Law relating to Debentures issued by Companies and for other purposes".

(11) S.A. Statutes, Act No. 41 of 1876 (Trade Union Act, 1876); Act No. 698 of 1894 (Conciliation Act, 1894); Act No. 1235 of 1915 (Industrial Arbitration Act Amendment Act, 1972).

(12) S.A. Statutes, Acts No. 12 of 1864 and 1588 of 1923.

(13) S.A. Statutes, Acts No. 1851 of 1928 and 2283 of 1936.

Related legislation or other instrument:

Supreme Court:

An Act for the Establishment of a Court to be called the Supreme Court of the Province of South Australia (7 Wm IV, No. 5) [1837].

An Ordinance to amend an Act or Ordinance entitled "An Act for the establishment of a court to be called the Supreme Court of the Province of South Australia (No. 6 of 1844).

An Ordinance to provide for the performance of certain matters in the Supreme Court during the occasional absence of the Judge, at a distance from Adelaide (No. 14 of 1845).

An Ordinance to make the validity of the General Rules and Orders of the Supreme Court of South Australia, already made or hereafter to be made, dependent upon the Ratification of them by some subsequent Ordinance of the Governor and Legislative Council of South Australia (No. 5 of 1848).

An Ordinance to extend the time for the Confirmation of the General Rules and Orders of the Supreme Court (No. 10 of 1849).

An Ordinance further to Amend "An Act for the Establishment of a Court to be called the Supreme Court of the Province of South Australia" (No. 12 of 1849).

An Ordinance for the confirmation of the General Rules and Orders of the Supreme Court of South Australia, and to Amend the Laws relating to such General Rules and Orders (No. 2 of 1850).

Supreme Court Procedure Amendment Act (No. 5 of 1853).

The Supreme Court Procedure Act, 1855 (No. 24 of 1855-56).

An Act to Consolidate the Several Ordinances relating to the Establishment of the Supreme Court of the Province of South Australia (No. 31 of 1855-56.

An Act to provide for the more speedy administration of Justice, by means of the Supreme Court (No. 12 of 1865-66).

An Act to regulate and amend the Practice and Procedure of the Supreme Court of the Province of South Australia in its Revenue Jurisdiction (30 Vict, No. 7) [1866].

Supreme Court Act, 1867 (31 Vict, No. 8).

An Act to Amend the "Supreme Court Act, 1867" (32 Vict, No. 7) [1868].

Supreme Court Act, 1878 (41 and 42 Vict, No. 116).

Supreme Court Act, 1928 (No. 1864 of 1928).

Supreme Court Act, 1935 (No. 2253 of 1935). This Statute has been amended 41 times to become the

Supreme Court Act, 1935-1985.

[The following is not an exhaustive list of corporate legislation. It includes only those statutes which affected the work of, or were administered by, the Registrar of Companies. In addition some companies, particularly Trustee Companies, were (and still are) established by Private Act of Parliament and were exempt from the various Companies Acts insofar as their rights and responsibilities were prescribed by such Private Acts.]

Companies:

[The Companies Clauses Consolidation Act, (No. 5 of 1847) regulated, inter alia, the records that a company must keep, thus paving the way for registration and a standard of reportage to the registering authority.]

An Act to provide for the Registration of Joint Stock Companies, and for limiting the liability of members thereof (No. 25 of 1855-56).

[This Act provided for the lodgement of a memorial (memorandum of association) and specific annual and half-yearly reports with the Registrar of Joint Stock Companies (or the Master of the Supreme Court pending such appointment).]

An Act to Amend and Act entitled "An Act to provide for the "Registration of Joint Stock Companies, and for limiting the liability of Members thereof" (No. 5 of 1856).

[Extended the provisions of the principal Act to banking and assurance companies].

The Companies Act, 1864 (No. 13 of 1864).

[This Act repealed, inter alia, the Associations Incorporation Act, 1858 (No. 12 of 1858) and made provision for both Companies and Associations. Although the Parliament continued to pass separate enactments for Associations, they were always linked to specific sections of the Companies Act after 1864.]

An Act to Repeal part of the "Companies Act, 1864" (No. 12 of 1865).

[This Act repealed the repeal of (i.e.: brought back into force) The Associations Incorporations Act, 1858.]

An Act to Amend "The Companies Act, 1864" (No. 22 of 1870-71).

[One of the provisions of this statute was to exclude banks and insurance companies from the provisions of the Companies Act.]

An Act to amend the Act No. 22 of 1870-71, entitled "An Act to amend the Companies Act, 1864" (No. 93 of 1878).

[Restored fire and marine insurance to the ambit of the principal Act.]

The Companies Act Amendment Act, 1883 (No. 289 of 1883).

[Provided for changes of company name, and the registration of such changes.]

The Companies Act Amendment Act, 1886 (No. 375 of 1886).

[Provided for the registration of "foreign" companies. ie: companies from outside S.A., whether their headquarters were overseas or in another Australian colony].

The Companies Act Amendment Act, 1887 (No. 408 of 1887).

[This was the first "Companies Act" to be applied to mining companies and foreshadowed the ending of the distinction between mining companies and other corporate entities in 1892.]

The Companies Act, 1892 (No. 557 of 1892).

[This statute repealed the bulk of existing corporate legislation and reformulated it in a single comprehensive statute. In particular, it repealed all Mining Companies Acts, placing mining companies on the same legal footing as all other companies]

The Companies Amendment Act, 1893 (No. 576 of 1893).

The Companies Act Further Amendment Act, 1906 (No. 914 of 1906).

Companies (Mortgages, Charges and Debentures) Act, 1924 (No. 1619 of 1914).

[This Act required companies to register all charges on their capital and report every six months on the status of such charges.]

Companies Amendment (Names) Act, 1926 (No. 1738 of 1926).

Companies Amendment Act, 1926 (No. 1754 of 1926).

Associations:

The Associations Incorporation Act, 1858 (No. 21 of 1858).

[To alleviate problems associated with trusteeship, this Act provided for the Incorporation of institutions and associations, and imposed reportage conditions similar to those for companies. The Act was repealed by the Companies Act, 1864, but that repeal was itself repealed the following year (by No. 12 of 1865), though thenceforth there was always a linkage between the current Acts governing Companies and Associations.]

The Associations Incorporation Amendment Act, 1887 ( No. 395 of 1887).

Associations Incorporation Act, 1890 (No. 480 of 1890).

Associations Incorporation Act, 1890, Amendment Act, 1897 (No. 678 of 1897).

[Exempted associations from S 109 of the Companies Act, 1892 and in its stead applied S 189 to them.]

Associations Incorporations Act Further Amendment Act, 1919 (No. 1376 of 1919).

[Extended the Act to cover virtually any non-profit organisation.]

Industrial and Provident Societies:

The Industrial and Provident Societies Act, 1864 (No. 12 of 1864).

Industrial and Provident Societies Act, 1923 (No. 1588 of 1923).

Mining Companies:

The Miner's Act, 1865 (No. 13 of 1865).

[Passed specifically for "companies or associations formed for the carrying on of mining or smelting" the Act required registration with the Registrar of Joint Stock Companies (in effect the Master of the Supreme Court), although the reportage requirements were much simpler.]

The Mining Companies Act, 1881 (No. 204 of 1881).

[Reformulated the above and extended the registration provisions.]

The Mining Companies Amendment Act, 1881 (No. 218 of 1881).

The Mining Companies Amendment Act, 1882 (No. 256 of 1882).

The Mining Companies Further Amendment Act, 1887 (No. 396 of 1887).

[The above enactments were repealed by the Companies Act, 1892, which ended the distinction between mining companies and all other companies]

Trade Unions:

The Trade Union Act, 1876 (No. 41 of 1876).

[This Act gave Unions legal status.]

Conciliation Act, 1894 (no. 598 of 1894).

[Registration under this Act brought a Union within the jurisdiction of the Industrial Court.]

The Industrial Arbitration Act, 1912 (No. 1110 of 1912).

Industrial Arbitration Act Amendment Act, 1915 (No. 1235 of 1915).

Industrial Arbitration Act Further Amendment Act, 1916 (No. 1243 of 1916).

[The above legislation, with the exception of the 1876 Act, was repealed by the Industrial Code, 1920 (No. 1453 of 1920) which placed all matters relating to Trade Unions in the hands of the Industrial Court.]

Business Names:

The Registration of Firms Act, 1899 (No. 723 of 1899).

[Provided for the registration of business names where such names were not those of the principals of the business.]

The Registration of Firms Act Amendment Act, 1922 (No. 1518 of 1922)