A-G (Cth) v Finch

[47]

Once this Court has decided that a judgment of a court below is to stand, the possibility of an Order in Council setting aside or varying that judgment cannot be admitted. Although there are alternative avenues of appeal from the Supreme Courts of the States in some cases, those avenues are within the same legal system and it is axiomatic that a legal system cannot admit the possibility of inconsistent final orders disposing of the same matter. The courts which are entrusted with judicial power may be diverse, but in the end they must speak with one voice or only one may speak. In those cases of which Caltex Oil is an example the application of legal rules binding upon two final courts suffices to avoid the possibility of inconsistent final orders: in Caltex Oil the majority found judicial comity and I found the principles of res judicata sufficed for that purpose. The statutes conferring jurisdiction on this Court and giving legislative sanction to the jurisdiction of the Judicial Committee could not have been construed as providing for the exercise of concurrent jurisdiction by both Courts if there had been no legal rules ensuring that this Court and the Judicial Committee made consistent orders. An "inconsistency between the underlying statutory provisions" (per Deane J. [21] ) would have been manifested, and that inconsistency would have been resolved in favour of the statutes conferring jurisdiction on this Court. Their Lordships' jurisdiction, given legislative sanction by the Judicial Committee Act 1833 Imp. and the Judicial Committee Act 1844 Imp., is affected to the extent necessary to give full operation to the 1968 Act and the 1975 Act: cf. Kitano v. Commonwealth of Australia [22] ; Attorney-General (Cth) v. T. & G. Mutual Life Society Ltd. [23] . As the 1968 Act has the effect of making final the decisions of this Court refusing special leave to appeal, no further proceeding can be taken to invoke the jurisdiction of the Judicial Committee to review the issues thus decided. If there be no legal rules sufficient to avoid the possibility of orders by the Judicial Committee inconsistent with the orders made by this Court, it is not possible to admit the existence of jurisdiction in the Judicial Committee.

[55]

The Privy Council (Limitation of Appeals) Act 1968 Cth and the Privy Council (Appeals from the High Court) Act 1975 Cth abolished appeals from this Court to the Privy Council subject only to the theoretical exception of an appeal pursuant to a certificate of this Court in a matter involving an inter se question. This represented no mere sea-change. It effected a bifurcation of the previous unified appellate structure into distinct structures: one, in which this Court ordinarily has no role to play, leading to the Privy Council; the other, in which the Privy Council has no role to play, leading to this Court. In the appellate structure leading to the Privy Council, from which all matters involving the exercise of federal jurisdiction are now excluded (Judiciary Act s. 39(2)(a)) the Judicial Committee remains the final appellate court. It is there alone that the Judicial Committee remains of pre-eminent authority in so far as Australia is concerned. In all other areas, this Court is the ultimate appellate tribunal for Australia. As between the Judicial Committee and this Court, there no longer exists the control of conflict in the exercise of judicial powers by different courts which is inherent in the hierarchy of tribunals in a single appellate structure. Nor can the judicial powers of this Court be read back to avoid conflict with the judicial powers of the Privy Council in a manner which may have been appropriate when this Court was part of an appellate structure in which the Privy Council was pre-eminent. If inconsistency exists or arises between the respective judicial powers of the Privy Council and of this Court, it manifests, pro tanto, inconsistency between the statutory foundations of the respective jurisdictions and must be resolved in accordance with ordinary legal principles. It is clear that, in the event of any such particular underlying inconsistency between the provisions of the Imperial Acts (and Orders in Council made under them) determining and regulating the jurisdiction of the Privy Council and the provisions of the Constitution (and legislation enacted by the Commonwealth Parliament under it) establishing and conferring jurisdiction on this Court, the Constitution (and legislation under it) must prevail by reason of the fact that the Constitution enjoys the authority of the later enactment of the Imperial Parliament. The disagreement between the majority and myself in the Caltex Case was, as I read the majority judgments, restricted to the question whether "any relevant inconsistency" could be discerned in the operation of the respective sets of provisions, according to their terms, to authorize the concurrent appeals to this Court and to the Judicial Committee which the different parties sought to pursue in the particular circumstances of that case (see per Gibbs C.J., Mason, Wilson and Dawson JJ. [29] ). 1. (1979) 145 C.L.R. 246. 2. Ante, pp. 93-101. 3. Ante, p. 96. 4. Ante, p. 80.

[56]

The circumstances of the present case are significantly different from those of the Caltex Case. One such difference is that, in the present case, it is the same party who initiated the resort to this Court and who now, having been unsuccessful here, seeks to pursue the path of appeal to the Judicial Committee. It is one thing to say, as was established in Caltex , that there is no inconsistency between different sets of statutory provisions to the extent to which they operate to authorize resort by different parties to quite distinct appellate structures in order to challenge the same judgment. It is quite a different thing to deny the existence of any such inconsistency between different sets of statutory provisions to the extent to which they would, according to their terms, authorize such resort by the same party to both of such distinct appellate structures. Another such difference is that, in the Caltex Case, the questions involved in the appeal to this Court were distinct from the one question which it was sought to have determined by the Judicial Committee whereas, in the present case, it has not been suggested that the issue which it will be sought to have determined by appeal to the Judicial Committee if special leave to appeal be granted differs, in any relevant way, from the issue which it would have been sought to have determined by appeal to this Court. Those differences are, in my view, of such importance as to make the present case plainly distinguishable from the Caltex Case. Yet another difference is that the primary proceedings in the present case, namely the proceedings leading to the defendant's conviction of murder in the Supreme Court of Queensland, were completed before the commencement of the 1975 Commonwealth Act on 8 July 1975. It is, however, convenient to put that difference to one side for the moment and approach the matter as if the proceedings leading to the defendant's conviction had, like the proceedings in the Supreme Court in the Caltex Case commenced after that date.

[57]

While the Judicial Committee and this Court were both part of the one appellate structure in which the Privy Council was preeminent, there was no necessary inconsistency involved in statutory provisions which authorized resort to the appellate powers of both courts to challenge the same judgment. Any potential conflict in the exercise of judicial powers in that context would fall to be resolved by reference to the pre-eminence of the Judicial Committee. Nor is any such inconsistency involved to the extent that the relevant statutory provisions operate merely to enable one party to resort to one or other of the Judicial Committee or this Court in the situation which has existed since two distinct appellate structures replaced the single one which previously existed. So much was established by the Southern Centre of Theosophy Inc. Case [30] . The Caltex Case [31] must be accepted, while it stands, as going further and establishing that no such inconsistency is involved to the extent that those statutory provisions operate to enable a respondent to an appeal in this Court, who has lodged a limited cross-appeal in that appeal, to appeal to the Privy Council from the same judgment but on a question that was not involved in the appeal to this Court. It appears to me however to be plain that inconsistency must be reached at the stage where the relevant statutory provisions would, according to their terms, purport to authorize one party to litigation to resort to both of two quite distinct appellate structures, each leading to a different final court, to attack the one judgment on the same grounds. It is unnecessary to decide, for present purposes, whether any such inconsistency should be resolved by treating the Imperial Acts (and Orders in Council made under them) determining and regulating the jurisdiction of the Privy Council as impliedly repealed to the extent to which they would authorize resort or continued resort to the appellate structure in which the Privy Council is pre-eminent in any matter in which the same party has elected to resort to the appellate structure in which this Court is preeminent to challenge the same judgment or whether the two distinct sets of statutory provisions should be read together so as to preclude resort by one party to either appellate structure after he has already elected to resort to the other to challenge the same judgment. Either way, resort by one party to the appellate structure in which the Judicial Committee is pre-eminent to challenge a judgment of the Supreme Court of a State from which he has already elected to seek, and has been refused, special leave to appeal to this Court would be precluded in any case in which the Supreme Court proceedings were commenced after the commencement of the 1975 Act. I am strengthened in that conclusion by the fact that the Privy Council itself has decided, in Wardrop v. The Queen [32] , that it lacks jurisdiction in such a case. I turn to consider the significance, for the purposes of the present case, of the fact that the defendant's conviction was in proceedings commenced before the commencement of the 1975 Act.

A-G (Cth) v Finch - [1984] HCA 40 - HCA 1984 case summary — Zoe

At a glance

Court

Decision date

Before

Source

Judgment (64 paragraphs)

Parties

Cited By (1)