A-G (Cth) v T & G Mutual Life Society Ltd - [1978] HCA 24 - HCA 1978 case summary — Zoe

CTHHCA

A-G (Cth) v T & G Mutual Life Society Ltd

[1978] HCA 24

High Court of Australia|1978-07-01|Before: Aickin JJ, Jacobs JJ, Sheppard J

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At a glance

Source facts

Court

High Court of Australia

Decision date

1978-07-01

Before

Aickin JJ, Jacobs JJ, Sheppard J

Source

Original judgment source is linked above.

Judgment (160 paragraphs)

[1]

High Court of Australia Gibbs A.C.J. Stephen, Mason, Jacobs, Murphy and Aickin JJ. A-G (Cth) v T & G Mutual Life Society Ltd [1978] HCA 24

[2]

ORDER Motion for injunction refused. Declaration that the provisions of the Privy Council (Appeals from the High Court) Act 1975 do not permit the first defendant T. & G. Mutual Life Society Limited to ask special leave of appeal to Her Majesty in Council from a decision of this Court given on 22nd December 1977 in Appeal No. 220 of 1976. First defendant to pay the costs of the plaintiffs and of the second defendant.

[3]

These proceedings are brought by the Attorney-General of the Commonwealth, and the Commonwealth, as plaintiffs, against T. & G. Mutual Life Society Ltd. ("T. & G.") and T. C. Whittle Pty. Ltd. ("Whittle"), as defendants, to obtain a declaration that the provisions of the Privy Council (Appeals from the High Court) Act 1975 ("the Act of 1975") do not permit the firstnamed defendant to ask special leave of appeal to Her Majesty in Council from a decision of this Court given on 22nd December 1977 in which the firstnamed defendant was the respondent and the secondnamed defendant was the appellant on an appeal from a judgment and order of the Supreme Court of New South Wales, and for an injunction restraining the firstnamed defendant from proceeding further with a petition seeking special leave of appeal to Her Majesty in Council from the aforesaid decision. On 26th May 1976 Whittle commenced proceedings in the Supreme Court of New South Wales against T. & G. seeking declarations as to the construction and effect of a rise and fall clause in a building contract between the parties. Declarations and orders were made by Sheppard J., and from those declarations and orders Whittle appealed to this Court and T. & G. cross-appealed. On 22nd December 1977 this Court gave judgment allowing the appeal in part and dismissing the cross-appeal. On 11th April 1978 the solicitors for T. & G. filed a petition seeking special leave to appeal to Her Majesty in Council from the judgment of this Court.

[26]

At first sight it might appear, as Quick and Garran suggest, that the use of the word "limiting" implies that some matters must be left within the limit. However in the context of s. 74 it appears that it was intended that the Parliament should have the power to limit away altogether the matters in which leave might be sought. It will be observed that the Parliament was not given the power, under the third paragraph of s. 74, to abrogate entirely the prerogative right of Her Majesty to entertain appeals from the Court, since the first two paragraphs of the section preserve appeals in inter se matters which may be brought without further leave if this Court gives its certificate. Also it must have been contemplated that the Parliament might not wish to do away at once with the right to seek special leave in all other cases; it would have been natural for the Parliament to move progressively towards the ultimate goal that judgments of this Court should be final, as it in fact has done. In these circumstances the use of the words "limiting" and "limitation" is not inappropriate to confer a power from time to time to limit the matters in which leave may be brought until no such matters remain. If the section is construed as requiring that some matters, however few and rare, must remain in which special leave may be sought, the result will be absurd and, from a constitutional point of view, valueless. On that construction the Parliament might validly limit the matters in which leave might be sought to matters which in practice would never be likely to arise - for example, to matters arising under a particular treaty which by its nature could hardly occasion litigation, or to matters affecting representatives of a small and remote country with which Australia has no diplomatic relations, or to matters respecting property of such enormous value that even in times of inflation one would be likely to be found to meet the test. The result of the construction suggested by Quick and Garran, and by T. & G. in the present case, would be that for all practical purposes the Parliament would be able to abolish appeals to Her Majesty in Council from this Court (except of course in inter se cases) although it could not do so in form. A construction which would make the validity of a law depend upon the ingenuity of the legislature in this way would serve no constitutional purpose and cannot have been intended by the framers of the Constitution. On the contrary, the only check which was intended to be placed on laws limiting the matters in which special leave might be sought was that provided by the necessity to reserve proposed laws of that kind for Her Majesty's pleasure.

[115]

A delegation, consisting of men who had taken a prominent part in the movement for federation, was authorized to proceed to England, with a view to assisting the passage, without amendment, of the Constitution endorsed by the people. After their arrival in England, a lengthy controversy arose, practically confined to the terms of clause 74. Those who have read the State papers of the time, which are common knowledge on the subject, will know that the objection entertained by Her Majesty's Government to the clause as framed, was largely in respect to the use of the words "public interests". It was from the first conceded, on the one hand, that those who had made this Constitution, were entitled to have it, if possible, adopted with the assistance of Her Majesty's Government, and of the Imperial Parliament, in so far as there was nothing in it which constituted a danger, or might provoke a difficulty with respect to general Imperial interests. On the other hand, it was rightly asserted that the Imperial Government and Parliament stood in the position of trustees of the Empire, and granting the fullest autonomy and self-government to the various colonies in respect of matters purely local, were, nevertheless, charged with the responsibility of seeing that matters which concerned grave public interests outside should form a special charge of the Imperial authorities. That position was asserted by Her Majesty's advisers, and was equally conceded by the delegates. The controversy, then, as to the term "public interests" largely consisted of this, that the legal advisers of the Imperial Government thought the term was too vague to define the class of cases in which there should not be finality in the determinations of the High Court. After very much discussion and negotiation, and the framing of alternative propositions, the terms of the present clause were agreed on, and were subsequently passed as part of the Constitution in substitution for the original clause. It will be evident to anyone who considers what the main controversy was about, that is to say, whether the clause as originally drawn sufficiently protected other parts of the Empire, that the intention was to substitute a provision embodying a due regard to those principles which had been asserted on each side, and conceded in turn by the contending representatives or governments.

[138]

In ss. 58, 59 and 60 of the Constitution a substantial degree of control over the laws passed by the Parliament was retained by the United Kingdom authorities, though in fact no objection was taken to either of those sections. Indeed their form had remained unchanged since the draft prepared by the Convention in 1891. Section 58 provides that when a proposed law passed by both Houses of the Parliament is presented to the Governor-General for the Queen's assent he shall declare, "according to his discretion, but subject to this Constitution, that he assents in the Queen's name, or that he withholds assent, or that he reserves the law for the Queen's pleasure". The quoted part of s. 58 is in substantially the same form as s. 31 of the Act for the Government of New South Wales and Van Diemen's Land 1842 (5 & 6 Vict. c. 76), save for the significant omission of any reference to Her Majesty's instructions. In that Act the phrase had been "according to his discretion but subject nevertheless to the provisions of this Act and to such instructions as may from time to time be given in that behalf by Her Majesty Her Heirs or Successors " A similar provision was included in the Act for the better Government of Her Majesty's Australian colonies 1850 (13 & 14 Vict. c. 59) which created Victoria as a separate colony. The Constitution Statute of New South Wales (18 & 19 Vict. c. 54) and the Constitution Statute of Victoria (18 & 19 Vict. c. 55) continued the operation of the provisions requiring the Governor to assent to or reserve Bills in conformity with Her Majesty's instructions (see Quick and Garran, pp. 690-691). The problems which arose with respect to the general form of instructions to colonial governors and the text of those instructions are discussed in Quick and Garran (pp. 392-400 and 690-691). Those instructions had been in a very restrictive form until 1892 in the Australian colonies but were then changed as a result in part at least of substantial criticism in 1887 by Higinbotham C.J., when Attorney-General of Victoria. The new form however still retained a list of the kinds of Bill which the Governors were required not to assent to without reserving them for Her Majesty's instructions including "any Bill of an extraordinary nature and importance, whereby Our prerogative or the rights and property of Our subjects not residing in the colony, or the trade and shipping of the United Kingdom and its dependencies, may be prejudiced". A different form of instructions however had been used in relation to Canada since 1878 which omitted the clause which prescribed the classes of Bills which were required to be reserved for Her Majesty's assent. (See Todd's Parliamentary Government in the British Colonies, 2nd ed. (1894), p. 163). It was expected by Quick and Garran (p. 691) that the instructions to the Governor-General of the Commonwealth would be in the Canadian form and they comment that "Indeed, according to a strict interpretation of sec. 58 of the Constitution of the Commonwealth it would not be legal for Her Majesty, through the Secretary of State for the Colonies, to fetter the discretion of the Governor-General by instructions such as those which, with unquestionable legality, were given under the authority of the Act 5 and 6 Vic. c. 76, ss. 31 and 40. The Governor-General is authorized to assent in the Queen's name to Bills, to withhold the Royal assent to Bills, or to reserve Bills for the signification of the Queen's pleasure, "according to his discretion," and subject only to the Constitution; not subject to instructions, as under the Act of 1842." It is to be observed, however, the assent by a colonial governor contrary to his instructions did not, at least after 1865, produce invalidity in view of the provisions of the Colonial Laws Validity Act 1865 which applied to past as well as future colonial laws.