Ah Yick v Lehmert [1905] HCA 22

The Constitution (63 : 64 Viet., c. 12), secs. 71, 73, 1903 (Vo. 6 of 1903), secs. 30, 38, 34, 39, 63, 7 (No.1105), se. 127 - A uthority of Parliament to confer appellate federal juriedi tion on other Court than High Court - Whether appellate jurisdiction conferred om State Courts - Offence against Commonwealth Law - Summary Conviction -

Appeal to State Court - Remedy where Court denies jurisdiction - Mandamus gyipth 63, and Appeal, Barton d.

5, 16, 77 - The Judiciary Act H.C. or A, 80 - Juatices Act 1890( Victoria) 1905. j Mexnovn August 2, 3, 7.

Where a Court of a State declines jurisdiction in a matter as to which it is invested with federal jurisdiction, the remedy is by recourse to the appellate Jutisdiction of the High Court.

'The federal jurisdiction which Parliament is by sec. 77 of the Constitution

suthorized to confer upon the Courts of the several States, and upon federal

Gourts other than the High Court, includes both original and appellate Jotisdiction,

See. 39 of the Judiciary Act 1903 is a valid exercise of the « conferred, and under it the Courts of the several States havefederlan jurisdiction, as regards the matters enumerated in secs, 75 aul eae Constitution, to the same extent that, and subject to the same o under the State laws they have appellate jurisilietion im matters to wha State laws apply.

Held, therefore, that © person being convicted in Vietoria by Magistrate of an offence under see. 7 of the Zmmigration Restriction Au iy and by see. 127 of the Justices Act 1890 (Vict.), an appeal lying f conviction by a Police Magistrate to a Court of General Session, sud may appeal to a Court of General Sessions,

Manpamus. Before James Anderson Panton, Esq., a Police Magistrate, 'Ah Vick was, on the information of Albert Lehmert, charged

and being convicted, was ordered to be imprisoned for fom days. The defendant gave notice of appeal against this conve tion to the Court of General Sessions under the provisions of the Justices Act 1890 (Victoria). The appeal coming on for h before His Honor Judge Johnston, Chairman of the Court of General Sessions, objection was taken that the Court had m jurisdiction to entertain the appeal, inasmuch as the matter being. one of federal jurisdiction, an appeal could only be had to High Court. On this ground the learned Judge held that he had no jurisdiction. An order nisi was then obtained from th High Court calling upon the learned Judge and the informant show cause why a writ of mandamus should not issue to compl the learned Judge to hear and determine the appeal. :

Coldham (with him Ah Ket), for the defendant, moved theo der absolute.

Harrison Moore, for His Honor Judge Johnston. 'The jurist tion under which the Police Magistrate acted is{eonferred by 68 of the Judiciary Act 1903. Two questions arise, whether any right of appeal was given by that Act, and if so, hed t Court of General Sessions jurisdiction to entertain the ah " See. 68 deals exclusively with original jurisdiction, and not mi appellate jurisdiction, Sub-see. (3) of that section is definite

":0LR] OF AUSTRALIA. the only person who can deal with such a matter as the present, jsone of the persons therein described. Sec. 72 of the Judiciary '4e,1903 deals with appeals in cases of indictment, but if sec. 68 gives an appellate jurisdiction, it would by sub-see. (2) (c) bring jn the appellate jurisdiction of the State Courts as to indictments, "ngite of sec. 72. By sec. 4 of the Punishment of Offences Act 1W0l, which was passed as a temporary measure until the tstablishment of the High Court, an appellate jurisdiction was given to the Courts of the States in such a matter as the present. Itis impossible to suppose that the legislature intended the same resilt to follow from the totally different provisions of the Judiciary Act 1903, If sec. 68 has nothing to do with appeals, tie appellate jurisdiction of the Court of General Sessions and theright to appeal must be sought elsewhere. Sec. 39 of the Judiciary Act 1903 confers certain federal jurisdiction on the eyeral State Courts. It is in a Part of the Act distinct from that jnwhich see: 68 is. Part X.,in whieh see, 68 occurs, deals through- out with matters which are made offences by the laws of the Com- monwealth, and deals with them exclusively and exhaustively. Sec.39 deals with civil jurisdiction, and with certain criminal juris- diction in matters as to which the State Courts would ordinarily have jurisdiction, but in which some federal matter intervenes which transfers the case to federal jurisdiction. The present offence iswholly a creature of federal Statute, and any jurisdiction as to itis given by sec. 68 and not by sec. 39. If sec. 39 did include "tise like the present, it might bring into operation the whole of the State laws respecting appeals in cases of indictment, although the appellate jurisdiction in criminal matters is dealt with tshaustively by sec. 72. There is no doubt that the appellate jurisdiction eontended for in the present case is within the words _ofsee, 39, but a consideration of other parts of the Judiciary

-Attshows that that section is not to have such a wide meaning. _ S39 merely deals with the transformation of State jurisdiction _iitofederal jurisdiction ; if it was intended to have the wider Meaning contended for, sec. 68 would be superfluous. Even if 39 gives this appellate jurisdiction, no right of appeal is given Wit See. 4 of the Punishment of Offences Act 1901 did give

4: point, using emphatic negative words, and providing that W.C.or a.

that right in definite words. Unless it is given by Status g plain words no right of appeal exists; its existence will ng presumed: R. v. Justices of Surrey (1). See, 89 confer oriag jurisdiction only, and not appellate jurisdiction, Tt is one af « set of sections dealing with original jurisdiction only, the applay jurisdiction of the High Court being dealt with elsewhe: Assuming that see. 39 is effective to incorporate the appl provisions of the State laws and also the provisions of the laws giving the right of appeal - in this case see 127 of the Justices Act 1890 (Vict.) - the penalty imposed by see. 7 of the Immigration Restriction Act 1901 is of such a peculiar nator that it does not fall within see. 127 of the former Act. It ismo nearly like the penalty referred to in the proviso to that seetin As to the power of this Court to issue a prerogative writ of mn damus, it may be that under sec. 75 (v.) of the Constitution that power only exists where the writ is sought against an offer o the Commonwealth. [He also referred to Curtis's Jurisdictig of Courts of United States, pp. 67, 68.]

Cussen (with him Power), for the respondent Lehmert. An appellate jurisdiction is not conferred on a Court of Gene Sessions by sec. 39 of the Judiciary Act 1903, and if it is pur ported to be conferred, Parliament has gone beyond its powers under the Constitution. The Customs Act 1901, the Bacise Ad 1901, and the Distillation Act 1901, all contained special provi sions for appeals to the Courts of the States. Then the Pun ment of Offences Act 1901 by sec. 4 gave an appeal to the Courts of the States as to offences against laws of the Commonwealth at a time when Parliament was contemplating the ereation ofthe High Court. It is a reasonable inference from prior legislation and from the terms of the Judiciary Act 1903, that the intention of the legislation was that the High Court should be the only Court of Appeal for offences against the Commonwealth I That inference should be drawn even though the terms of see. 39 (2) of the Judiciary Act 1903 when read by themselte appear to give an appellate jurisdiction to the Courts of States. Secs. 68 to 72 of the Judiciary Act 1903 support this

forming a group of sections apart from sec. 73, which with appellate jurisdiction, no authority is by sec, 77 ven to Parliament to invest the Courts of the States, or "the Courts created by Parliament, with appellate jurisdiction, The use of the words " with respect toany of the matters men- tioned in the last two sections," ie. with respect to the matters javhich the High Court is given original jurisdiction, shows that 'deily, The meaning of those words is that Parliament may

'Courts with power, to do what the High Court can do under secs. "Tpand 76.

• (Gnurrrrit C.J. - Sec. 71 seems opposed to that view. It says tat the judicial power of the Commonwealth, which must include ypellate as well as original jurisdiction, shall be vested in the High Court and "in such federal Courts as the Parliament es and in such other Courts as it invests with federal juris- ion."} 'That section must be controlled by the subsequent sections. 8.71 only deals with the creation of Courts other than the ligh Court, while sec. 77 provides for the matters with which those Courts are to deal. The Judiciary Act 1903 carries out view. Part IV. deals with original jurisdiction of the High 'Court, Part V. with its appellate jurisdiction, and Part VI. deals th exclusive and with invested jurisdiction, The exclusive 'jistiction must be original jurisdiction only, and invested juris- lition was also intended to be original jurisdiction only, In Quick ¢ Garran's Australian Constitution, at p. 802, the view taken that the invested jurisdiction includes both original and 'gpellate jurisdiction, and Martin v. Hunter's Lessee (1) is cited in apportofit. So also in Clark's Constitutional Law, 2nd ed., p. 168, 'ting Bors v. Preston (2). 'The views of these writers are based : American cases. No doubt under the United States Constitu- Nmaheirachy of Courts having appellate jurisdiction has been atel. The language of that Constitution, however, as to the

vy, A right of appeal must be given by something like H.C. or a.

tralian Constitution. [He also referred to Holt's Con Jurisdiction, pp. 8, 156.]

jurisdiction merely because it would have original jurisd over the parties. That was the case in Cohens v. Virginia( Put shortly, the decisions are to this effeet - Where original ja

diction is granted to the Supreme Court, that Court may

aliunde] If Parliament has power to create a hierareby of Cours it not follow that it will take the hierarchies of Courts exist the several States. It may choose to give a right of appeal a federal Court to a State Court. Without the Judiciary Acll

See. 39 (2) (b) of the Judiciary Act 1903, therefore, seems to unnecessary, but if any conclusion is to be drawn from it,it ports the view that it was intended toconfer only original ju tion. It was intended to cover appeals from decisions, notot Jul of the Supreme Court, but of Courts outside the Supreme Cou was never intended by see. 73 of the Constitution that, Pali might take away the appellate jurisdiction of the High Cou give it to some other Court. That undoubtedly anight be the: ; if the contention for the appellant were correct. Parliament take away the whole appellate power of the High Courh ee as to appeals from the Supreme Courts of the States, and. give that appellate power to a State Court. By see. 39 (2)( of the Judiciary Act 1903 the persons therein men

srisiietion upon the Courts of the States. 'The construction put the respondent upon sec. 77 of the Constitution is too narrow. requires the insertion of the word "original" before the word

{misdietion" wherever it ovours in that section, Where it was tended to distinguish between appellate and original jurisdiction ithas been done in specific language. The judicial power of the monwealth - and that includes appellate as well as original wwer - is by sec. 71 vested not only in the High Court, but also such other Courts as Parliament creates, and such other Courts 1sParliament invests with federal jurisdiction. If the respondent's jew is correct, Parliament cannot invest either State Courts, or federal Courts of its own creation, with appellate jurisdiction. iy see, 71 of the Constitution nothing is created or done; the sation is merely matter declaratory. Sec. 51 (xxxix.) gives Par- lament authority to make laws as to matters incidental to the exeeution of any power vested by the Constitution in the federal jndieature, 'The determination as to which of the Courts created ly Parliament, or invested by it with federal jurisdiction, shall exercise original jurisdiction, and which appellate jurisdiction, is matter incidental to the execution of a power vested by the Constitution in the federal judicature. Sec. 77 was intended to over the difficulties which arose in the United States. The Parliament has effectively given an appellate jurisdiction in this matter to the Court of General Sessions of Victoria. The words "feleral jurisdiction" in see. 39 of the Judiciary Act 1903 are in the same sense as they are used in sec. 7 of the Constitu- 'tion. The intention of Parliament was that the several Courts of the States should hear and determine matters as to which they fre given federal jurisdiction in the same way as they would har and determine matters as to which, as State Courts, they had Itisdiction. The words in sec, 39 (2) of the Judiciary Act 1903 within the limits of their several jurisdictions" mean within thelimits of their jurisdictions as to State matters. The word "several" is applied both to Courts and jurisdictions, and indicates

sone designate, and come within the prineiple that they are B.C. or A.

(oliham in veply. Parliament has power toconfer an appellate 1," gup

H.C. oF A. the several jurisdictions of each Court. 'There is nothi

section itself which suggests a limitation to original jurists It is suid that see. 39 must be limited to original j because secs. 34 and 35 deal with appellate jurisdiction, sections do not confer jurisdiction, but limit the jurisdi ferred by the Constitution, see. 73. The only conclusion drawn from Part V. of the Judiciary Act 1903 is in the ap lant's favour. A jurisdiction to hear the appeal is conferred this ease on the Court of General Sessions. 'The argument th there is a presumption that no right of appeal exists unless it given in express terms has been pushed too far, »

Whether the appellant has gone to the right Court or not, is a person who has a right to appeal: The Constitution, ee 7 If he is such a person, why should he not go to the Court has jurisdiction to entertain this particular class of appeals? Parliament intended by the Judiciary Act 1903 to do away the right of appeals to the State Courts in federal matters,

Customs Act 1901, the Beer Excise Act 1901, the Distillation 1901, and the Excise Act 1901, which give a right of app certain matters to the State Courts. By sec. 79 of the Judiciary Act 1903 it was intended not only that the laws of procedi each State, but also those laws giving substantive rights, sh apply to Courts exercising federal jurisdiction. 'The nature of th penalty imposed by sec. 7 of the Immigration Restriction Ad 1901 does not bring the case within the proviso to see. 127 of t Justices Act 1890 (Viet.). The imprisonment is absolute in' first instance, and there is no order to find security. Mandama is the proper remedy in this case. Sec. 80 of the Judiciary 4 1903, which directs that, so far as the provisions of the laws 0 the Commonwealth are inadequate to provide adequate reme! the common law of England shall govern all Courts € federal jurisdiction, was intended for this very class of

appellate jurisdiction of this Court. The granting of writs of juandamus, prohibition, and habeas corpus at common law may be iction, and jn another as the exercise of appellate jurisdiction. When jere is a general appeal from an inferior Court to another Court, Court of Appeal can entertain any matter, however arising, shich shows that the decision of the Court appealed from is 'enoneous. The error may consist in a wrong determination of a y before the Court for its decision, or it may con- sis in an assertion by that Court of a jurisdiction which it does 'not possess, or it may consist in a refusal of that Court to exercise ajurisdiction which it possesses. In all these cases the Court of Appeal ean exer For instanee, if the Court of Appeal in England appeal from the King's Bench Division in a case

in which no appeal lay, the remedy would be by appeal to the House of Lords, and that tribunal, as it has, I think, done in some

instances, would allow the appeal and reverse the decision of the Court of Appeal, on the ground that it had sought to exercise a utisdiction which it did not possess. In the same way if the Court of Appeal declined to entertain an appeal from the King's Bench Division in a case in which it could entertain an appeal, the House of Lords, as an appellate tribunal, would set it right. lese considerations show that this is really an invocation of the ppellate jurisdiction of this Court. It was so held in the United States in 1803 in Marbury v. Madison (1). No question there- fore arises as to the validity of sec. 33 of the Judiciary Act 1903, which provides that "The High Court may make orders or direct, the issue of writs - («) commanding the performance by any Court invested with federal jurisdiction, of any duty relating to Neexercise of its federal jurisdiction ; or (b) requiring any Court abstain from the exercise of any federal jurisdiction which it toes not possess; or . . . (e)of mandamus." It was pointed cut in Parkin v. James (2) that the jurisdiction of the High

H.C. oF A. Court is conferred by the Constitution and not by the Ji

Act 1903, and see. 33 therefore ought not to be construed ag. ferring a new jurisdietion on this Court, but merely asadi as to the manner in which its jurisdiction may be This is sufficient to show that no difficulty exists as tothe ig dicton of this Court to entertain an appeal in the presale and that it is quite immaterial whether this motion i rgured an application for a mandamus, or as an application for anon

from a decision of that Court refusing to entertain the follows incidentally from what I have said, that in this

necessary to move for an order nisi for a mandamus, andt the proper title of the matter is Ah Vick v. Lehmert,

federal jurisdiction conferred upon them by Statute, It is m seriously in controversy that, if the offence charged in the before us had been an offence created by State law, an appa would lie to the Court of General Sessions. By that law ax appeal to the Court of General Sessions is given from a convietim of a Court of Petty Sessions imposing a penalty exceeding & or a term of imprisonment, with a proviso that an appeal do not lie where imprisonment is adjudged for failure to eompl with an order for the finding of sureties or for the giving of aay security. The appellant in the present case was sentenced term of imprisonment. A point was made that, owing to peculiar language of sec. 7 of the Immigration Restriction A¢ 1901, an appeal might not lie from a conviction under it Court of General Sessions. However, the argument was seriously pressed, and I do not think there is anything init

Whether the Court of General Sessions had jurisdietia

and of the Judiciary Act 1903. The Constitution (see. a provides that: "The judicial power of the Commonwealth sh be vested in a Federal Supreme Court, to be called the H Court of Australia, and in such other federal Courts as the P

ribute of sovereignty which must of necessity be exercised by 'ene tribunal, that that tribunal must be constituted by the 'overeign power, and that the limits within which the judicial 'gar is to be exereised by the tribunal must be defined. In the "ase of the High Court, the extent to which that Court may exer- se judicial power is defined by the Constitution; in the ease of "ther Courts it is not defined by the Constitution, and must, again "i{neeessity, be defined by the Commonwealth law which creates "those Courts or invests them with federal jurisdiction. 'The term "Sfederal jurisdiction " means authority to exercise the judicial "over of the Commonwealth, and again that must be within limits "prescribed. 'Then "federal jurisdiction" must include appellate _ jurisdiction as well as original juri; diction, The whole scheme of the Constitution assumes that the judicial power includes both in the ease of the High Court, and from the history of the Constitu- tio and the practice in English-speaking countries, it must be taken for granted that the judicial power was known by the "framers of the Constitution to include both, and that those framers intended that the judicial power might be exercised by Courts of triginal jurisdiction or by Courts of appellate jurisdiction. Then ste, 73 of the Constitution defines the appellate jurisdiction of the High Court. Amongst other matters of appellate jurisdiction the "High Court is authorized to hear appeals from all Courts having _ federal jurisdiction, "with such exceptions and subject to such _ Ngulations as the Parliament prescribes," and none have been pre- tibed which affect the present case. Sec. 75 defines and enumer- _ ates five classes of cases in which the High Court has original jmisdiction, and sec. 76 four others in which Parliament may confer original jurisdiction upon the High Court. In all other

• huatters, as at present advised, I think the High Court has no original jurisdiction, and cannot, gud High Court, have it. Then _ "t. 77 provides that Parliament may make laws - "(1.) Defining
• the jurisdiction of any federal Court other than the High Court,"
• td "(111 Investing any Court of a State with federal jurisdic- tion" Now, the power to ereate a federal Court depends upon

vatition." I pause there to remark that judicial power is an H.C. or a.

ment to say what jurisdiction each Court shall have, ty see. 71 into consideration, see. 77 (1.) means that the Pars may establish any Court to be called a federal Court, and give it jurisdiction to exercise any judicial power of the Common wealth, which the Parliament may think fit to confer unm either by way of appellate or original jurisdiction, Subse must receive a precisely similar interpretation, Parliament invest any Court of a State with authority to exercise fede judicial power, again to the extent prescribed by the Sta There is nothing to restrict that judicial power to original

diction any more than to appellate jurisdiction, and there reason why there should be a restriction. 'There can be no doth that Parliament might think fit to invest one Court exelusvdy with original jurisdiction, another with appellate jurisditon and another with both. There is nothing to limit that

y be conferred on any Court which Parliament thinks fit invest with federal jurisdiction.

Those being the powers of Parliament, we come next to sec 3

exercise its powers, and the question is, what is the effeet of th enactment? There is no doubt that sec. 39 is framed for th

dictions, whether such limits are as to locality, subject-matter, t otherwise, be invested with federal jurisdiction, in all matters whieh the High Court has original jurisdiction, or in which on inal jurisdiction ean be conferred upon it, exeept as provide the last preceding section, and subject to the following eon

words "in all matters in which the High Court has original j % diction, or in whieh original jurisdiction ean be conferred uponit, are mere words of reference to the matters enumerated in sees 7? and 76 of the Constitution. With respect to those matters, those only, the several Courts are invested with federal Nair tion. The circumstance that the words " original Jurisdiction

used twice in see. 39 of the Judiciary Act does not in any

ence, We start then with this - as to the nine classes of cases enumerated in secs. 75 and 76 of the Constitution the several Courts of the States are invested with federal jurisdiction. I have already pointed out what "federal jurisdiction" means. But the _jarisdietion with which those Courts are invested is qualified by hewords " within the limits of their several jurisdictions" The 'mactment is general and applies to all the Courts of all the States. Some of the Courts of the States have original jurisdiction only. 'Two at least of those Courts have appellate jurisdiction only. A geat many have both original and appellate jurisdiction. 'This 'ment relates to all the Courts of the States, and may be read ifall those Courts were enumerated. Let us take the Court of General Sessions of Victoria and apply the section to this Court,

• and it will read thus : - * Courts of General Sessions of the State {Victoria shall within the limits of their jurisdiction be invested ith federal jurisdiction in all matters enumerated in secs. 75 and 6 of the Constitution." Then we have to inquire what is the juris- distion of Courts of General Sessions in Victoria? On that inquiry we find that they have both original and appellate jurisdiction. hy should it be said, when those Courts can exercise the judicial power of the Commonwealth within the limits of theirjurisdietion, that it is to be limited to original jurisdiction, and is not to include

appellate jurisdiction ? I can see no sufficient reason for so limit agthewords, In my judgment, sec. 39 confers authority on each e Court to exereise the judicial power of the Commonwealth 'inthe enumerated classes of cases, as to all such matters as are nother respects within the limits of its jurisdiction as defined by the State laws by which it is established, And I think that authority is conferred to the same extent, and for the same oses, and is to be exercised in the same manner, as if the Court had been established as a federal Court with jurisdiction to 'ereise the federal judicial power to the extent, and for the poses, for which it was actually established. That being so, 'tappears to me that, on the plain words of see. 39, the Court of General Sessions had authority to exereise its appellate jurisdie- om, and to hear the appeal from a Police Magistrate, with regard 'Wanoffence against the Zmmiyration Restriction Act 1901. That

Jinit the subject of the power - the words are mere words of refer- H.C. oF A.

H.0.0r A. appears to me the literal construction of see. 89, an ii

sible to arrive at any other eonelusion without impaing, upon the words which is not to be found within the setin Relianee, however, has been placed upon previons lesan Act called the Punishment of Offences Act 1901, passed inD 1901, and which was a temporary

Act, contained a provision sec. 2 that: - *The law in each State r specting the arrest a custody of offenders, and the procedure for their summary ci vietion or for their examination and commitment for til q indictment or information and for holding aceused 'persons to hai shall apply and be applied so far as they are applicable sons who are charged with offences against the laws of the Commonwealth committed within the State." It further pr vided by sec. 3 that the several Courts and magistrates of State, exercising jurisdiction as to the matters mentioned i should have the like jurisdiction with respect to persons charg with offences against the laws of the Commonwealth, with apm

trate of the State who is specially authorized by the Govern General to exercise such jurisdiction." See. 4 of the Actexpr gave an appeal from any Court of a State exercising juris under the Act "to the Court and in the manner provided by th law of that State for appeal from the like convictions jug sentences or orders in respect of persons changed with oft against the laws of that State." 'That Act was a temporary

to cease to have effect npon the establishment of the High Gm It was therefore conferring federal jurisdiction of a certain dis upon Courts of the States, and, as by the Constitution a appeal from the decisions of such Courts lay to the High Court, there being no High Court then constituted, result would have been that, if see. 4 had not existed, would have been no practicable appeal - it would have been appeal in name, but toa non-existent Court. Tt was ne

therefore, to make provision for some appeal, and it was natural that that provision should be temporary, becaus a8 as the High Court was established, it beeame an appellate 0

tion of the High Court were contemplated and proposed before per 1901. When the Judiciary Act came to be passed in 903, it was no longer necessary to provide special Courts of ppeal from summary convictions by State Courts. Whether

• Courts of Appeal should be created or not was a matter for consideration of Parliament. It might have been contented toleave appeals to the High Court, or it might have created other termediate appeal Courts.

TE the construction of sec. 39 of the Judiciary Act 1903 which have given be correct, the Parliament has adopted the latter course, and has conferred upon State Courts which have appellate jurisdiction similar appellate federal jurisdiction in the enumerated asses of cases. So that no inference can be drawn from the "aistence of the appellate jurisdiction created by the Punishment "of Offenders Act 1901, and the fact that the language creating "that jurisdiction is not repeated in terms in the Judiciary Act 1003.

~ Astronger argument was drawn from see. 68 of the Judiciary et 1903, whieh, in effect, repeats the provisions of sees. 2 and Sof the Punishment of Offenders Act 1901, but does not repeat those of sec, 4 of that Act. Now, if secs. 68 and 39 of the Judiciary Act 1903 covered precisely the same ground, there might be some force in that argument, though it would still be entrary to the accepted canons of construction to hold that, where there are two affirmative enactments in the same Act each dealing with the same matter, one is to be taken as negativing the other. Bit on examination it will be seen that secs. 68 and 39 probably donot cover the same ground. See. 39 applies only to the nine tdhsses of cases enumerated in sees. 75 and 76 of the Constitution. Ste. 68 applies to all persons charged with offences against the laws of the Commonwealth. Now, unless it ean be asserted that there can be no offence against the laws of the Commonwealth Thich does not fall within one of the nine classes of cases eiumerated in secs. 75 and 76 of the Constitution, see. 68 of the Tuticiary Act 1903 was necessary. I should be very sorry to 'firm that secs. 75 and 76 of the Constitution do cover every ible case of offences against the laws of the Commonwealth.

all these cases. Now, the Judiciary Act 1903 and the eonsti- H.C. or A.

H.C. or A. 'They cover every offence against the Statutes of the Com

whether those sections cover them. At any rate that poin not so clear as not to admit of argument. In that view se

For these reasons I am of opinion that the Court of Gen Sessions had jurisdiction to hear and determine the appeal fm the Police Magistrate, and ought to have entertained it therefore that this appeal should be allowed.

Barron J. Iam of the same opinion. His Honor the (hi Justice has said that this is a case of the exercise of ap rather than of original jurisdiction. While agreeing with Ido not for a moment say that this is not a case in which mandamus could issue from this Court. I am not sure it i actually necessary to make the special provision contained in see 33 of the Judiciary Act 1903 authorizing the issue of writed mandamus, It is established in the case of Marbury v. Madi (1), that, if a mandamus is sought from a Court of appellat jurisdiction, it must be shown that its grant is an exercsé 0 appellate jurisdiction, The position is clearly stated in Quid and Garian's Constitution of the Australian Commonwealth at p. 779. It is as follows: - "The principles established in Marhin y. Mudison are very clear. Where a writ of mandamus is sough the first question is whether 'the principles and usages of law' warrant the issue of a mandamus as the proper remedy in the _ and if that question is answered in the affirmative, the questa remains whether the Supreme Court has jurisdiction over Ha parties or the subject-matter. If the mandamus is sought agua a non-judieial officer, it is an exercise of original jurisietive and the Court can only act if the matter comes within scope of its original jurisdiction." (That is the manda provided for by sub-see. (v.) of see, 75 of the Australian stitution.) "If the mandamus is sought against @ Court it

{the matter comes within the scope of its appellate jurisdiction."

represents the law as laid down in Marbury v. Madison (1). Ofeouse it is well known that there is a difference between our Constitution and that of the United States, because in the "former, original jurisdiction is by see. 75 (v.) given to the High (Court in matters in which mandamus is sought against a non- juiiloffcer of the Commonwealth. 'Thatease was not provided forin the United States Constitution, and hence the decision in 'Morhury v. Madison that mandamus to a non-judicial officer yas outside the powers of the Constitution, and that therefore the Act of Congress purporting to authorize the grant of such

amandamus was not valid. That additional jurisdiction, how- 'wer, being given by our Constitution, it seems to me that there is 'ucthing in the contention that, as sub-see. (V.) of sec. 75 gives 'riginal jurisdiction to the High Court in that particular class of 'mandamus, it has an exclusive effect as to other cases of mandamus. ny opinion it is clear that sec. 75 (v.) was inserted to prevent -doabts from arising by reason of the decision to which I have referred, and that it has no other effect. than to add a new and iistinet power to the powers which the High Court inherently ossesses - I mean those which are necessary to secure that any other Court created or invested with federal jurisdiction by the 'Parliament does not either exceed, or deny the exercise of, its jurisdiction,

Passing to the main contentions in the case, it is argued on Tehalf of the respondent that sec. 68 of the Judiciary Act duals exclusively with original jurisdiction, and not with any "appellate jurisdiction, and that sub-see. (3) of that section in par- 'titilar deals exclusively and exhaustively with the jurisdiction 'ofthe enumerated persons in respect of summary convietions, &e., "Stelling us that it is dealing with original jurisdiction only. The words of the sub-section seem strongly to support that tention, After the provisions of sub-sees. (1) and (2) applying State laws respecting the arrest and custody of offenders, their 'Summary conviction, their examination and commitment for trial, 'ud their trial and conviction on indictment, to persons charged

smexereise of appellate jurisdiction, and the Court can only act H.C. or,

ing upon the several Courts of the States, exercising jy Gietion in respect of those matters, a like jurisdiction inn, of offences against the laws of the Commonwealth, sub provides that "such jurisdiction shall not be judiealy

with respect to the summary conviction or examination commitment for trial of any person except by a Stipend Police or Special Magistrate," &e that sub-section are clearly such auth jurisdiction, and do not include chairmen of General Sein nor does their enumeration include the name of any jul authority upon whom it might be expected that appellate diction would be conferred. That being so, it seems clear th respondent has adopted the right construction of see. 68, Bul think that one strong difference between secs. 68 and 39/is sec. 6S does deal with matters of original jurisdiction, not sarily only with those enumerated in sees, 75 and 76 Constitution, while sec. 39 goes far beyond that purpose, The next matter to which the respondent's counsel refers is Punishment of Orfences Act, passed in 1901 and to cee have effect upon the establishment of the High Court, and ther fore now spent. It is pointed out that sees. 2 and 3 of that Ad deal with the same matters as are subsequently dealt with 68 of the Judiciary Act, and in almost the same words see. 4 of the Punishment of Offences Act 1901 clearly eonferrel appellate jurisdiction on State Courts, and it is argued that t absence of such a section from the Judiciary Act leads to th implication that no appellate jurisdiction is in such matters om ferred by the latter Act. But I am of opinion, as will be # that sec. 39 of the Judiciary Act was designedly passed to the entire ground of see. 4 of the Punishment of Ofencs At which it was therefore unnecessary to repeat. Flee Coming then to see. 39 of the Judiciary Act, the main sili of contest in this case, it is contended that it does not deal wit the same subject-matter as sec. 68 of the same Act, 'The offi it was said, was created by a Commonwealth Statute, and, if sec. 39 deals with original as well as appellate J tion, it is said that it does not give any right of apres

md 76 of the Constitution, and that, assuming see. 39 (2) to qubrace all the matters as to which an appellate jurisdiction is given to State Courts, it cannot be shown that there was any jntention to confer this right of appeal. Let us turn to the mode which sec. 39 is expressed. The second sub-section, which js in question here, provides: [His Honor read the sub-section andeontinued.] Let us consider from what souree see. 39 (2) triginates, It is an exercise of the power given by see. 77 of the Constitution. In sec. 75 of the Constitution there are enumerated thematters in which the High Court is, as soon as constituted, to "have original jurisdiction. In sec. 76 there are enumerated other "matters in which Parliament is given power to legislate so as to confer original jurisdiction upon the High Court, Then sec. 77, the obvious source of sec. 39 of the Judiciary Act, is as follows: (His Honor read the section and continued]. See. 39 (2) of the Juliviary Act is unquestionably, and upon the very face of it, an " exttise of the power given by sec. 77 (3) of the Constitution to "the Parliament to make laws investing the Courts of the States "with federal jurisdiction. 'Che expression of sec. 39 (2) which thiefly calls for examination is the term "federal jurisdiction," tnd in the absence of any context in the Judiciary Act or in the

• Constitution to explain its meaning, and, in the absence of any figment to the contrary, one may take it that it is used in that "setion in the same sense as in the Constitution. What does it mean in the Constitution ? It is rightly pointed out that, where the United States Constitution gave, in Article IIL, sec. 2 (2), _miginal jurisdiction in some matters and appellate jurisdiction in others, a grant of appellate jurisdiction in those matters as to which original jurisdiction was conferred could not be implied, and that original jurisdiction eould not be implied as to those matters in which appellate jurisdiction was given. As to that there is no foubt, Ido not from that derive - and I do not think counsel asked us to derive - any argument in favour of the view that the &xpression " federal jurisdiction" was limited exelusively co Sriginal jurisdiction, 'That expression must include primd facie AN jurisdiction within the limits of the judicial power. 'There ay be a context in various cases of the use of that term which

ha ease as this, which has nothing' to do with secs, 75 H.C. or A.

will limit its relation to that judicial power wi always be exercised. But judicial power its

elf, apart from ay limits imposed on its application by

Acts of Parliament, mist} understood as including original and appellate jurist, the words "federal jurisdiction," used without qualification, be limited to original or appellate jurisdiction, The eon doubt, may furnish us with means of determining wheth federal jurisdietion granted is original, or appellate, or both ag may be. Now, how is it in the case of see. 39 of the Judi Act? Tt has been argued that the federal jurisdiction is in th section, so to say, ent down, so as to mean original juri only, by the operation of the words which follow the term vi "in all matters in which the High Court has original jursdiet or in which original jurisdiction ean be conferred upon it" Ts unable to see that federal jurisdiction, given in matters in which{h High Court has original jurisdiction, is necessarily limited in exercise to original jurisdiction. 'These words of reference do m0 appear to do more than define the subject matters - the classes o cases, - and to hold that they confine the federal jurisdiction to cases of original jurisdiction would not be a reasonable interpreta tion, unless we found something in the context which tends show that the words are not used merely in reference to subject matter, but also for the purpose of limiting the jurisdiction it and Ido not find anything in the language that carries th implication. If we look at sec. 77 of the Constitution, we some light thrown upon the matter. In that section, under whieh sec. 39 of the Judiciary Act is enacted, the opening words con- ferring power upon the Parliament, are, " with respeet to any of the matters mentioned in the last two sections." Now, there if no doubt that, with respect to the matters referred to in oa two sections, the High Court has or ean have original ju diction only, and it is only by virtue of see. 73 that appellt jurisdiction over the original jurisdiction exists in the High Court in those matters. But, looking at the plain language of see 77) it deals with matters enumerated in sees. 75 and 76, matters arising under any treaty and so on right down the category of them See. 77 does not therefore limit the power of Parliament oe laws to the power of conferring original jurisdietion, but it limits

{tat power to the subject-matters mentioned in these two sections, and 76, which is an entirely different thing. 'That being the ope of the authority conferred by sec. 7 for sec. 39 of the Judiciary Act, we have to look at the meaning of the words " in silimatters in which the High Court has original jurisdiction, rin which original jurisdiction can be conferred upon it." Tf the limitation contended for does not exist as to sec. 77 of the Constitution, was it intended to do any more in sec. 39 of the Judiciary Act, by the words of reference I have last read, than to deal with the matters mentioned as subject-matters in secs, 75 ind 76 of the Constitution? 'The words at the beginning of sec, Tare a short form to indicate all these subject-matters, and that isalso the sense of the expression used in see. 39 of the Judiciary Ad. Itis difficult to contend that, in the words in see, 39 used by 'way of description, there is any effective limitation upon the words "federal jurisdiction" in that section which is not imposed on the same words by the equivalent expression at the outset of "se TTof the Constitution. Pursuing the question of the effect of "#39, is there anything else in the terminology of it which "gives foree to the construction on one side or the other? It irurged on the part of the appellant that the earlier words of _sulsee, (2) of that section give considerable force to his eonten- tim, They are these : - "'The several Courts of the States shall within the limits of their several jurisdictions, whether such limits " tteas to locality, subject-matter or otherwise, be invested with federal jurisdiction." We asked some questions during argument

ith a view to obtain the assistance of the bar as to the sense in

mhich the words " whether such limits are as to locality, subject- hatter or otherwise," are used, and we received assistance. It ty be conceded that the limits "as to locality" refer to the 'eritorial limits of the jurisdiction of the several Courts of the Stites,and that the limits as to "subject-matter" may refer to such 'tatters as pecuniary limits, and do refer generally to what is else- mhere usually denoted by the word "subject-matter" in relation to itsdietion, But I do not find that,on the part of the respondent, the Nonls or otherwise" are given any effective construction. Having 'plied the meaning of jurisdiction as to locality and jurisdiction

'Stosubject-matter, we are bound to give some meaning to the You, 2

words "or otherwise." What jurisdiction can be these words ? As far as T-ean see there is only one

: as 1G conclusion and that is this, that in using the words " or otherwise" it y

intended to apply to the purposes of the section the whole Stat jurisdiction not already mentioned - the whole of the juris possessed by any Court of a State, whether that jurisdiction civil or criminal, original or appellate. Unless we come to sons such conclusion Iam unable to see how effect is to be given i the whole of the phraseology of the section. 'Therefore, I em

Courts with federal jurisdiction, not only as to locality subject-matter, but also as to quality. I am of opinion that tl words "federal jurisdiction" as there used include appellate original jurisdiction or both, as the case may be, wherever, unde the laws of the State, such jurisdiction is already exercised ) any of the State Courts. 'Therefore, am of opinion that contention on behalf of the appellant is right in this case that the Chairman of General Sessions, - who no doubt lal s very difficult question to deal with - should have exercised juri diction, and entertained the appeal.

I wish to add that I am in agreement with the Chief Justices to the probable reason why see. 68 of the Judiciary Act, as wal as sec. 39, finds a place in that Act. There was ground to le covered by the passage of see. 68, not covered by sec. 39

Grirrira C.J. It is not necessary to issue a writ of mandamus 'The case will be remitted to the Chairman of General Sessionsi0 hear and determine. The respondent Lehmert ought to pay the appellant's costs.

Solicitors, for appellant, Wollaston & McComas, Melbourne.

Solicitor, for His Honor the Judge of the County Cou Guinness, Crown Solicitor for Victoria.

Solicitor, for respondent, Powers, Commonwealth Solicitor.