Baxter v Commissoners of Taxation

Baxter v Commissoners of Taxation - [1907] HCA 76 - HCA 1907 case summary — Zoe

[56]

But his propositions, first, that the grant of enumerated powers impliedly carries with it the grant of all proper means, not expressly forbidden, to effectuate those powers; and next, that, conversely, as such a grant of these powers and means would be entirely illusory unless their full and free exercise were intended, there arises a necessary implication that no State, even to the least extent, can derogate from the grant by usurping or opposing the powers, or, what is the same thing, by obstructing the means of carrying them into execution, not only commend themselves to the reason, but are supported by the principles enunciated in such cases as Kielley v. Carson [105]; Doyle v. Falconer [106]; Barton v. Taylor [107]; and Fielding v. Thomas [108]. Kielley v. Carson [109] was heard before a most powerfully constituted Board. The Crown had by its Commission under the Great Seal created a Legislative Assembly for Newfoundland, and the question arose as to what powers were impliedly conferred upon the local legislature. Parke B., who delivered the judgment, said [110]: - "Their Lordships see no reason to think, that in the principle of the common law, any other powers are given them, than such as are necessary to the existence of such a body, and the proper exercise of the functions which it is intended to execute. These powers are granted by the very act of its establishment, an act which on both sides, it is admitted, it was competent for the Crown to perform. This is the principle which governs all legal incidents. Quando lex aliquid concedit, concedere viditur et illud, sine quo res ipsa esse non potest. In conformity to this principle we feel no doubt that such an Assembly has the right of protecting itself from all impediments to the due course of its proceeding. To the full extent of every measure which it may be really necessary to adopt, to secure the free exercise of legislative functions, they are justified in acting by the principle of the common law." The Board held that the power to punish for contempt was not necessary, and therefore not an incident.

[72]

I come at once to what I regard as the main question. What is the duty of this Court when it finds that the King in Council differs from the view which the Court had taken with regard to a question coming within sec. 74? In Deakin v. Webb [119] this Court held that the salary of a federal officer is not subject to State income tax; and there was no appeal from that decision, for this Court refused to certify, under sec. 74, that the question was one which ought to be determined by the King in Council. Subsequently, the Victorian Commissioner of income tax sued a federal officer, Outtrim, for income tax; the Supreme Court of Victoria followed the ruling of the High Court; and the Commissioner appealed to the King in Council. The Judicial Committee of the Privy Council reported to the King in Council to the effect that Outtrim was liable to the tax; and the King in Council adopted the report of the Committee and gave judgment against Outtrim. In their statement of the reasons for their report (Webb v. Outtrim ) [120] the Judicial Committee has clearly intimated its opinion that Deakin v. Webb [121] was wrongly decided. This appeal was taken to the King in Council direct from the Supreme Court, by virtue of the Act 7 & 8 Vict. c. 69, and the Order in Council of 9th June 1860 made thereunder. The Commonwealth Government, which was allowed to intervene in the argument before the Judicial Committee, urged strongly that the appeal could not be entertained by the King in Council, because of sec. 39 of the Judiciary Act 1903 . This section purported to take away jurisdiction in certain matters from the Courts of the States (including the Supreme Court of Victoria), and then to re-invest such Courts with federal jurisdiction, subject to this condition (inter alia) that every decision of the Supreme Court "shall be final and conclusive except so far as an appeal may be brought to the High Court." I have never been able to see how this exclusion of the King in Council from entertaining appeals from the Supreme Court of a State - whether appeals as of right or appeals by special leave - can be treated as within the power of the Commonwealth Parliament as conferred by the Constitution. No power has been conferred on the Commonwealth Parliament by the Constitution to repeal or alter the Acts 9 Geo. IV. c. 83, and 7 & 8 Vict. c. 69, and the Orders in Council made thereunder, allowing appeals as of right. But now the King in Council has expressly held that the provision is beyond the power of federal Parliament, and void; and it has entertained the appeal in Webb v. Outtrim [122], without even giving special leave to appeal.

[75]

Now, what is the duty of this Court when it finds that its view of the law as to the liability of State officers to income tax has been condemned by the King in Council? I have already stated that I assume everything else in favour of the appellant. Are we to adhere to the principle of Deakin v. Webb [125], or are we to submit to the law as laid down in Webb v. Outtrim [126]? I conceive it to be my duty not to let my personal opinion as to the merits of Deakin v. Webb [127] weigh with me in the slightest degree in determining the question. I should have gladly and dutifully accepted the well considered judgment of the original Judges of this Court, and treated it as a guide for all Courts within Australia, but for the contrary decision of the King in Council. It is true that I have held, and still hold, a strong opinion with regard to the judgment of Marshall C.J. in M'Culloch v. Maryland [128] - the judgment on which Deakin v. Webb [129] was based - although I utter the opinion with a feeling that it will be regarded by some as almost blasphemy. I regard it as being the utterance rather of the statesman than of the lawyer. I think that the doctrine of necessary implication was pressed beyond the logical limits recognized by British law. I think that if anything was to be necessarily implied in the United States Constitution, when the State of Maryland was found to be making a deliberate attack on a federal "instrumentality," the United States Bank, the thing to be implied was either (a) a power in the Courts to declare a State taxation Act fraudulent and void if and so far as passed for purposes foreign to the State power to tax State citizens: Duke of Portland v. Topham [130]; or else (b) a power on the part of the federal Congress to protect the Bank, and any other federal "instrumentality" or federal agent - a power to isolate them, wholly or partially, from State interference, just as Congress could isolate a fort or an arsenal. (See also Commonwealth Constitution , sec. 52 (2)). This would not be to "annul" a State Act. The State Act would remain, but the Court or the federal Congress, as the case may be, would say, in effect: - "Hands off! You must not attack the federal agent under a pretence of taxing the State citizen." I concur with my brother Isaacs in the view that it is not an improper interference with a federal agent for a State to collect from him a tax upon his income, on the same scale as from other citizens of the State, even though his salary as a federal agent has to be included in his return. But it is only just to my learned colleagues, the original Justices of this Court, to say that if the reasoning in M'Culloch v. Maryland [131] is right, and if it ought to be applied to the Australian Constitution, I do not see how they could have given any decision other than that which they gave in Deakin v. Webb [132]. (See in particular the words of Marshall C.J. [133]). But I do not wish to base my decision on my personal opinion as to M'Culloch v. Maryland [134], and I approach the main question in this case with an unprejudiced mind - what is the duty of the Court when the King in Council decides differently? I concur with the Chief Justice in thinking that there is nothing in the reasoning of the Law Lords in Webb v. Outtrim [135] calculated to satisfy men who are familiar with the long line of decisions in the United States that Deakin v. Webb [136] was wrong. The Earl of Halsbury points to secs. 106 and 107 of our Australian Constitution , and says that these sections leave no room for implied prohibitions, such as a prohibition of State income tax. But in the United States Constitution there was equally strong reason against such implication. Article I., sec. 10, contained the numerous express prohibitions affecting the powers of States to legislate; and Article X. reserved to the States the powers not prohibited to them by the Constitution. This consideration was present to the minds of the members of this Court when they delivered judgment in Deakin v. Webb [137]; but, if I may say so with all respect, it seems not to have been noticed by the Law Lords. This inadequacy of the reasons used by the Judicial Committee adds greatly to our difficulty; but still the question remains, which opinion ought to guide us in our present judgment? I have, of course, no right to allow my mind to be swayed by my view of expediency. I admit that, before taking my seat on this bench, I thought that it would be wiser to leave, as far as possible, the interpretation and the application of Australian laws to Australian Courts, as the making of those laws is left to the Australian Parliament; in effect, to put full responsibility on Australian shoulders. But my duty here is to accept the law as I find it.

[78]

The section also provides that, except as therein provided, the Royal Prerogative to grant special leave to appeal from the High Court to the Queen in Council shall not be impaired. That is all. When the litigants have had the advantage of a decision of the High Court on a certain limited class of constitutional subjects of a peculiarily Australian character, there is to be no appeal, even by special leave, to the King in Council - the only possible Court of Appeal - unless the High Court see fit to certify that the question is one which ought to be determined by the King in Council. In other words, the only curtailment of the powers of the King in Council, the only diminution of the prerogative right of the King in Council to entertain appeals from all Courts in the Colonies or Dependencies, is this, that when the High Court has made a pronouncement in any case with regard to matters of the character referred to in sec. 74, there is to be no appeal from the High Court in that case except with the High Court's approval. The King in Council still retains his preeminence as the final Court of Appeal, and the final exponent of the law, for all his colonial subjects. The King in Council still has, by virtue of his prerogative, power to entertain an appeal from any and every decision of the High Court as well as of any or every colonial Court, and on all kinds of subjects, constitutional or not, within sec. 74 or not; and the only qualification of that power is that in a certain class of cases - the limited class mentioned in sec. 74 - the appeal from the High Court must be sanctioned by the High Court. But still, as between the two Courts, the King in Council is the appellate Court, it is competent to hear any and every appeal from the High Court, and the High Court is the Court from which the appeal can be brought. No appeal can ever be brought from the King in Council to the High Court. The King in Council is on a higher platform than the High Court, although the High Court may prevent the litigant from ascending that higher platform. The law which Australians are to obey is one consistent whole. The law, if we can only find the true law, cannot speak finally with two inconsistent voices; and when an appellate Court says one thing, and the Court from which an appeal may lie has said another, the latter Court must thereafter accept the view of the appellate Court, and act upon it. This is no new doctrine. A jurist so cautious and so well equipped as Sir Frederick Pollock has expressed it thus: - "Decisions of an appellate Court of last resort are binding on all Courts from which an appeal lies to it, and, of course, on all tribunals inferior to them." And again ... "A Court of Appeal not only can reverse or vary decisions from which an appeal is brought, but can overrule previous decisions of Courts below which have not been appealed from." (First Book of Jurisprudence , pp. 322, 324.) There are analogous cases in British jurisprudence. For instance, in bankruptcy matters there is no appeal from the Court of Appeal to the House of Lords - the King in his High Court of Parliament - except by leave of the Court of Appeal (Bankruptcy Act 1883 sec. 104). But if the House of Lords, on an appeal from some other Court, should decide a point of law differently from the Court of Appeal acting in a bankruptcy matter, can anyone doubt that the Court of Appeal would thereafter accept the ruling of the House of Lords? There was no appeal from the Court of Crown Cases Reserved to the House of Lords - even with leave: 11 & 12 Vict. c. 78; Judicature Act 1873 , sec. 47. But no one can conceive of the Court of Crown Cases Reserved continuing to act on its own opinion, after the House of Lords, in other proceedings, has pronounced against that opinion. In The City of Chester [138], Lindley L.J., went even further. He was sitting in the Court of Appeal in Admiralty; and the decisions of the Privy Council were not binding on that Court. But he pointed out the inconvenience of any conflict between the decisions of the Judicial Committee and of Courts of Appeal in England, in matters of mercantile and admiralty law, which are professedly the same in England and in the Colonies; and he said that, even if he doubted the correctness of the decision of the Privy Council, he would be disposed to follow it rather than introduce a diversity of practice. No doubt, the King's Bench Division in England does not regard itself as bound by the decision of the King in Council: Leask v. Scott [139]; Dulieu v. White & Sons [140]; and the King in Council is not bound by the decision of the King's Bench Division: Reg. v. Bertrand [141]. But there never can, under any circumstances, be an appeal from the King's Bench to the King in Council or vice versâ. The two Courts act in parallel lines which never meet. They never stand in the relation of precedence and sequence. They have jurisdiction over different areas, and over different persons; there never can be an appeal from one Court to the other; and even if the Courts do follow conflicting rules, there is no double-headed law as a result. It is true that the old Courts of King's Bench, Common Pleas, and Exchequer operated over the same area, and yet did not consider themselves bound by one another's decisions. But these Courts were not final Courts - a dissatisfied litigant could still appeal to the House of Lords for a final statement of the law. If, however, the High Court is to continue to act on one principle, assuming to be bound by no opinion but its own on subjects within sec. 74, and if the King in Council continue to act on the opposite principle, it is easy to imagine the difficulties which will arise to plain men who want to obey the law. They will be treated as doing right, if their case be taken to one Court, and as doing wrong if it be taken to the other. In my opinion, the Commonwealth Constitution Act does not force us to such a result.

[79]

I know that it is asked: "What is the use of sec. 74 if it does not mean that the High Court is to be the final arbiter as to these constitutional points?" I can only answer that sec. 74 is clear and specific. It puts a check on a litigant who has had his case discussed before the High Court and has been defeated. He cannot go to the King in Council unless the High Court approve of his doing so. To this extent the section tends to prevent appeals from being carried from the High Court to London. This result the section expressly achieves; this is the object of the section; and I am of opinion that there is nothing else necessarily implied. I lay emphasis on the word "necessarily;" for I think I see a tendency to forget its full stringency. We have no right, in interpreting sec. 74, to treat it as containing what we conjecture, or may conjecture, to have been intended, by the Australian Convention, by the Australian voters, by the Australian delegates in London, by the British law officers, or by the Houses of the British Parliament. A certain form of words was agreed to after keen discussion: what is their meaning? They give a definite meaning as they stand. There is nothing ambiguous about them. I am told also that it is my duty to look at the intention of the Act, and to see that that intention be not defeated. If the intention alleged be to make the High Court the final arbiter as to constitutional matters (within a certain limit), my answer is that I cannot find that intention. Such reasoning involves a petitio principii. As Lord Watson said in Salomon v. Salomon & Co. [142]: - ""Intention of the Legislature" is a common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the legislature probably would have meant, although there has been an omission to enact it. In a Court of law or equity, what the legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication." Where words are unequivocal as they stand, we have no right to enlarge their meaning, or to treat other words as implied by reference to the object, or supposed object, of the framers, or to expediency, or to the policy, or supposed policy, of the measure. Our function is to construe the Act, not to improve it, or to alter it on the ground of probable intention: In re Sneezum [143]; London County Council v. Aylesbury Dairy Co. [144]; and, above all, we should avoid extending the Act where the proposed construction would infringe the prerogative rights of the Crown, or fundamental principles. (See Maxwell's Interpretation of Statutes , 4th ed., Ch. 3; United States v. Fisher [145]; Hardcastle, Statute Law , 3rd ed., pp. 76, 77 ). The truth is that this limitation in sec. 74, of the appeals from the High Court to the King in Council, would have, in fact, for all practical purposes made the High Court the final arbiter as to the constitutional matters referred to in sec. 74, if at the same time suitors in the Supreme Courts had been compelled by the Constitution to bring their appeals to the High Court - if suitors, thinking themselves aggrieved in the Supreme Courts, had been, by the Constitution, deprived of their right to appeal direct to the King in Council. I have no right to refer to what took place in the federal Convention on this subject. It is now admitted as beyond question, unless sec. 39 (2) (a) of the Judiciary Act 1903 is valid, that a litigant in the Supreme Court retains the right of appeal to the King in Council direct; and, in my opinion, sec. 74 merely restrains litigants who have been heard by the High Court - litigants who have had the benefit of a decision of the High Court on certain constitutional points - from taking the case to the King in Council without the approval of the High Court.

[80]

I am aware, of course, of the inference sought to be drawn from the words of sec. 74 when closely scrutinised - that no appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question, howsoever arising, as to the limits inter se of the constitutional powers, &c. It is urged that the word "decision" does not refer to the judgment or order of the High Court, but to a point of law decided; and that the section prohibits the King in Council from questioning in any proceedings the correctness of a ruling of the High Court in any other proceeding. For instance, the argument is that in Webb v. Outtrim [146], the King in Council had no power to question, much less to overrule, the doctrines laid down by the High Court in Deakin v. Webb [147]. As I understand the argument in its best form, there is nothing to prevent the King in Council from giving special leave to appeal from the High Court from any judgment so far as it involves questions other than those mentioned in sec. 74; and there is nothing to prevent an appeal direct from the Supreme Court of a State to the King in Council, even when it involves questions of the kind mentioned in sec. 74. In the latter case, the King in Council may even decide questions within the ambit of sec. 74. But in all cases, it is said, as soon as the High Court has pronounced on a question within the ambit of sec. 74, that pronouncement is final, and the King in Council must accept it as law, unless the High Court certify for determination by the King in Council. This scheme for subordinating the King in Council to the High Court as regards these questions has the merit of being clear and consistent; but it is not to be found in the Constitution. The natural way of expressing the scheme would be something like this: - "No pronouncement of law made by the High Court shall be subject to be revised or overruled in the same case, or in any other case, by the King in Council, if it be made upon any question arising as to the limits inter se of the constitutional powers," &c. But do the words of sec. 74 allow of such a paraphrase? As for the force given by the argument to the words "decision ... upon any question, howsoever arising, as to the limits," &c., it may be that the argument is right. I should have thought, indeed, that the word "decision" merely sums up, in one word, what had been referred to in the previous section in the cumbrous phraseology of "judgment, decree, order or sentence"; although, perhaps, the word "decision" applies to the judgment in its aspect of expounding the law rather than in its function of directing a litigating party to do or not to do an act. Sec. 74, as it relates to the King in Council, ought to be read with the general Act prescribing the machinery for appeals to the King in Council, &c. - 3 & 4 Wm. IV. c. 41: and in this Act the word "decision" is clearly used as an equivalent for "determination, sentence, rule, or order" of the Colonial Court (cf. preamble, and secs. 3, 21, 24). But let the meaning of the word "decision" be conceded to the appellant, how much further does it carry him? He omits to recognize the essential force of the word "appeal." What is forbidden is only an appeal from the High Court, and there is no appeal except in the identical case which the High Court has decided. If a point of law be decided by the High Court in an action A. v. B. , and if the same point of law came up for discussion - say on an appeal from a Supreme Court - in C. v. D. , that is not an appeal from the High Court, or from a decision of the High Court. It is not an appeal from the High Court when a party who is beaten in the Supreme Court appeals from the Supreme Court to the King in Council, even though he question the law as laid down by the High Court in another case. An appeal is defined in Wharton's Law Lexicon as "the removal of a cause from an inferior to a superior Court, for the purpose of testing the soundness of the decision of the inferior Court." The old expression was that A. appeals B. (Fr. appeler), calls or summons him to the higher Court, with regard to a judgment or order made or refused. The "appeal" must be in a cause between the parties; not in a cause between other parties. This is the natural, obvious, primary and technical meaning of the word; and there is no ground for giving it any other meaning in sec. 74, especially when it is used in that natural, obvious, primary and technical meaning, repeatedly, in the preceding sec. 73. Unless the words of sec. 74 are to be distorted so as to fit some preconceived theory as to the High Court, the construction proposed to be given to the section is, to my mind, absolutely impossible; and if there is any case in which, more than any other, we are not justified in adopting a strained interpretation, it is in a case such as this, in which the strained interpretation would further limit the prerogative of the King, as the fountain of justice, as the final expounder of his laws.

[81]

This consideration leads me naturally to a brief review of the historical and constitutional position of the King in Council. According to the theory of British law, the King is the fountain of justice - the supreme magistrate - and the Courts are his delegates. "All jurisdiction exercised in these kingdoms that are in obedience to our King is derived from the Crown; and the laws, whether of a temporal, ecclesiastical, or military nature, are called his laws; and it is his prerogative to take care of the due execution of them. Hence, all Judges must derive their authority from the Crown, by some commission warranted by law." (Bacon's Abridgment, Prerogative, D. 1). The jurisdiction of the King in Council has its origin in the common law of England. The Great Council of the King gradually branched off into Parliament; and partly by Statute, partly by usage, final appeals of suitors in Great Britain and Ireland are (nearly all) brought to the King in the House of Lords. Even to this day the appellant petitions that the matter of the judgment appealed from may be reviewed before "the King in his Court of Parliament." But the final appeals from the Dominions beyond the seas have always been brought to the King in His Privy Council. The King in Council has always had authority to hear appeals from and finally review the decisions of all Colonial Courts whensoever erected, and on any and every subject: The Queen v. Joykissen Mookerjee [148]; Falkland Islands Co. v. The Queen [149]; In re Lord Bishop of Natal [150]; Reg. v. Bertrand [151]; In re Dillet [152]; Anson, Constitution , 2nd ed., p. 465 ; Safford and Wheeler Privy Council Practice , pp. 699, 720. By the Act 3 & 4 Wm. IV. c. 41, a permanent Judicial Committee was created out of the Privy Council to hear the colonial and other appeals; and in the recitals of the Act appears an authoritative statement of the position: - "And whereas from the decisions of various courts of judicature in the East Indies, and in the plantations, colonies, and other dominions of His Majesty abroad, an appeal lies to His Majesty in Council: And whereas matters of appeal or petition to His Majesty in Council have usually been heard before a committee of the whole of His Majesty's Privy Council, who have made a report to His Majesty in Council, whereupon the final judgment or determination hath been given by His Majesty." This recital applies unquestionably to decisions of all kinds, given by Courts of all kinds, whensoever created or to be created; and it applies to the High Court, except so far as the prerogative of the King is qualified, expressly or by irresistible inference, by secs. 73 and 74 of our Constitution . Under this Act of Wm. IV. all the appeals are referred to the Judicial Committee, and this Committee makes a report or recommendation to His Majesty in Council "for his decision thereon as heretofore." It will be noticed that, legally, the decision rests with the King in Council. He is not under any compulsion to adopt the report of the Judicial Committee. "The judgment is the King's only; but by way of advice the councillors deliver their opinion, which he increaseth or moderateth at his royal pleasure": Hudson's Collectanea Juridica, II. , siii. The order made is the order of the King in Council, although it recites the report of the Judicial Committee. He still remains "the fountain of justice," the ultimate exponent of the law, the highest and final Court of appeal. It is his duty to exercise an appellate jurisdiction with a view, not only to ensure, so far as may be, the due administration of justice in the individual case, but also to preserve the due course of procedure generally: Reg. v. Bertrand [153]. Are the words of sec. 74 of the Constitution sufficient to deprive the King in Council of this prerogative? Nay, more - are they sufficient to oblige the King in Council to accept as law whatever the High Court may decide as to matters within sec. 74; or do these words merely effect what they expressly say - prevent a suitor, who has had the advantage of the opinion of the High Court, from taking his case further to the King in Council, without the approval of the High Court? It has to be remembered that no prerogative right of the King can be taken away except by precise words; or, as it is sometimes put, an intention to diminish the prerogative cannot be inferred from an Act of the British Parliament, unless the terms are explicit to that effect, or are such as to make the inference irresistible: Théberge v. Laudry [154]; Cushing v. Dupuy [155].

[82]

This is a question as to the operation of a New South Wales Income Tax Act . How far do the provisions for the appeal to the King in Council from New South Wales Courts affect the matter? By the Act 9 Geo. IV. c. 83, sec. 15, His Majesty was empowered to make an order in Council, allowing "any person or persons feeling aggrieved by any judgment, decree, order, or sentence of the Supreme Court (of New South Wales), to appeal therefrom to His Majesty in Council in such manner, within such time, and under and subject to such rules, regulations, and limitations as His Majesty by any such ... orders in Council shall appoint and prescribe." Under this Act, an Order in Council was made November 13th 1850 prescribing that it shall be lawful for "any person or persons" to appeal to Her Majesty in Her Privy Council "from any final judgment, decree, order, or sentence of any such Court," provided that the matter in dispute is over £500 in value, and provided that security be given for the prosecution of the appeal, and for costs, to the satisfaction of the Supreme Court. It will be observed that the words of this Act, and of the subsequent Act 7 & 8 Vict. c. 69, and of the Orders in Council thereunder are universal - any person aggrieved in the Supreme Court may appeal from any judgment. There is no limit as to subject matters, although there is a limit as to amount or value. These Acts are made by the same authority as the Commonwealth Constitution Act - the King and Houses of Parliament of Great Britain and Ireland - and these Acts and the Constitution Act must be read so as to give full effect to both, so far as the Constitution Act does not repeal the prior Acts expressly or by necessary implication. There is certainly no express repeal, no express amendment, of these prior Acts by the Constitution Act . There is nothing in the Constitution Act to show any intention to limit or qualify the right of appeal from the Supreme Court in respect of any judgment, or any point or matter in that judgment, whether it come under federal jurisdiction, or within the limited class of subjects referred to in sec. 74, or within any class of subjects whatsoever. The King in Council is not shorn of his authority to entertain the appeal of his New South Wales subjects from the Supreme Court, or of his right, on that appeal, to form and express his own conclusions on all relevant issues of law and of fact. He is not bound to accept the view of the High Court as expressed in cases which have gone to the High Court. He still retains his pre-eminence as the final interpreter of the law. He cannot, it is true, reverse an actual decision of the High Court unless the cause in which that decision has been given came before him by way of appeal, and it cannot come before him on appeal from the High Court, unless with the High Court's approval. In such a case - as for example in Deakin v. Webb [156] - the decision of the High Court is final as between the parties to that cause. But though the King in Council cannot reverse a decision of the High Court in a case which has not come before him, there is nothing, that I can find, to limit his power to review, and, if need be, to overrule, any pronouncement of law made by the High Court, or by any other Court of his Dominions beyond the seas; and inasmuch as the King in Council has overruled the decision of this Court in Deakin v. Webb [157], I think it to be the duty of this Court to accept His Majesty's official opinion as finally stating the law. I am therefore of opinion that this appeal should be dismissed.

At a glance

Court

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Before

Source

Judgment (243 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (2)

Baxter v Commissoners of Taxation (NSW) [1907] HCA 76; (1907) 4 CLR 1087 (7 June 1907)