Commonwealth v Brisbane Milling Company Limited [1916] HCA 39

Commonwealth v Brisbane Milling Company Limited [1916] HCA 39 - HCA 1916 case summary — Zoe

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of South Australia, and the Crown contended that see. 73 war- ranted an appeal both in civil and criminal matters, because the anting of a new trial after verdict was included in the power

to entertain appeals. So far as the case involved the point now again arising, it was the subject of an equal division of opinion in a Bench of six Judges. The present case having provided the 'opportunity, it has now been argued before the entire Bench, so s to obtain the decision of a majority, and if such a decision is to be obtained without trammel, the case of Bawme v. The Com- mweclth (1) must also be reconsidered. It will be observed the notice of appeal in the present case deals only with the -yerdict. At the time it was filed judgment had not been signed. s my learned brother Higgins observed in R. v. Snow (2) "one cannot appeal from a verdict, which is the act of a jury; can only, under sec. 73 of the Constitution, appeal from the judgment, &e., of a Court." But if judgment had been signed fore the filing of the notice and the notice had in form appealed m the judgment as well as the verdict, it would have been less to impeach the judgment if the verdict on which it was ely consequent must stand. The contention of the appellant founded on the unanimous decision of this Court in Bawme . The Commonwealth. In that case the decision was that where a State Court is exercising federal jurisdiction the High ourt has jurisdiction to entertain a motion for a new trial. If at decision was right, I agree with Mr. Know that it concludes e matter. But Iam afraid that it was wrong. The Judiciary Act, sec. 39 (2), invests the several Courts of the States with eral jurisdiction, within the limits of their several jurisdic- tions, in all matters in which the High Court has original juris- diction, or in which original jurisdiction can be conferred upon it, except as provided in sec. 38 (A) (which need not be discussed now) and subject to certain conditions and restrictions ; and of the now material one is as follows : - " (a) Every decision of the Supreme Court of a State, or any other Court of a e from which at the establishment of the Commonwealth appeal lay to the Queen in Council, shall be final and conclu- ive except so far as an appeal may be brought to the High

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HIGH COURT (1916. Court." I agree with the Chief Justice that in Bawme's Case (1) this Court, whose decision was not a considered one, mistakenly assumed that the words "except so far as an appeal may be brought to the High Court" constituted an affirmative enactment, and that they must also be read in con- nection with the definition of "appeal" in sec. 2 of the same Act. Of course, there is an appeal from a decision of the Supreme Court of a State, but that is when it is embodied in a judgment, © decree, order or sentence within the meaning of sec. 73, subject to exceptions and regulations made under that section; and an appeal in that sense is treated in par. (a) of sec. 39 (2) as one that may be brought to the High Court; but that still leaves the difficulty, that a motion for the new trial of an issue the subject of a verdict in the federal jurisdiction cannot be truly termed an appeal from a judgment, decree, order or sentence. I do not think that sec. 89 (2) (a) takes a verdict in the Supreme Court in New South Wales, or a judgment founded upon it, out of the operation of the procedure of the State so as to enable the term "appeal" to apply to a new trial motion made to this Court by way of short cut. There must be a decision of the Supreme Court of the kind contemplated in sec. 73 of the Constitution - that is, a judgment, decree, order or sentence - before an appeal will lie to this Court; and the Parliament could not give a meaning, as it purported to do in sec. 2 of the Judiciary Act, which would include in the definition of the word "appeal" anything which was not warranted by sec. 73. Moreover, the word " appeal " as last used in sec. 39 (2) of the Judiciary Act, par. (a), would primé facie be construed in the sense which belongs to it in the previous expression "an appeal lay to the Queen in Council." But that is evidently the sense which the words bears, as I think, in sec. 73 of the Constitution. Can the Sovereign in Council be moved for a new trial upon a verdict given in New South Wales? The procedure in Gibraltar is, or at any rate was in 1886, identical with that in New South Wales. This appears from the report of Dagnino v. Bellotti (2), where it was objected that an appeal would not lie from a judgment of the Supreme Court at Gibraltar founded on a verdict of a Judge and assessors. The

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icial Committee said, by the mouth of Sir Burnes Peacock (1):

'In the present case it is contended that the judgment was g, because it gave effect to a verdict which was not war- nted by the evidence . . . . It would be very incon- it if parties, without moving the Court for a new trial, ld be at liberty to ask Her Majesty in Council to set aside the ment upon the ground that the verdict was wrong, without ig taken that course which is pointed out by the rules e in pursuance of the charter to be adopted in the case of an jection toa verdict . . . . Her Majesty cannot alter the dict or set it aside, and their Lordships are of opinion that cannot advise Her Majesty to direct a new trial, the parties ot having applied to the Court in the regular course instead of here." See also Tronson v. Dent (2). The position in yhich the High Court stands under the Constitution is similar. fusgrove vy. McDonald (3) was the simple case of an attempted to the High Court from the verdict of a jury, and the juent judgment founded upon it in the Supreme Court of a e in its ordinary jurisdiction. It was held that such an does not lie, but this Court pointed out that the appeal nplated by sec. 73 included an appeal from a judgment of Supreme Court dealing with a new trial motion. Musgrove McDonald was, it is true, not a case of federal jurisdiction, the grounds upon which it was decided have only to be ex: mined to evince that the reasoning applies to all cases in hich, by the procedure law of the State, the proper course in er to obtain a review of an adverse verdict is to apply to the in which it was given for such relief as is applicable in | acase. There is a quasi-discretionary power of the Court which the case is brought to grant a new trial upon applica- but such an application, as the learned Chief Justice of this pointed out in that case, was never regarded as an appeal. old practice of the Courts of common law obtains in New th Wales as well as in South Australia. The Supreme ourt is bound by the findings unless the verdict is set aside 'motion to that Court, and unless that Court sets them aside

At a glance

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Judgment (124 paragraphs)

11S: jurisdiction to grant the new trial, but Iam not satisfied that such -