Commonwealth v Limerick Steamship Company Limited [1924] HCA 50

Commonwealth v Limerick Steamship Company Limited [1924] HCA 50 - HCA 1924 case summary — Zoe

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the Parliament with respect (ier alia) to the matters we are here concerned with, to make laws: (11) "investing any Court of a State with Federal jurisdiction." Obviously a very convenient means of avoiding the multiplicity and expense of legal tribunals and of enabling this Court to devote itself more fully to appellate - duties, But there are no words which make the power of investing a State Court with Federal jurisdiction any narrower than the power of defining the jurisdiction of a Federal Court. If the argument be tight that sec. 39 (2) (a) is beyond the competency of Parliament, ; it follows that a similar incompetency would exist with reference to any new Federal Court. The result would be - as, indeed, admitted in argument - that Federal jurisdiction would be invested in Courts other than the High Court at the Commonwealth's peril. Hither it must throw the whole judicial power upon the High Court, in order to maintain the principles of secs. 73 and 74, as to appeals to His Majesty in Council; or it must invest the jurisdiction in other - Courts, with the consequence as to Federal Courts and all State - Courts of a possible appeal as of grace even in constitutional matters - inter se, and, as to the Supreme Courts, of that and also an appeal 7 as of right. That would be a strange and fantastic result, anda most labyrinthine arrangement of judicial power. Having regard to sec, 74, divergent views of this Court and of the Privy Council, each binding on the Supreme Courts, would make the position hopeless. Happily that is not the outcome. What is included in "investing any Court of a State with Federal jurisdiction " - and this with special application to the Supreme Court ¢ Reference was made in argument te Attorney-General y. Sillem (1) as supporting the respondents' contention. It is, in reality, its most - powerful refutation. The question was as to the power of the Court of Exchequer to create an appellate jurisdiction from itself to superior Courts. That power was contended for under the words * process, practice, and mode of pleading." The House of Lords negatived the contention, by three to two (Lords Cranworth and Wensle being in the minority). But, apart from the weight of the dissenting Judges, the Lord Chancellor (Lord Westbury) made some impo observations which are entirely opposed to the respondents' view.

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may be taken to have had the approval of the Privy Council on appeal. So here, the Constitution of New South Wales is not confined to the Act No. 32 of 1902. which is intituled The Constitution Act 1902, and to its specific amendments. The Colonial Laws Validity Act 1865, for instance, would be excluded by such an argument, though. as explained in McCawley's Case (1), it is unquestionably part of the Constitution of New South Wales, because it contains some of the powers granted to that State to function as a political entity. The Charter of Justice also would be excluded, together with the Imperial Act 9 Geo. IV. e. 83, on which that Charter now depends. And the exclusion of the Act, would mean that the provision of sec. 15, providing for appeals to His Majesty in Council from the Supreme Court, would be no part of its Constitution. That is to say, the "right " of a New South Wales citizen to appeal to the King in Council (see Tilonko v. Attorney- General of Natal (2) ) would be entirely outside the "' constitutional" provisions of the State and, therefore, outside the sphere of self- government. The contention that supports this view is 80 retrogressive in the political development of the Empire, and so opposed to McCawley's Case and Theodore v. Duncan (3), that it may well be left with simple dissent. The Charter and sec. 15 of the Act 9 Geo. IV. ¢. 83 and the Order in Council, if it is to be regarded as having statutory force by reason of sec. 15 and endowing, as the Charter and the Act unquestionably endow, the great judicial organ of the State with powers not dependent on what may be termed incidental legislation of the State, are all part of the Constitution of the State. And, if so, it necessarily follows that the attempt by the State through its chief judicial organ to make a coercive order against the Commonwealth, or in any case of Federal jurisdiction, - is an attempted exertion of State constitutional power to command, within the asserted domain of Commonwealth rights to be free from such command, and is in conflict also with the asserted exclusive domain of constitutional legislative power. Where contrary Commonwealth legislation already exists, there is actual conflict; but this, though presenting the matter more sharply and accentuating

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The question, however, remains as to the character of the Order in Council, and that is now dealt with. The Act 9 Geo. IV. c. 83 was of a general constitutional character, and, among other things, enacted by sec. 2 that until further provision by Charter or Letters Patent was made the Supreme Court as already constituted should continue, except as altered by the Act itself. No further Charter or Letters Patent were issued, and the Supreme Court continued with such other jurisdiction as was given by various sections.of the statute. Sec. 15 dealt with appeals to His Majesty in Council, and was in these terms: '" And be it further enacted, that it shall and may be lawful for His Majesty, by the said Charters or Letters Patent respectively, or by any Order or Orders of His Majesty in Council, to allow any person or persons feeling aggrieved by any judgment, decree, order, or sentence of the said Supreme Courts respectively, 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 Charters, or Letters Patent, or Orderor Orders in Council respectively, shall appoint and prescribe." Three things are to be noted. One, that now it is appeal from the Supreme Court, the Court of Appeals having disappeared. Next, that the power is again of a legislative nature, exercisable either by Charter, Letters Patent, or Order in Council - but the same power in each case. A Charter is of course of a legislative nature. Lastly, the statutory power is conferred upon His Majesty by sec. 15 to confer on suitors the civil right of appeal. It is a right beyond any right existing at common law by virtue of the prerogative. This necessarily circumscribes any Order in Council made under it. From 1829 to 1845 ne appeal took place from the Supreme Court to the Sovereign in Council. But in 1844, as appears from the report of Flint v. Walker (2), an application for leave was refused by the

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"that any alterations of the conditions of appeals from the State Court in the exercise of any jurisdiction, whether Federal or State, can only be made by Imperial or /ocal legislation and cannot be carried out by an Act of the Federal Parliament." That is to say, though in Federal jurisdiction, the Commonwealth Parliament cannot, and the State Parliament can, control the conditions of appeals from the State Courts in the exercise of the judicial power of the Commonwealth (sec. 71 of the Constitution). Nothing but the most explicit decision of the Judicial Committee (where that is permissible in view of sec. 74) so determining could establish that as a legal proposition. In the absence of such a determination it is inconceivable that the Order in Council is a means marking out a side track by which, in Federal jurisdiction, even constitutional questions may be determined by State Courts and Privy Council, to the clear exclusion of the High Court. That would practically nullify the words " final and conclusive " in sec. 73 and the whole of sec. 74. Those provisions were not put in as procedure, nor for merely technical reasons. They embody a 'great principle. This Court, as was strenuously urged by Mr. Deakin, has in Baxter v. Commissioners of Taxation (N.S.W.) (1) determined the validity of sec. 39 (2) (a) in a sense which appertains to sec, 74 of the Constitution. It is part of the respondents' case here that that decision can be overruled even without consulting the High Court. If, contrary to what is believed, there be ambiguity in the text of the Constitution, then Lord Loreburn's words in Attorney-General for Ontario v. Attorney-General for Canada (2), partly quoted in the majority judgment of this Court in Amalgamated Society of Engineers v. Adelaide Steamship Co. (3), are in point. Lord Loreburn said : - * In the interpretation of a completely self-governing Constitution founded upon a written organic instrument, such as the British North America Act, if the text is explicit the text is conclusive, alike in what it directs and what it forbids. When the text is ambiguous, as, for example, when the words establishing two mutually exclusive jurisdictions are wide enough to bring a particular power

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possessions, e.g., the Supreme Court Act 1915 of Victoria, jurisdiction and power is vested in the local Court as a judicial organ of the possession and not as a delegate or substitute or subrogate, as was suggested, of His Majesty. But in the present case we must examine the Order in Council. It is in the model form prepared after the Imperial Conference of 1907. Some of these Orders hay e been issued under the Privy Council Appeal Act 1844 (7 & 8 Viet. c. 69), as in fhe case of Victoria, but the New South Wales Order was issued pursuant to the powers contained in the statute 9 Geo. IV. ¢. 83, sec. 15, enabling His Majesty to allow "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 subject to such rules, regulations, and limitations, as His Majesty by any such Order or Orders in Council . . . shall appoint and prescribe." The Order in Council grants an appeal to His Majesty (a) as of right from any final judgment of the Supreme Court wl the matter in dispute on the appeal amounts to or is of the value of £500 sterling or upwards. &c.; (b) at the discretion of the Supreme Court in certain other cases. And it authorizes the Supreme Co to give leave to appeal (rules 4, 5 and 18). Clearly this is not the prerogative power of His Majesty to grant leave to appeal as act of grace, for that is reserved by rule 28 of the Order in Counc But if not, then it is a grant of power and jurisdiction to the judici organ of the State, pursuant to the authority contained in the 9 Geo. IV. c. 83. It is as much a grant of jurisdiction to the Suprem Court as is the grant contained in the Act 9 Geo, IV. c. 83, sec. itself. The nature of the power and jurisdiction conferred by the Order in Council upon the Supreme Court is clearly judicial. Court must investigate and determine under rule 2 (a), whether th appeal is of right, that is, whether the appealable amount has b established, and, under rule 2 (b), whether the question involved in the appeal is one which, by reason of its great general or public importance or otherwise, ought to be submitted to His Majesty for determination. The Judicial Committee has repeatedly, already noticed, reviewed orders establishing a right of appe l, which, I apprehend, would be incompetent unless the orders y

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said (1), by the State of Victoria "to tax a . . . resident in the State in respect of income earned in the State" but paid to him by the Commonwealth as one of its officers. '' And in such a matter," as Hodges J. remarked, " the Supreme Court of the State would prima facie have jurisdiction as a State Court." But in Deakin v. Webb (2) this Court had held that an attempt on the part of a State to tax the salaries of officers of the Commonwealth was an interference with the free exercise by the Commonwealth of its legislative and executive power, and impliedly prohibited by the Constitution. Consequently, Outrim claimed and was entitled to exemption from the State taxation in respect of his salary. But the Commissioner of Taxes obtained leave to appeal as of right to His Majesty in Council, and objection to the competence of his appeal was taken by the Commonwealth, which had intervened in the proceedings. It was decided that the appeal was competent; and in the course of its decision the Judicial Committee dissented from the doctrine of Deakin v. Webb. Since the decision of the Judicial Committee in Jones v. Commonwealth Court of Conciliation and Arbitration (3), one may be permitted to doubt whether that question was open to their Lordships, in view of the provisions of sec, 74 of the Constitution. The decision of the High Court upon any question as to the limits inter se of the constitutional power of the Commonwealth and those of any State or States is the law with regard to that question, and is binding upon all tribunals until other- wise declared by the High Court or unless the High Court certify that the question is one which ought to be determined by His Majesty in Council (Baater's Case (4) ). The conflict of opinion which arose in the cases of Webb v. Outrim, Deakin v. Webb and Baxter v. Commissioners of Taxation (N.S.W.) has now, however, been resolved in accordance with the view adopted by their Lordships in Webb v. Outrim (see Engineers' Case (5) ). But the truth of the matter is that Federal jurisdiction was not and could not have been invoked in Webb v. Outrim. Outrim claimed exemption from State taxation by reason of an implied prohibition in the Constitution.

At a glance

Court

Decision date

Before

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Judgment (326 paragraphs)

(8) (1891) A.C, 210. (10) (1916) 1 A.C. 566, at p. 587.