Henderson v Pioneer Homes Pty Ltd

A number of prosecutions brought against Pioneer Homes Pty. Ltd. and Pioneer Agencies Pty. Ltd. by the informant, Henderson, came on for hearing before Smithers J. in the General Division of the Federal Court. At the request of the parties his Honour, in exercise, as he thought, of power conferred by s. 25 (6), stated a special case to the Full Court. When the matter came before the Full Court the question arose whether s. 25 (6) in fact empowered his Honour to state a case. In considered judgments Franki and Northrop JJ. concluded that he lacked that power [6a] . The third member of the Full Court was Smithers J. He dissented, asserting that such power did in fact exist. The order of the Full Court was that the case stated be struck out.

This outcome satisfied neither side. Each adopted a different course in an endeavour to attain the common aim of having the Full Court of the Federal Court hear and determine the questions raised in the special case. The two Pioneer companies for that purpose sought mandamus in this Court, directed to the Federal Court and to the three members of it who constituted the Full Court. The course taken by the informant, Henderson, was to seek special leave to appeal from the order of the Full Court. Those two proceedings have now come before us and argument on each has been heard together. The result has been that although the arguments advanced by the parties were not identical they both involved the proposition that s. 25 (6) did empower Smithers J. to adopt the course he did in stating a special case to the Full Court. Although in the result we have heard no oral argument to the contrary, the reasons for judgment of Franki and Northrop JJ. provide an extensive statement of the contrary view.

The Court constituted by a single Judge sitting in either Division may state any case or reserve any question concerning a matter with respect to which an appeal would lie from a judgment of the Judge to a Full Court of the Court for the consideration of a Full Court of the Court in that Division and the Full Court has jurisdiction to hear and determine the case or question.

The majority in the Court below regarded their conclusion to be a necessary consequence of the decision of the Full Court of the Federal Court in Thompson v. Mastertouch T.V. Service Pty. Ltd. [No. 3] [7] . Mastertouch decided that, despite the general terms in which s. 24 (1) (a) of the Act conferred upon the Federal Court jurisdiction to hear and determine "appeals from judgments of the Court constituted by a single Judge", no appeal lay to the Full Court of the Federal Court from an acquittal in criminal proceedings before a single judge of that Court.

Of the majority in the Court below, Franki J. concluded that, by restricting those matters concerning which a case may be stated or questions reserved to matters "with respect to which an appeal would lie from a judgment of the Judge", s. 25 (6) was confined in its operation to a restricted class of proceeding, "matter" meaning no more than a "proceeding". The class of proceeding was one which required for its identification that it could be said of it in advance that, when it had concluded in a judgment, an appeal would lie to the Full Court. Of criminal proceedings this would never be said in advance, since they might end in acquittal, from which, according to Mastertouch , no appeal would lie. The consequence was seen to be that s. 25 (6) should be treated as inapplicable to all criminal proceedings.

Northrop J. arrived at the same conclusion by somewhat different reasoning. For him "matter" in s. 25 (6) meant the subject matter of a legal proceeding. The appellate jurisdiction of the Full Court was made to depend "upon the nature of the judgment made". The consequence of Mastertouch was that, in the case of criminal proceedings, only those judgments other than by way of acquittal could be the subject of an appeal. Yet whether or not criminal proceedings would result in an appealable judgment could necessarily only be determined when judgment was given. This his Honour regarded as leading to the conclusion, however "unsatisfactory and anomalous" it might seem, that s. 25 (6) had no operation in the case of criminal proceedings.

In his dissenting judgment Smithers J. concluded that the effect of Mastertouch was to require "judgment", when used in the section conferring appellate jurisdiction, s. 24 (1) (a), to refer to judgments in civil cases and those judgments in criminal cases which were not judgments of acquittal. A like meaning should be given to "judgment" in s. 25 (6). So understood, that section conferred jurisdiction to state a case or reserve a question concering all matters with respect to which an appeal would lie from the judgment, regardless of the fact that if judgment were given in a criminal case and proved to be by way of acquittal no question of appeal could in fact arise. This interpretation allowed s. 25 (6) to apply to criminal cases while giving full recognition to the decision in Mastertouch [1] .

As we read it, s. 25 (6) is concerned to confine the stating of a case and the reservation of a question to those instances in which the matter the subject of proceedings is one in respect of which an appeal lies under s. 24 (1) to the Full Court of the Federal Court. Where no such appeal lies and where, instead, the single judge is to be the final arbiter, there is to be no dilution of his exclusive responsibility by any recourse being had to the Full Court by means of stated case or the reservation of questions.

Section 24 (1) expressly contemplates cases in which the single judge is to be the final arbiter. It does so by qualifying the general grant of appellate jurisdiction conferred by par. (a) not only by the words "subject to this section" but also by making that grant subject to other Acts "including an Act by virtue of which any judgments referred to in this section are made final and conclusive or not subject to appeal". Matters which are the subject of proceedings to which such other Acts apply are thus excluded from the scope of s. 25 (6). Not only will they not be subject to appeal under s. 24 (1), they will not answer the description of "a matter with respect to which an appeal would lie from a judgment of the Judge" in sub-s. (6), hence no statement of a case or reservation of a question may be made in respect of them.

On the other hand, to the generality of cases, both civil and criminal, within the original jurisdiction of the Federal Court conferred by s. 19 (1), s. 25 (6) will apply. There is a close relationship between s. 19 (1) and s. 25 (6). Both provisions are concerned with the exercise of original jurisdiction by the Court and, subject to the limitation in s. 25 (6) to which we have referred, the subject matter of each is essentially the same. Section 19 (1) confers on the Federal Court such original jurisdiction as is vested in it by the Parliament, being jurisdiction in respect of " matters arising under laws made by the Parliament". Section 25 (6) empowers a Judge in the exercise of that original jurisdiction to state a case or reserve a question concerning " a matter "; that is to say, in our opinion, "a matter arising under a law made by the Parliament". The matter must be one "with respect to which an appeal would lie from a judgment of the Judge" but this limitation relates to the nature of the matter before the Court and not to the judgment the Court may give.

The fact that in some cases involving such "matters" the judgment will not be subject to appeal because it takes the form of an acquittal on a criminal charge does not affect the operation of s. 25 (6). The matters to which they relate do not cease to be matters "with respect to which an appeal would lie from a judgment of the Judge", because their outcome proves to be an acquittal, from which no appeal will lie. Such a consequence would flow not from the nature of the matter but only from the quality of the outcome, an acquittal.

It follows then, with respect to the majority opinions to the contrary in the Full Court, that we regard s. 25 (6) as recognizing that the original jurisdiction of the Federal Court includes some matters in which the decision of the Judge is final and conclusive and not subject to appeal: cf. s. 24 (1) Federal Court of Australia Act; s. 118B (1) (a) of the Conciliation and Arbitration Act 1904. In such cases, and in such cases only, the Judge is unable, by any recourse to a stated case or to the reservation of questions, to shed or share the responsibility which is exclusive to him.

It follows that we would uphold the propriety of the course adopted by Smithers J. The learned Solicitor-General of the Commonwealth, who appeared for the informant Henderson, presented an alternative argument to the effect that the decision of the Federal Court in Mastertouch was wrong and should be overruled. However, having regard to the conclusion expressed above, it is not necessary to embark on a consideration of that submission: nor would it be appropriate to do so in a case where the Court has not heard any argument to the contrary.

Of the two different remedies which are sought by the respective parties we think that that by way of mandamus is the most satisfactory. We would therefore dismiss the application for special leave. We would grant the application for mandamus directing the Full Court of the Federal Court to exercise, in relation to the special case, the jurisdiction conferred upon it by s. 25 (6).

In the Federal Court of Australia Act 1976, Parliament provided that a single judge may, for the consideration of a Full Court, "state any case or reserve any question concerning a matter with respect to which an appeal would lie" from his judgment to a Full Court (see s. 26 (1)). On its face, this extends to criminal as well as civil cases. In Thompson v. Mastertouch T.V. Service Pty. Ltd. [No. 3] [2] , the Federal Court held, in accordance with the established principle of interpretation (see Cox v. Hakes [3] ; Benson v. Northern Ireland Road Transport Board [4] ) that no appeal lies from an acquittal on a prosecution under Pt V of the Trade Practices Act 1974 Cth, as amended. The Act provided punishment by imprisonment as well as fine, but has since been amended to provide only for fines. The Federal Court considered that, notwithstanding the amendment, the principle still applies. The majority of the Federal Court reasoned that because in any criminal case a judge may acquit, it cannot be said before judgment that an appeal would lie, therefore, the stated case or reference procedure did not apply to any criminal case. This has the same appearance of unassailable logic as the reasoning in the modern paradox,The Unexpected Hanging, Martin Gardiner (1961). However, if Parliament intended to exclude the stated case procedure from all criminal cases, it would have said so plainly and not indulged in a subtle word puzzle. It is obvious that Parliament was referring to those cases in which it could not be said before judgment that no appeal would lie. If there is provision for appeal from certain judgments, but not where the amount of fine or damages is less than a certain sum, and it is not apparent before judgment that it must be for a sum below that, then in ordinary language, it can be said before judgment that an appeal "would lie". In this context, "would lie" means "could lie". In s. 26 (1), after the reference to a matter with respect to which an appeal would lie from his judgment, the draftsman could have inserted additional words: "provided that in a criminal case there was not an acquittal", or words to that effect. This would be an unnecessary and clumsy complication. The virtue of overriding principles like no appeal from an acquittal is that they do not need to be repeatedly inserted in order to avoid an assumption that they are being excluded.

1. (1978) 38 F.L.R. 397; 19 A.L.R. 547. 2. (1890) 15 App. Cas. 506. 3. [1942] A.C. 520.

Legislation is already over-complicated; its strictly literal interpretation is forcing draftsmen to respond with more complex drafting (e.g., the Income Tax Assessment Act 1936 Cth, as amended). Cox v. Hakes [3] is important not only for the authoritative statement of principle that except where there is unmistakable language to the contrary, legislation should be interpreted not to give an appeal against an acquittal or discharge on habeas corpus, but also for its guidance in interpretation of statutes. Lord Halsbury L.C. [4a] quoted with approval a passage from Stradling v. Morgan [5] which deserves more than occasional reference:

it appears that the sages of the law heretofore have construed statutes quite contrary to the letter in some appearance, and those statutes which comprehend all things in the letter, they have expounded to extend but to some things, and those which generally prohibit all people from doing such an act, they have interpreted to permit some people to do it, and those which include every person in the letter they have adjudged to reach to some persons only, which expositions have always been founded upon the intent of the Legislature, which they have collected sometimes by considering the cause and necessity of making the Act, sometimes by comparing one part of the Act with another, and sometimes by foreign circumstances. So that they have ever been guided by the intent of the Legislature, which they have always taken according to the necessity of the matter, and according to that which is consonant to reason and good discretion. 1. (1890) 15 App. Cas. 506. 2. (1890) 15 App. Cas., at p. 618. 3. (1560) 1 Plowd. 199, at p. 205 [75 E.R. 305, at p. 315].

My reading of this legislation leaves me with no doubt of Parliament's intention which is that the stated case or reference procedure is applicable in every criminal case where an appeal would lie (unless the defendant was acquitted), that is, in the existing state of the legislation, in every criminal case. Smithers J. was empowered to state the case. Of the remedies sought, mandamus is appropriate. Order absolute should issue.

These two applications were heard concurrently. One was an application for an order nisi for a mandamus directed to the Full Court of the Federal Court to hear and determine a case stated for the consideration of the Full Court, and the other was an application for special leave to appeal from the decision of the Full Court of the Federal Court that it had no jurisdiction to consider the case stated.

By s. 19 (1) of the Federal Court of Australia Act 1976 the Federal Court is given "such original jurisdiction as is vested in it by laws made by the Parliament, being jurisdiction in respect of matters arising under laws made by the Parliament." By s. 24 (1) it is provided as follows:

Subject to this section and to any other Act, whether passed before or after the commencement of this Act (including an Act by virtue of which any judgments referred to in this section are made final and conclusive or not subject to appeal), the Court has jurisdiction to hear and determine -

(a) appeals from judgments of the Court constituted by a single Judge;

(b) appeals from judgments of the Supreme Court of a Territory; and

(c) in such cases as are provided by any other Act, appeals from judgments of a court of a State, other than a Full Court of the Supreme Court of a State, exercising federal jurisdiction.

By s. 25 (1) it is provided that the appellate jurisdiction of the Federal Court "shall be exercised by a Full Court."

The Court constituted by a single Judge sitting in either Division may state any case or reserve any question concerning a matter with respect to which an appeal would lie from a judgment of the Judge to a Full Court of the Court for the consideration of a Full Court of the Court in that Division and the Full Court has jurisdiction to hear and determine the case or question.

In the present case some thirty-five informations were laid against Pioneer Homes Pty. Ltd. and Pioneer Agencies Pty. Ltd. charging contravention of s. 53 (e) of the Trade Practices Act Cth in that "in connection with the promotion by advertising of the supply of services, namely the supply of a house and land did make a misleading statement with respect to the price of services" in various newspapers on various dates. These informations came on for hearing before Smithers J. on 6th October 1978 when each defendant entered a plea of not guilty in respect of each of the informations upon which it was charged. On 10th October 1978 Smithers J. stated a special case for the consideration of the Full Court in purported pursuance of s. 25 (6) of the Federal Court of Australia Act 1976. It appears that this was done at the request of both the informant and the defendants in each of the informations. The case stated said in par. 5 that "The matters set forth in the succeeding paragraphs are, for the purposes of these proceedings only, agreed between the informant and each defendant". The "proceedings" there referred to presumably were the several informations and not the case stated because otherwise the latter would have raised hypothetical questions. The form of the questions asked was as follows:

(a) Were the contents of the advertisements which referred to $100 deposit and payments of weekly amounts statements made in connection with the promotion by any means of the supply of services?

(i) were the said statements made with respect to the price of services; and

(ii) were the said statements made concerning the effect of any condition?

(c) If yes to (b) (i) and/or (ii), were the said statements misleading?

An examination of s. 53 of the Trade Practices Act 1974 Cth shows that these questions covered all the issues which could have arisen in the prosecutions and that if they were answered in the affirmative conviction would have been inevitable and that if any were answered in the negative, at least in one combination of the questions, acquittal would have been inevitable.

When the matter came before the Full Court of the Federal Court (Smithers, Franki and Northrop JJ.) the question arose whether s. 26 (5) permitted a case to be stated in the circumstances of these prosecutions, though the point was not raised by either the informant or the defendants. It arose out of the decision of the Full Court inThompson v. Mastertouch T.V. Service Pty. Ltd. [6] in which that Court held that s. 24 (1) did not authorize the Court to hear an appeal against an acquittal on a criminal charge, though it did cover appeals against conviction.

The question which arose in the present case was whether the words of s. 25 (6) were apt to cover a criminal prosecution because the nature of such a proceeding made it impossible to know at the time when the case was stated or the question reserved whether an appeal would lie from the judgment because such an appeal would lie only if there were a conviction. By majority the Full Court held that s. 25 (6) did not apply in criminal cases, and struck out the case stated [6a] .

In the circumstances it is not necessary to decide whether that decision is one in respect of which it would be possible to grant special leave to appeal because, if the conclusion is reached that the reasons of the majority are erroneous, the appropriate remedy would be a mandamus.

In the judgments below a number of cases are referred to and the judgments therein analyzed, and in the argument before us there was some reference to prior authority. I do not find the decisions with respect to the power under other legislation to state a case or reserve a question of law for the consideration of another court helpful because they all turn upon legislation different in form from the present.

What this section requires is that the stated case or the question reserved should be one "concerning a matter with respect to which an appeal would lie from a judgment of the Judge to a Full Court of the Court". Thus what the stated case must do is to set out a question which concerns a "matter". The term "matter" is derived from s. 19 (1) which provides that the original jurisdiction of the Court is that which is vested in it by laws made by the Parliament, being "jurisdiction in respect of matters arising under laws made by the Parliament". That expression in its turn is derived from ss. 75 and 76 of the Constitution which sets out respectively the original jurisdiction of the High Court conferred by the Constitution itself and the original jurisdiction which may be conferred upon the High Court by the Parliament. The jurisdiction given by s. 75 is expressed to be in respect of "all matters" of the five kinds there specified and the jurisdiction which may be conferred under s. 76 is expressed to be jurisdiction "in any matter" of the four kinds there set out, of which the one pursuant to which s. 19 has been passed is s. 76 (ii.), i.e. any matter "arising under any laws made by the Parliament". It was said inIn re Judiciary and Navigation Acts [7] that a "matter" involves "some right, privilege or protection given by law or the prevention, redress or punishment of some act inhibited by law". It was said in Collins v. Charles Marshall Pty. Ltd. [8] that a "matter" is not the same as a "proceeding", though the difference between them is not always significant. It is no doubt dangerous to attempt any further paraphrase in order to elucidate the meaning of the word "matter", but it may be safe to say that in this particular context the word "matter" in the phrase "matters arising under laws made by the Parliament" means that the subject matter of the litigation must arise under such a law.

1. (1921) 29 C.L.R. 257, at p. 266. 2. (1955) 92 C.L.R. 529, at pp. 541-542.

Accordingly the case stated must concern some subject matter of litigation of a character which would (not might) enable an appeal to lie from a judgment from the judge sitting in original jurisdiction to a Full Court. The caution about the use of the word "proceeding" as a synonym for the word "matter" is however not such as to make the substitution of the word "proceeding" always unhelpful in the construction of legislation. In the present case if one does substitute the word "proceeding" for the word "matter" the section is perhaps more easily understood. On that basis the stated case or the question reserved must concern a proceeding of a kind such that an appeal will lie from a judgment of the judge in such proceeding. Whether or not such an appeal will lie will depend upon a variety of factors, including the nature of the jurisdiction and in some instances, as it seems to me, the nature of the order which may be made. If one were to assume that the Court had jurisdiction to entertain claims for damages arising out of some specified kinds of transaction and further provided that no appeal should lie from any judgment awarding less than $X, exactly the same question would arise as in the present case. Namely that it would not be possible to tell until judgment was entered whether or not an appeal would lie from such judgment. That may do no more than restate the problem, but it illustrates that it is not necessarily confined to the hearing of criminal charges.

An analogous situation is provided by the decision of the Federal Court in Pearce v. Federal Commissioner of Taxation [9] in which it held that it did not have jurisdiction to consider a case stated by a judge of a Supreme Court exercising federal jurisdiction under the Income Tax Assessment Act 1936 Cth in hearing a case concerning an objection against an assessment because no appeal lay to the Full Court of the Federal Court unless leave to appeal were first granted. The Court held that, because appeals were dependent upon the grant of leave, it could not be said of the particular case that an appeal would lie from the judgment. Whether it would lie would depend on whether leave were later granted. In a criminal case it is of course impossible to say before the case is decided whether the judgment will be one of acquittal or conviction, and therefore whether s. 25 (6) denies or gives a right of appeal.

I do not think that it is of assistance in determining this question of construction to say that there are some judgments from single judges of the Federal Court from which an appeal will lie and that there are some from which no appeal will lie. It does not appear to me to matter that the criterion for determining whether an appeal will or will not lie is, under some legislation, determined by the subject matter of the litigation and in other cases by the result of the litigation. That indeed is a common enough situation as the Judiciary Act 1903 Cth illustrates. If the question is determined by reference to the result of the litigation then it is not such a proceeding as that described in sub-s. (6) because you cannot before judgment determine whether an appeal will lie from the judgment. It is not to the point that there are other proceedings the nature of which is such that it can be said that whatever the result an appeal will lie and therefore a case may be stated or a question reserved in all such proceedings. Again it is not to the point to say that under other legislation it is possible to have a stated case in a criminal prosecution. Here the criterion is that the matter, which is the subject of the proceedings, must be such that it is one "with respect to which an appeal would lie from a judgment". If one cannot say, at the time at which the parties request that a case be stated or a judge proposes to state a case, that an appeal will in fact lie from a judgment, then such a case falls outside the scope of this particular procedure. It does not appear to me to matter how it arises that no appeal lies from a judgment in a particular kind of proceeding or from some kinds of judgment in particular kinds of proceedings. It will in all cases be a consequence of the words used by the legislature in this Act or any Act such as is referred to in s. 19 and the legislative policy may differ as between different kinds of proceedings or different kinds of subject matter. It is of no significance for present purposes that it is thought, any rate by some, that the present situation is unsatisfactory. That is for the legislature to determine and is not a consideration affecting the issue before this Court.

I can see no reason for limiting the reference to an appeal lying from a judgment of the Court to those peculiar cases in which, although there is an exercise of federal jurisdiction because the proceedings arise under a law of the Commonwealth, the defence and thereafter the appeal raise only matters which do not so arise, such as were discussed by the High Court in Collins v. Charles Marshall Pty. Ltd [10] and in Cockle v. Isaksen [11] . However if those considerations are adverted to they appear to me to support the view which I have expressed above because they demonstrate another category of matter arising in a federal court of original jurisdiction, or a State court exercising federal jurisdiction, where the question of whether or not an appeal will lie may or will depend upon the actual result of the particular proceedings. I can see no basis for confining the operation of the requirement that an appeal should lie from a judgment to the relatively rare kind of case discussed in the judgments in Cockle v. Isaksen when the words actually used appear to me to apply without any strained construction to proceedings of another character, namely criminal proceedings, where also the question of whether an appeal will lie will depend upon the result of the proceeding itself.

1. (1955) 92 C.L.R., at pp. 541-542. 2. (1957) 99 C.L.R. 155, at pp. 163-165.

For those reasons I am of opinion that the majority in the Full Court of the Federal Court were correct and that the application for a mandamus, and the application for special leave, should be refused.