ies (1953)78! cons tatherston v Bi i Tale 003

ies (1953)78! cons tatherston v Bi i Tale 003 - [1906] HCA 64 - HCA 1906 case summary — Zoe

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case is not a decision of the Supreme Court in the sense in which that term is used in the Constitution. That is really the question which we have to determine. Before dealing with the Electoral Act 1904 on the meaning of which, toa great extent, the question must depend, I will refer to some considerations which have a general bearing on the matter. "The Supreme Court of Western Australia was originally constituted under a Statute of Will. IV., but its constitution is now defined in the Supreme Court Ordinance of 1861. By that Ordinance it was provided that there shall be established in the Colony a Court of Judicature which shall be a Court of record under the style and title of the Supreme Court, and the Court was invested with and empowered to exercise in the Colony and its dependencies all the powers and jurisdiction of the Courts of Queen's Bench, Common Pleas and Exchequer at Westminster ; and also all the powers and jurisdic- tion of the Lord Chancellor and of the Ecclesiastical Courts as they then existed in England as well as of Courts of Oyer and Terminer and general gaol delivery. The Supreme Court of this 'State therefore was a Court originally created to administer justice between suitors in respect to all kinds of civil rights, that is, all rights that could be enforced by legal procedure in any of the Courts of England, and also to administer the criminal law. The constitution of the Supreme Courts of all the other States was practically the same. These were the Courts which the framers of the Constitution had in view when the right of appeal was given from every decision of the Supreme Court of a State to the High Court; and I think that, prima facie, see, 73 should be construed as referring to Supreme Courts exercising jurisdiction of that kind. No doubt, if by Statute Some new right was created, which would be enforceable in the ifs Supreme Court if no other provision were made, an appeal from a decision with respect to it would lie to this Court. On the other hand, it must be borne in mind that it is always competent for a legislature of plenary jurisdiction to create a new tribunal for any purpose it thinks fit, and to declare that its decision shall be final and without appeal; subject, of course, to the pre- _ togative of the Sovereign and to any over-riding statutory right

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Supreme Court. The two members of the Supreme Court were personally designated to exercise the powers of the new Court, which were conferred in language almost verbally identical with that of Part XV. of the Act of 1904 now under consideration. Now, it is to be remembered that the jurisdiction to determine the validity of an election to a legislative body, is a matter not originally pertaining to the judiciary. According to our system of government the powers of the State are regarded as divided into the legislative, the executive, and the judicial branches, which are kept apart as far as practicable. The legislative branch always asserted the right to determine of whom its members should consist, and whenever they have thought fit to delegate a part of that duty to another tribunal, as they have done from time to time, they have nevertheless retained control to a certain extent. In all legislatures, since we have first known of them in Europe, one of the first duties of a body newly called together has been to verify the credentials of the persons claiming to be members of it. That is a matter very different from the kind of matters which the Supreme Courts of this and the other States were primarily constituted to deal with. Bearing these principles in mind, I will proceed to examine briefly Part XV. of the Electoral Act 1904. See. 159 provides that the validity of an election or return may be disputed by petition addressed to the Supreme Court, and not otherwise, and that the Supreme Court shall have jurisdiction to hear and determine the same. Sec. 160 directs what the petition is to contain, and see. 161 requires the deposit of a sum of £50 as security for costs. See. 162 enaets that no proceedings shall be had on the petition unless the requirements of the preceding sections have been complied with. By sec. 163 it is enacted that the Court shall be con- stituted by "a Judge sitting in open Court," who shall have power to declare that any person who was returned as elected was not duly elected; to declare any candidate duly elected who was not returned as elected ; to declare any election absolutely void ; to dismiss or uphold any petition in whole or in part ; and to award costs. The Court is required by sec. 164 to inquire whether or

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into the identity of persons, and whether their votes were improperly admitted or rejected; but the Court is not to have power to inquire into the correctness of any roll. See. 165 directs that the Court shall be guided by the substaatial merits and good conscience of each case without regard to legal forms and technicalities. This provision of itself suggests that it was not intended that an appeal should lie to a Court bound by legal rules. Then we come to sec. 167, which says: © All decisions of the Court shall be final and conclusive without appeal, and shall not be questioned in any way." See. 168 directs that the Master of the Supreme Court shall forthwith, after the filing of the petition, forward to the Clerk of the House of Parliament affected by the petition a copy thereof, and after the trial of the petition shall forthwith forward to such Clerk a copy of the order of the Court. Costs may be awarded, and the order certified by the Court may be entered as a judgment of the Supreme Court and enforced accordingly. Sec. 171 pro- vides that if any person returned is declared by the Court not to have been duly elected he shall cease to be a member of the Council or Assembly ; and if any person not returned is declared to have been duly elected, he may take his seat accordingly ; and if any election is declared absolutely void a new election shall be held. The necessary steps for that purpose are taken, not by the Supreme Court as incident to the execution of its judgment, but by the House to which the result of the investi- gation is certified. Upon consideration of the whole of these sections it appears to me that the inquiry directed to be held by a Judge of the Supreme Court is an inquiry merely inei- dental to and for the purpose of the determination of the right of a particular person to sit in the House of Parliament. It is an inquiry and determination for the information of that House, and effect is given to it by the House as it was before, but not until after it is informed of the result of the inquiry made by the Judge. I think, therefore, that, although sec. 159 says that the Supreme Court shall have jurisdiction, yet in substance it is not the Supreme Court, in the sense in which that term is used in the Constitution, that has jurisdiction, but that the real tribunal is a new tribunal consisting of a Judge of

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As has been stated, election appeals were originally within the competence of the House as to which the return was disputed. They were originally decided by the whole House of Commons, Afterwards, in 1770, Grenville's Act was passed which left the decision to a Committee of the House; and there was an Act passed in 1839 modifying the provisions as to committees; and - then in 1868 (as regards the House of Commons) the decision of disputed elections was left to two Judges selected from the Queen's Bench Division of the High Court of Justiee - the Court of Disputed Returns. The course of legislation in Western Australia appears to be similar; and in 1899 the local legislature delegated their powers to a Court of Disputed Returns, consist- ing of two Judges. I do not think it is disputed that there would be no appeal from a decision of that Court of Disputed Returns, as then constituted ; and the only distinction that has been made since is that by the Hlectoral Act 1904, in place of two Judges of the Supreme Court, there has been substituted one Judge of the Supreme Court. This decision of the Judge of the Supreme Court is not subject, like ordinary judgments of the Supreme Court, to an appeal to the Full Court. It is not a judgment of the Supreme Court as to person or as to property; _ if it were, there would be no need for the special provisions which are contained in part XV. of the Hlectoral Act 1904, giving power to award costs, &. If it were an ordinary judgment of the Supreme Court, that power would follow without express words; but, according to sec. 170, the costs awarded are to be recoverable as if the order of the Court were a judgment of the Supreme Court. From the very form of the words it is clear that it is not a judgment of the Supreme Court, but that these costs are to be recoverable as if it were a judgment of the Supreme Court. The substance of the position then is, that under the Electoral Act 1904 the return of the returning officer decides who is to be the member. Under sec. 131 the returning officer has to ascertain the total number of votes polled for each candidate, and the candidate who receives the greatest number of votes shall be elected. That return is final, subject to only one condition - a finding by a Judge of the Supreme Court. It seems to me that the nearest analogy in the practice of the Courts to the position

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