Lorenzo v Carey [1921] HCA 58

Lorenzo v Carey [1921] HCA 58 - HCA 1921 case summary — Zoe

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Fruit Bexcn delivered the following written reasons: - H.C. or A. GJ., Gavas Durex, Powers, Riu asp Starke JJ. 1h swas a special case under the provisions of the Justices Act 1902. von that the respondent had been prosecuted on an informa- cry, tunder sec. 74 of the Commonwealth Crimes Act 1914 charging 'with making and furnishing a false statement. The information heard at Goulburn by a Police Magistrate of the State of New Wales, and was dismissed by him on the ground of absence 'mens rea on the part of the respondent. When the special case before the Chief Justice and Gavan Duffy and Starke JJ. an fion was taken that the appeal would not lie, and, as the objee- questioned the validity of sec. 39 of the Judiciary Act and its interpretation if valid, the Court directed it to be before a Full Bench. These questions have already been the Court in Baxter v. Commissioners of Taxation (N.S.W.) and we agree in the conclusions arrived at in that case, Sec. 75 of the Constitution gives to the High Court original juris- ion in certain matters therein specified. See. 76 enables Parlis to confer original jurisdiction on the Court in certain other Sec. 77 is as follows: "With respect to any of the 'mentioned in the last two sections the Parliament may make (x) defining the jurisdiction of any Federal Court other than High Court ; (11.) defining the extent to which the jurisdiction 'any Federal Court shall be exclusive of that which belongs to or 'invested in the Courts of the States ; State with Federal jurisdiction." Part VI. of the Judiciary Act deals with the original jurisdiction in sees. 75 and 76 of the Constitution, Sees. 38, 384 39 (1) purport to exercise the power conferred by sec. 77 (11.) {the Constitution. Sec. 38 makes the jurisdiction of the High in respect to certain specified matters exclusive of the juris- of the several Courts of the States. Sec, 384 makes the ion of the High Court exclusive of the jurisdiction of the Courts of the States in respect of the matters therein Sec. 39 (1) makes the jurisdiction of the High exclusive of the jurisdiction of the Courts of the States () 4 CLR, 1087.

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exclusive in the High Court by sec. 38a. : If the provisions of sec. 39 are valid, the eflect of the first sub- section was to take away from the Courts of the States any juris- diction they possessed to deal with such of the matters enumerated in sees. 75 and 76 of the Constitution as were within the original jurisdiction of the High Court, and the effect of the second sub- section was to confer on them a new jurisdiction to deal with all 'the matters enumerated in those sections except those comprised in sec. 384, whether such matters were within the original juris- diction of the High Court or not. But itis said that the provisions of see. 39 are not valid, and several reasons have been advanced in support of that contention. It was admitted that sec. 39 (1) would be a legitimate exercise of the power contained in sec. 77 (11) of the Constitution were it not for the alleged exception contained in sec. 39 (2), but it was declared to be invalid because of that exception. In support of this view Mz. Dizon argued that by reason of the exception the sub-section did not operate as a real exclusion because it gave back all that it took away, namely, the power to deal with certain matters in respeet of which the High Court had original jurisdiction. He also argued that the attempt to attach conditions to the exclusion was not within the power of Parliament and made the exclusion itself invalid. He said that although sec. 77 (11.) of the Constitution enables Par- liament to preseribe that the whole or any portion of the judicial power of the Commonwealth with respect to the matters mentioned in sees. 75 and 76 shall be exercised by any Federal Court to the exclusion of the Courts of the States, it does not enable Parliament to render the exercise of any part of such power by the Courts of the States subject to conditions. In other words, the exclusion of the State Courts must be absolute with respect to the area in which it operates, not conditional. We think these objections rest on &

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" Welonged to these Courts because it was not always amenable to 'the control of the High Court, and to replace it by a new jurisdiction which could be made subject to such conditions and restrictions as "Parliament wished to impose. Had the Legislature first made a ~ grant of jurisdiction under sec. 77 (111.) and then under sec. 77 (11.) ~ made exclusive in the High Court all the jurisdiction of the State Courts except that included in the grant, there could have been no "doubt as to the validity of the exclusion. We think this in substance _ is what they have done, though they have exercised their power under see. 77 (11.) and (111) not in the order we have suggested but jn the order of the sub-sections, namely, first the power of exclusion and then that of investiture. 'The effect of the first sub-section of see. "isto exclude the State Courts from the exercise of any jurisdiction with respect to the matters mentioned in secs. 75 and 76 of the "Constitution except in so far as jurisdiction is conferred by the "second sub-section by virtue of the provisions of sec, 77 (1m). Next it is argued that the second sub-section is invalid because itpurports to confer on State Courts a jurisdiction which they already "possess. Jurisdiction, it is said, is a power to adjudicate, and a Court cannot be invested with a power to adjudicate which it "already possesses. It is true that sub-sec. 2 of sec. 39 purports _ toinvest the Courts of the States with a power to adjudicate with

espect to many matters which were already within their competence 'notwithstanding the exclusion contained in the first sub-section. That exclusion operates only on matters with respect to which the High Court has original jurisdiction, and there are matters comprised insee, 76 of the Constitution in respect of which jurisdiction might Wve been conferred upon the High Court but has not in fact been _fonferred upon it because Parliament has not chosen to exercise its full power under the section. But in our opinion there is no reason

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mnto litigants the option to appeal to the High Court whether the H.-C. oF A. spreme Court jurisdiction be State or Federal. If then, as was 2 inlythe ease, the object of the Federal Parliament was to ensure, Losavo "4s far as it legally could, that cases of a constitutional nature should 'find their ultimate solution in the High Court, why should the Legis Jature refrain from pursuing its object in regard to the inferior Courts, " from which, without the investing of Federal jurisdiction, no appeal at all would lie to the High Court? To attribute an intention to 'the Federal Parliament, at once so senseless and opposed to the "admitted purpose of the section, is to furnish an answer to the argument itself. A strict examination of the wording of the section "is equally fatal to the contention. 'The expressions ' conditions and restrictions " in the connection in which they are found cannot be meant as conditions or restrictions of jurisdiction in the vitally destructive sense attributed to them, any more than so called con- ditions of sale of land are conditions in the sense that, if any one is 'broken in any particular, the whole sale is necessarily at an. end. 'There was abundant reason for investing the Supreme Court. with Federal jurisdiction quite apart from the question of appeal to the Privy Council. Once the jurisdiction became Federal the Common wealth Parliament could at will regulate the procedure and control the method and extent of relief, and, indeed, under see. 79 of the Constitution could even prescribe the number of Judges by whom the invested jurisdiction should be exercised. So far as sub-sec. 2 (a) is concerned it assumes that a decision has been given which, "apart from a possibie but not inevitable appeal of some kind, would "be of full force and effect. Its provisions, even if valid, are neces- sarily of later application than the determination of the Court appealed from, and are plainly a mere continuation of the effort to "Secure complete Federal control of the subject matter and not a 'sine qué non of all Federal intervention. If this portion of the enactment be eliminated, there still remains a consistent perfect Working set of provisions, as complete as the Federal power can make them, and capable of useful and beneficial operation." In our opinion sec. 39 is valid, and an appeal lies under it in this

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Judgment (60 paragraphs)