Ly v Jenkins

Ly v Jenkins - [1943] HCA 13 - HCA 1943 case summary — Zoe

[47]

from the matter dealt with in Le Mesurier v. Connor (1), e.g., in these Regulations there is a precise definition of the courts, and there is also a precise definition of the conferred or invested juris- diction. The intention as shown by the Constitution is that the legislative power of the Commonwealth shall be used and the vesting of the judicial power shall come into operation as the occasion there- for arises. The power given by sec..77 (iii.) is a plenary power to make laws investing a State court with Federal jurisdiction. Parlia- ment has an unfettered discretion as to the mode in which it exercises that plenary power. One of the recognized and ordinary methods of law making is by subsidiary legislation such as regulations (Hodge v. The Queen (2); R. v. Burah (3); Powell v. Appollo Candle Co. Lid. (4); Le Mesurier v. Connor (5)). The power so given is the power to " make laws investing ", and not expressly and simpliciter "to invest." A regulation made and promulgated by the executive, which is an integral part of Parliament, in order to effectuate the investiture of a State court with Federal jurisdiction, has.the force of a law, and is a law of Parliament. The later expositions with regard to the discretionary powers of Parliament and Parliament's powers of delegation contained in Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan (6) and Wishart v. Fraser (7) cast doubts upon the correctness of the majority judgment in Le Mesurier v. Connor (1). The Regulations are not an exercise of judicial power, but are administrative provisions made for the pur- pose of carrying out the desire of the Executive to deal with the matters mentioned in sec. 5 of the National Security Act. They are provisions in respect of matters prescribed or necessary or convenient to be prescribed for the more effectual prosecution of the war. The Regulations may be separate and apart altogether from sec. 77 (iii.). They contain powers to inquire, to deal with matters inter partes, and in one case to make an order, but there is an entire absence of any provision for enforcement. Under the defence power, at least, the Commonwealth Parliament can impose any non-judicial functions upon a State court (Victorian Stevedoring and General Contracting Co. Pty. Ltd. v. Dignan (8); Shell Co. of Australia Ltd. v. Federal Commissioner of Tamation (9) ). A convincing distinction within the meaning of the last-mentioned case (10) is that a State court exercising State jurisdiction is a court, but a State court exercising

[57]

to ascertain and declare existing rights, duties or obligations ; the order made by the court is not conclusive ; the order does not create remedial rights but only varies or alters antecedent rights ; the order is not enforceable by the court ; the provisions of reg. 9 read in the light of Moses v. Parker; Ex parte Moses (1), render it non-judicial. If Parliament passed an Act providing that a court of law might set aside a contract which is too hard in its terms, that is not a judicial power, it is a rule of law. Non-judicial functions do not become judicial merely because they are discharged by a judge (Waterside Workers' Federation of Australia v. J. W. Alexander Ltd. (2) ; Shell Co. of Australia Ltd. v. Federal Commissioner of Taxation (3) ). The ordinary incidence of the judicial power is that the court merely applies existing law to existing facts; declares what are termed the damages or remedial rights of the parties; translates the ante- cedent rights; and makes a judgment or order and, ordinarily, can itself enforce that order. There is nothing to prevent the Commonwealth Parliament from choosing a State instrumentality, e.g. a State court or a judge thereof, for the discharge of a Common- wealth non-judicial function. The power can be given to a State judge as if he were a private citizen and if it interferes with the conduct of his ordinary duties Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (4) provides a complete answer. The vesting of this jurisdiction aids defence. The matter was discussed at some length in R. v. Federal Court of Bankruptcy ; Ex parte Lowenstein (5). In time of war it is definitely within the defence power to choose the persons regarded as the most proper and competent persons to perform that duty to the Commonwealth as distinct from the States. The duty imposed upon a State officer in relation to defence is a duty imposed in one sense upon a citizen of the Commonwealth. It is doubted whether Silk Bros Pty. Ltd. v. State Electricity Commission of Victoria (6) decides this precise point or is applicable. The Court should adopt a liberal view when construing sec. 5 of the National Security Act (Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan (7) ; Ex parte Walsh (8) ; Reference re Regulations re Chemicals (9) ). By sec. 5 of that Act Parliament, in effect, authorized the Governor-General to exercise the whole of its legislative power which conduced to defence. Sec. 77 (iii.) may be necessary in times

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44 HIGH COURT (1943. N.C. or A. yesides or carries on business; (2) in the State of Tasmania - a Court of Requests. Where the matter at issue exceeds in value £500 and does not exceed £2,000 and where it exceeds £2,000, tribunals being various courts of the States or the Territories are also specified in the Regulations (Statutory Rules 1942 No. 258). These Regulations were challenged on the ground that the constitu- -, tional power of the Commonwealth to make laws with respect to the naval and military defence of the Commonwealth was tran- p, scended, and also on the ground that the Regulations exceeded the powers conferred upon the Governor-General by the National Security Act 1939-1940, sec. 5. It was contended that the subject matter of the Regulations was beyond power, that the Parliament alone was authorized to invest State courts with Federal jurisdiction, that the National Security Act 1939-1940 conferred no power upon the Governor-General to invest State courts with Federal jurisdic- tion. The subject matter of the Regulations provided, it was said, for " fair contracts" and was in the same category as " fair rent " provisions which had the sanction of this Court in Silk Brothers Pty. Ltd. v. State Electricity Commission of Victoria (1). But it is unnecessary to express any concluded opinion upon this branch of the argument, for the case can be disposed of on another ground. The contention that the Parliament alone was authorized to invest State courts with Federal jurisdiction was based upon an opinion, but not a decision, of Knox C.J., Rich and Dizon JJ., expressed in Le Mesurier v. Connor (2). The Constitution provides in sec. 77 that, with respect to certain matters mentioned in secs. 75, 76, the Parliament may make laws investing any court of a State with Federal jurisdiction. "We think," said the learned judges, "that the natural meaning of the words of sec. 77 requires that the law made by the Parliament should not only define the jurisdiction to be invested but identify the State court in which jurisdiction is thereby invested. The power is to make laws * invest- ing,' not, as in sec. 51, ' with respect to,' a subject matter" (3). The same reasoning would, I should think, apply to secs. 76, 78, 96, 102, 105 and 122, and indeed it is somewhat difficult to follow the distinction' as regards sec. 51. But I have never been able to subscribe to this opinion and think it plainly contrary to the principle enunciated in Roche v. Kronheimer (4) and Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan (5), that the Parliament has plenary authority to make laws

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In the present case there is the following concatenation of circumstances; (1) A tribunal is required to discharge what is plainly a judicial act, that is to say, "an act done by com- petent authority, upon consideration of facts and circumstances, and imposing liability or affecting the rights of others" (Tonking's Case (4)). To the authorities cited in that case there may now be added R. v. City of Westminster Assessment Committee; Ex parte Grosvenor House (Park Lane) Ltd. (5). (2) This requirement is imposed upon a tribunal as a designated court. (3) In order. to adjust the rights of the parties a tribunal must consider the effect upon the contract, lease or mortgage of the circumstances attribut- able to the war or the operation of regulations made under the National Security Act. It must therefore construe the contract, lease or mortgage in order to determine the extent to which its performance has been affected by circumstances attributable to the war, or whether it was rescinded for default in its performance due to such circumstances. Where it is alleged that performance has been affected by the operation of any regulation made under the National Security Act, a tribunal must essay the task, often attended with considerable difficulty, of determining the legal effect of the regulation. In the present case a question of law arises whether the memorandum of mortgage is one which provides for payment of interest within the meaning of reg. 4a. A tribunal is therefore required to decide questions of law as well as of fact. A tribunal is authorized to make orders for the repayment in whole or in part of any amount paid in pursuance of a contract. Such an order would presumably be enforceable by execution in the same manner as any other order of the court. A tribunal can order the payment of costs, and such costs would presumably be taxed and recovered in the same manner as any other costs ordered to be paid by the court. All these circumstances taken in conjunction lead to the conclusion that the tribunals specified in the Regulations are intended to exercise the judicial functions imposed upon them as courts.

At a glance

Court

Decision date

Before

Source

Judgment (210 paragraphs)

Parties