h Electoral (War-time) Act 1917. On this, I agree with H.C. or A.

ment made by my learned brother Barton. Ra Costs. - I agree that there should be no costs. TayLoR Aqronney-

vA w Durry anv Ricu JJ. We agree with what has been said os Gee brother Barton as to question 1. A LAND.

fe also agree with him in thinking that sec. 5 of the Colonial Gavan Duffy J.

'alidity Act (28 & 29 Vict. c. 63) enables us to answer ques)

and 3 in the affirmative. It provides that a representative

e shall, in respect of the colony under its jurisidiction, have

deemed at all times to have had full power to make laws ecting the constitution, powers, and procedure of such legislature, that such laws shall have been passed in such manner and s may from time to time be required by any Act of Parliament, patent, Order in Council, or colonial law for the time being in ce inthe said colony. In our opinion the word " constitution " in s collocation means " nature," " composition," or "' make up," e enactment enables a representative legislature to alter its ution as it chooses, to allot to the legislature such powers inks fit, and to prescribe the method in which it shall conduct gs. It may perhaps be that the legislature must remain a representative legislature as defined by the Statute, 'it is unnecessary in the present case to determine whether that not. This seems to us the plain meaning of the words used,

tt is urged that some less extended meaning should be given because of the earlier words of the section which run as "Every colonial legislature shall have, and be deemed at to have had, full power within its jurisdiction to establish judicature, and to abolish and reconstitute the same, and the constitution thereof, and to make provision for the ation of justice therein." It is said that the word " abolish" here where it is intended to give power to put an end to a nd that a similar word would have been used had it been to give power to destroy the Legislative Council, which egral part of the existing legislature. Had it been intended ve to a representative legislature power to enact that there be no legislature, the word " abolish" might well

have been used, but the vice of the argument lies in a between two distinct notions - the abolition of a legislat the abolition of a constituent part of such legislature. Mere

tegral part of it. The words of the section are properly ch express the powers sought to be conferred. It was intended colonial legislature should have power to constitute new ( and to put an end to existing Courts, to determine whether Courts should continue to exist or should cease to exist, as y to mould their form, prescribe their duties, and regulate th cedure, but it was not intended that a representative legisk should have power to produce anarchy by enacting that there be no legislature ; its powers are limited to determining what be the nature of the legislative body, what its powers of le; and what its methods of procedure. At the time the Legislatu Queensland passed the Parliamentary Bills Referendum Act of | it was such a " representative legislature." It is said that th of that enactment was to provide that in certain cases laws be made by the Legislative Assembly and the electors spe: means of a referendum, instead of by the Legislative Assembly the Legislative Council. We think its true effect was merely t limit the power of the Legislative Council by rendering its con rence unnecessary in the making of laws in certain cireumstai But, however this may be, it is clear that it was a law within tl competence of the then existing legislature, and that after its passa the Legislature of Queensland still remained a representativ lature within the meaning of the Colonial Laws Validity Act, therefore competent to make laws with respect to its own ci tion, powers, and procedure. It follows from what we havé said that a law to abolish the Legislative Council of Qu would be such a law, for it would leave the Legislature of Quee still a representative legislature within the meaning of the Colon Laws Validity Act. Further argument was addressed to us construction of the Parliamentary Bills Referendum Act. It said that an investigation of its terms showed that it was not int to apply to such a measure as a Bill to abolish the Legislative

was asked, could it have been intended to apply the pro- of the Referendum Act to a measure which itself would Referendum Act valueless, if it did not impliedly repeal it ? eno reason why the provisions of the Referendum Act should applied even in the case of a Bill designed to repeal the ndum Act itself. On this point we entirely agree with the taken in the Supreme Court of Queensland. Lukin J., in the judgment of the Court, said: '' We know of no reason Act should not be brought into existence which may be le to many purposes, and amongst those many purposes that will make its further application for any purpose from y nature impossible" (Taylor v. Attorney-General (1) ).

ally, it was said that sec. 10 of the Referendum Act of 1908 that the Bill shall be presented to the Governor for His "s assent, and that these words are not appropriate to a Bill course of law should be reserved for His Majesty's assent. that the words of the section are applicable to the case ill which is presented to the Governor for the purpose of being by him for His Majesty's assent as well as to that of a which the Governor assents on behalf of His Majesty. The ument on the construction of the Referendum Act therefore fails. agree with the rest of the Court in thinking that it is unneces- to answer question 4, and that there should be no order as to

J. The questions for the opinion of the Court are set out judgments just delivered. My learned brothers have dealt with the reasons why this Court should answer the questions way agreed upon by all members of the Court, that I propose very briefly to some of the reasons for my concurrence in ed answers to the questions submitted.

e that the answer to question 1 should be in the affirmative. for the appellants did not, in the end, press for any other

effect of sec. 5 of the Colonial Laws Validity Act 1865, (1) (1917) S.R. (Qd.), at p. 243.

passed two years before the Queensland Constitution Act of

Under the Colonial Laws Validity Act 1865 (an Imperial which is still in force) the Queensland Legislature as a " repre tive legislature " has had, at all times since the passing of the power to make laws respecting the constitution, powers, and cedure of its legislature, "provided that such laws shall have b passed in such manner and form as may from time to time be requi

law for the time being in force" in Queensland. The Queens Constitution Act of 1867 has been amended by the Queen: Legislature from time to time. The Act mentioned, in my opinion, authorized such amendments.

The Queensland Constitution Act Amendment Act of 1908 wi I assume, passed under the authority of the Imperial Act, and it is not now contended that that is not a valid and effective Act Parliament.

The Parliamentary Bills Referendum Act of 1908 was passed both Houses of Parliament, and assented to by His Majesty King. It was a law respecting the powers and procedure of Legislature, and was passed as an amendment of the Constituti in the manner and form required by the colonial law for the being in force. (See sec. 5 of the Colonial Laws Validity Act 186 I therefore hold that it was a law which the Queensland L lature had power under sec. 5 of the Colonial Laws Validity 1865 to pass, and that it is a valid and effective Act of Parliam:

The third question is: " Is there power to abolish the Legislative Council of Queensland by an Act passed in accordance with provisions of the Parliamentary Bills Referendum Act of 1908?" The question this Court is really asked to decide is whether th " Legislative Council" of Queensland - as one part of the Le, Jature - can be abolished by an Act amending the Constitution / passed in accordance with the provisions of a valid Act.

Any Act abolishing the Legislative Council by an amendment the Constitution passed in accordance with the Act mentioned wor be a law respecting the Constitution passed in the manner and fo required by the colonial law (the Queensland Constitution Act) for the time being in force (sec. 5 of the Colonial Laws Validity Ac

5), and in my opinion would be a valid and effective law passed the powers granted by the Imperial Act.

answer to question 3 should, therefore, be in the affirmative. ave read the judgment of my brother Isaacs, and I agree with ons so clearly stated by him for holding that, if there were her authority to support the Parliamentary Bills Referendum Act 8 than the Colonial Laws Validity Act 1865, the Act of 1908 ; a valid exercise of the power of the Queensland Legislature. agree also with him, for the reasons mentioned by him, when (1) : - " When power is given to a colonial legislature to alter stitution of the legislature, that must be read subject to the ental conception that, consistently with the very nature of stitution as an Empire, the Crown is not included in the ambit uch a power. I read the words ' constitution of such legislature ' luding the change from a unicameral to a bicameral system, e reverse. Probably the 'representative' character of the ature is a basic condition of the power relied on, and is preserved

State purposes one House is sufficient as its organ of legis- _ Some strong reason must be shown for cutting down the y meaning of the words themselves applied to such a subject

not think it necessary, holding the view I do about sec. 5 of

ial Act, to decide whether clause 22 of the Order in Council operates in any way which could affect the matter. I y think that, if the clause does so operate, the power given be wide enough to authorize the Queensland Legislature to the Constitution by abolishing the Legislative Council.

tion 4. - I agree that it is unnecessary to answer this question.

Questions 1, 2 and 3 answered in the affirmative. Question 4 not answered. As to question 5, no costs awarded. (1) Ante, p. 474.

H.C.orA. Solicitors for the plaintifis, F. J. Fitzgerald & Walsh and Can 1917.

ee & Peterson. TayLor Solicitor for the defendants, W. F. Webb, Crown Solicit Avronney. Queensland. 3 GENERAL OF QUEENS- LAND. Refd to pee {avin [HIGH COURT OF AUSTRALIA.] THE COMMONWEALTH. i Fi " . APPEL DEFENDANT, AND WOODHILL 4 E cs ; a . Respont PLAINTIFF,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

H.C. or A, Land - Acquisition by Commonwealth - Action for compensation - Conflict of Ta

1917. Jurisdiction of Supreme Court of State - State Court of competent juri aS tion" - Land becoming part of Federal territory - Cause of action - Sypney, transitory actions - Lands Acquisition Act 1906-1916 (No. 13 of 1906

Aug. 24, 27; of 1916), secs. 37, 38, 39 Seat of Government (Administration) Act 1910 (A

Sept. of 1910), sec. 11 - Seat of Government Acceptance Act 1909 (No. 23 o) Barton Tinacs sec, 8 - Jervis Bay Territory Acceptance Act 1915 (No. 19 of 1915), sees. and Rich JJ. Judiciary Act 1903-1915 (No. 6 of 1903 - No. 4 of 1915), secs. 39, 56.

An action to recover compensation for the compulsory aeqi by the Commonwealth under statutory authority is in its nature transitory.

'The words "any State Court of competent jurisdiction" in, sec. Lands Acquisition Act 1906 mean any State Court having j petent as to locality as well as subject matter.

On Ist May 1915 the Commonwealth, pursuant to the Lands Aeg 1906, compulsorily acquired certain land of the respondent at then in the State of New South Wales. On 25th August 1915 the. made aclaim for compensation in respect of such acquisition, On 4th

the Jervis Bay Territory Acceptance Act 1915 came into operation,and the H.C. or A. land in question thereafter was within territory acquired by the Common- 1917.

a On 5th May 1916 the respondent refused 9 - ~ Tue Com- MONWEALTH v. Woopmrtx.

nd was taken away by sec. 8 of the Seat of Government Acceptance Act 1909 hich is incorporated in the Jervis Bay Territory Acceptance Act 1915 by 4 thereof); that that Court was not a " State Court of competent jurisdic- " within the meaning of see. 37 of the Lands Acquisition Act 1906; and,

rat from the Supreme Court of New South Wales. An action in the Supreme Court was instituted by Charles Richings

e compulsory acquisition by the Commonwealth of certain land. Commonwealth moved, on summons, to set aside the writ on

ground that the matter was not within the jurisdiction of the me Court of New South Wales. The Full Court, to whom

Lands Acquisition Act 1906, a disputed claim for compensa- in action for compensation might then, under sec. 37, be

The Supreme Court of New South Wales was not, e cause of action arose, a Court of " competent jurisdiction."

When the Jervis Bay Territory Acceptance Act came into operation territory within which this land was situated became part of th Territory for the Seat of Government, and was within the provisio the Seat of Government Acceptance Act 1909, sec. 8 of which, pi to the power contained in sec. 111 of the Constitution, substituts the High Court for the Supreme Court of New South Wales to tl extent to which the latter Court had theretofore had jurisdiction By sec. 39 of the Judiciary Act Federal jurisdiction was confi upon the Courts of the States "within the limits of their se jurisdictions, whether such limits are as to locality, subject matt or otherwise," and the words " competent jurisdiction " in sec. 37 of the Lands Acquisition Act should be similarly construed as mea jurisdiction competent as to locality as well as to subject mat A claim for compensation under the latter Act is local in its natu and not transitory (British South Africa Co. v. Companhia de Moca bique (1); Sydney Municipal Council v. Bull (2); Potter v. Bro Hill Proprietary Co. Ltd. (3) ).

claimant in the land must be taken into consideration in the ac and the investigation of many local matters is involved. See 28, 29, 30. If the view of the respondent is correct, the Supren Court of any State would have jurisdiction, and an action for con pensation in respect of land acquired in Western Australia mi be brought in the Supreme Court of Queensland.

Flannery, for the respondent. An action for compensation unde the Lands Acquisition Act is not in its nature a local action. is a special form of action provided by the Statute for determining amount of compensation apart altogether from the question of The incapacity of the Courts of the States with regard to jurisdiction in respect of trespass to foreign land is not fundamental. It is an incapacity imposed by the Courts upon themselves. They not exercise their jurisdiction unless something more appears. mere fact that a question as to title to foreign land may incidental

(1) (1893) A.C., 602. (3) 3 CLR., 479. (2) (1909) 1 K.B., 7. (4) 4 T.R., 503.

s not oust the jurisdiction of the Court (Halsbury's Laws and, vol. v1., p. 201). The jurisdiction of the State Courts primarily upon the presence of the defendant. The ques- whether the Commonwealth can be sued in a State Court ends on whether the Commonwealth can be served in that State. onsidering the meaning of the words "' State Court of competent tion" in sec. 37 of the Lands Acquisition Act, the Court should din words having reference to the place where the cause of ion arose, which appear in sec. 56 of the Judiciary Act. A provision it an action for compensation under the Lands Acquisition Act may e brought in the High Court or in any State Court having jurisdic- mn as to the subject matter is reasonable. The only restriction that be expected is one as to jurisdiction as to the subject matter, the time such a claim is made the plaintiff has not the land but ly a claim against the Commonwealth in respect of its acquisi- The fact that in other sections, such as secs. 10 and 39,a found to the Supreme Court as meaning, by virtue of the ition in sec. 5, the Supreme Court of the State in which the ular land is situated, tends to show that it was intended by sec. s7 that an action for compensation might be brought in the Supreme wt of any State. Where a reference is made in the Act to the eme Court, one reason for restricting the particular proceeding » Supreme Court of the State in which the land is situated is questions of title have to be determined. [Counsel also referred irdar Gurdyal Singh v. Rajah of Faridkote (1).]

J. The appellant, which was defendant to a writ issued tl e plaintiff, who is now respondent, sought to set aside that The application was referred to the Full Court of New South , and by them dismissed. It comes to this Court on appeal.

ly acquired under the Commonwealth Lands Acquisition i (1) (1894) A.C., 670, at p. 683.

respondent made his claim for compensation. An offer made b Minister of State for Home Affairs was refused in writing by t respondent on 5th May 1916. Under secs. 35 and 36 of the Acquisition Act before mentioned the respondent's cause of arose on that day, not earlier.

The Jervis Bay Territory Acceptance Act (No. 19 of 1915) assented to on 12th July 1915, and commenced on the date fixed Proclamation (see sec. 2), namely, 4th September 1915. Consequ under sec. 4, sub-secs. 1 and 2, of the Jervis Bay Act the land acqi by the Commonwealth was within territory acquired by the Common- wealth for the Seat of Government, "to the intent that all a ordinances and regulations (whether made before or after the mencement of this Act) which are from time to time in force in

Court of New South Wales has jurisdiction to entertain an a for compensation in respect of that piece of land.

The Seat of Government Acceptance Act of 1909, sec. 8, gives High Court, until the Parliament otherwise provides, the jurisd

1911. belonged to the Supreme Court of the State and the Ju thereof. Sec. 10 must bé read with and subject to sec. 8. jurisdiction, then, was from January 1911 in the High G and not in the Supreme Court, at any rate in respect actions local in their nature. The strength of sec. 8 is iner by the fact that by sec. 11 of the Seat of Government (Admi tration) Act of 1910 the inferior Courts of New South Wales a continue to have for the enforcement of all laws in the Territ and the administration of justice therein the jurisdiction th which they had before the Administration Act. The si Courts of that State are not given any similar jurisdiction.

ender and acceptance of the Seat of Government Territory, the Jervis Bay annexe must be deemed to be part, the . of the Territory, original and additional, became subject to the sive jurisdiction of the Commonwealth (Australian Constitution, 1). Hence it has not been, since the surrender and acceptance, ofaState. Before the material date the State of New South had ceased to have any territorial right over it, legislative judicial, or any forensic jurisdiction over cases arising therein, pethaps so far as such jurisdiction could be claimed in cases nsitory nature.

Sec. 37 of the Lands Acquisition Act 1906 allows an action for id compensation to be instituted by the claimant against the mwealth in the High Court or in any State Court of com- ent jurisdiction. That such an action is in its nature local appears to be shown not only by its general character but by the com- effect of secs. 12, 28, sub-sec. 1, pars. (b) and (c), 29, 30, 42, 5, sub-secs. 2 and 3. The matter involved in such an action substance the failure to give a sufficient price for the land, in certain cases damages for severance and for deprecia- It was therefore a local matter arising outside the State of isdiction, so that the term "competent jurisdiction " does not to them in local actions. See British South Africa Co. v. ia de Mogambique (1) ; Doulson v. Matthews (2); also Potter Hill Proprietary Co. Ltd. (3). At the time of the passage Act there was no actually defined Seat of Government area. atever jurisdiction the Supreme Court of New South 'had in local actions before the passing of the Seat of Acceptance Act of 1909, I am of opinion that sec. 8 Statute took away, as the Federal Parliament had power xe away, from the Supreme Court the jurisdiction which ously had in such cases within the Territory, and left

Territory, so that after 4th September 1915 sec, 8 equ applied to the Jervis Bay Territory as a law "in force Territory for the Seat of Government." It is true that the Judie: Act of 1903 in sec. 56 allowed a person making a claim agains Commonwealth in contract or tort to bring a suit against Commonwealth in the High Court or in the Supreme Court of State in which the claim arose. In that section "making | claim " clearly means having any cause of action, but the caus action in this case, I repeat a local one, did not arise until a ti at which the land in question was not in New South Wales, that the claim did not arise in that State. Of course it is necessary to decide whether the present claim is "in contract o in tort," and I assume that it is in one or other of categories, merely for the purpose of dealing with the argum which the respondent's counsel raised upon that section. Reference was made to a passage in the judgment of Lord Selborn in the case of Sirdar Gurdyal Singh v. Rajah of Faridkote There his Lordship speaks of the general rule "that the pl must sue in the Court to which the defendant is subject at the tim of suit . . . ; which is rightly stated by Sir Robert Phill to 'lie at the root of all international, and of m domestic, jurisprudence on this matter.'" His Lordship goes on te say: "All jurisdiction is properly territorial, and extra territoriun jus dicenti, impune non paretur." Since the land in question was not territorially within New South Wales at the time when t cause of action arose, the passage seems to be much more ag than in favour of the respondent. Looking once more at sec. 37 the Lands Acquisition Act of 1906, it is as well to mention the re which the argument of the respondent on that section would if carried to its logical conclusion. When the land ceased within the territorial jurisdiction of New South Wales, the Su Court of that State ceased to be a Court " of competent jurisdictio within the meaning of that section (see Judiciary Act, see. sub-sec. 2), or it did not so cease. If it ceased, the argument f the respondent fails. But if it did not cease, if the cause of acti was, as the respondent contends, transitory and not local, tl (1) (1894) A.C., 670, at p. 683. '

ve been because the Supreme Court had some " competent ion " apart from its territorial jurisdiction. If that were the it could have no more jurisdiction conveyed by the term ent" than the Supreme Court of any other State, and to se that the Federal Parliament intended to empower the e Court, for instance, of Western Australia, to determine of land at Jervis Bay after the Seat of Government Acts Jervis Bay Acts became of force, is rather beyond serious

n of opinion that at the time this cause of action arose the Court of New South Wales had ceased to have juris-

superior Court other than the High Court; and that the must be allowed with costs and the writ set aside with costs.

J. Lagree that this appeal should be allowed. The only al fact, Pp. my opinion, is that at the time the writ was issued

had jurisdiction, reached their Ronalucien by different Haug us rested ig on the interpretation of sec. 37 of the

of the Supreme Court had attached when the resumption E the land then being within New South Wales, and ing has taken away that accrued jurisdiction. They avoided deciding the larger ground taken by Pring J. view was put forward in argument on behalf of the It was that which Pring J. did not decide, but which nor said would in any case be overcome by the words of the The view was that such an action is transitory, and for

namely, to assist the common law conception - the H.C. oF A.

words in sec. 37 "State Court of competent jurisdiction " be held to apply to the Supreme Court of any State, as well a the reason given by Pring J. that they may, if necessary, be overcoming the common law conception. None of these th can, in my opinion, be maintained.

It is common ground that as the right to compensation under a law made by the Parliament, the jurisdiction to de it is within the judicial power of the Commonwealth (sec. 76 0 Constitution). It is also common ground that unless by v some law conferring the right to proceed against the Common)

and ultimately the question comes down to what Pring J. dealt namely, the construction of sec. 37 of the Lands Acquisition A 1906. Put concretely the question, from all standpoints, mus "Is the Supreme Court of New South Wales a ' State Court of petent jurisdiction ' within the meaning of that section, in r to a claim for resumption of land which at the time of writ issu not within New South Wales?" If the wide view taken by Pri J. is correct, it is. But then, too, the Supreme Court of every othe State in the Commonwealth would by virtue of the same reaso have equal jurisdiction in relation to the same resumption.

In interpreting the Lands Acquisition Act, the funt conception to be borne in mind is that the acquisition of k which it permits is an exercise of high sovereign power. the exercise of legislative power in respect of a constituti right to acquire proprietorship, which is entirely distinct fi ordinary legislative control of the conduct of individuals i exercise of their own rights. But being a sovereign ac in any way dependent upon the law of any other juti that act itself, and its conditions and attendant conseque involving all the relations between the sovereign and the fo owner, including the mode of compensating him and the tribun for ascertaining the amount of compensation, must - sub the provision as to "just terms" in placitum xxxt. of sec. the Constitution - be within the discretion of the Common)

nent. The circumstances of such a transaction are not ble so as to be transitory as a contractual right is transitory. nherently wrong to attribute to the relations so created a y which would enable the Courts of any other jurisdiction -

ance - to determine the obligations arising from such an

tate resumption. For instance, a New South Wales resump- s not justiciable in Victoria. Therefore, the widest of all the ropositions - namely, that advanced at the Bar in aid of the ; is fundamentally unsound.

Then comes the view of Pring J. which, for the purpose of argu- concedes that unsoundness, but rests on the permission of the ment. This involves an examination of the structure of the

distinctly recognized the principle of State locality that the

ew cannot be maintained. The Act, when read as a whole, u nd to be in effect a code dealing specially with the matter and med upon the principle that, except where the High Court is the Courts of the jurisdiction where the title to the land shall determine all questions in connection with the matter.

s the Commonwealth to acquire lands compulsorily from a an individual (as well as by agreement), and, if compulsorily, fication. Sec. 17, on which the majority in the Supreme ently based their opinion, says that upon publication of ition " the title of the State to any Crown land specified tification shall be taken to have been converted into a claim tion." Observe first, that a State is placed in precisely position as an individual, and also that the words " claim ition" mean " property " not a demand. Ownership

converted into personalty, namely, what is there called a

H.C. or A. "claim for compensation," in the sense of a right to tion. That is then the former owner's transformed right. . is borne out with particularity in secs. 26 and 27. Dj commencing with sec. 32, deals with the mode of asse

Woopmnr. enforcing that right. Sec. 32 says: " Any State or person

Isaacs J. to be entitled to compensation under this Act may make a cla compensation." It must be in writing, and served on the Min and is then deemed to be "made." A claim may or may

" Téa claim is made, the Minister may agree with the

ant - individual or State. The Minister has up to one hund

twenty days to examine the claim and notify that he agrees, or th

disputes the claim. If he agrees, then no resort to a Court is ne or possible to determine the compensation. If the parties donot:

an action for compensation against the Commonwealth in th Court or - and here come the important words - " in any State ( of competent jurisdiction," subject to certain provisions in the section mentioned, which I shall presently refer to. If, ; reason, no proceeding is instituted by the claimant within six

• and the dispute is not otherwise settled - the Minister by may apply to have it determined either by the High Court or b State Court in which an action for compensation might be institu t In otber words, the Courts are to be the same, whether the cla sues or the Minister applies. Consequently, if sec. 37 means th the Court of any State whatever can be invoked by a claim

or by any Local Court in Tasmania, according to the amount el And by sec. 38 (4) the decision is final and conclusive and w. appeal. yi E Before accepting that construction, let us look further at | Act. It may be that the claimant has not within six mor made a claim for compensation, and has not applied for further ti to do so. In that case there is no " disputed claim," and si and 38 do not apply. Sec. 39 then operates. The Minis

a Court to have the matter determined. But to what No claim being made, there is so far nothing to guide one mt, and therefore no one can say whether any inferior ould ordinarily have jurisdiction. So the section provides Minister may apply to the High Court or the Supreme the Minister considers the compensation awarded will be £500. But if he considers it will not amount to more 0, he shall apply to a County, District or Local Court - that est inferior Court in the several States. Sec. 39, dealing mstances which do not themselves indicate which Court "competent jurisdiction," itself fixes a guide.

sec. 39 helps materially to interpret secs, 37 and 38 - these with the alternative case. Sec. 39 uses the words " the Court." By the interpretation section, "' the Supreme is defined in the absence of contrary intention (and here none) to mean "the Supreme Court of the State in which is situated"; consequently no application be ide under that section to the Supreme Court of er State. The Act, however, does not so define County or District Court or Local Court. And so, if the view d by the appellant supporting the opinion of Pring J. be

00 could be made to the County Court of Victoria as to land

, by reason of the definition, could not entertain it. Reading then, with the interpretation of " Supreme Court " and all plies, and reverting to secs. 37 and 38, and reading sec. 37 through, it seems plain that the expression " State Court of

'situated, and having jurisdiction up to the amount claimed. . (c) of sec. 37 directs the Supreme Court to have regard to the it the action might have been brought in "a lower Court." mean a lower Court of that State. If the respondent's tight, it is difficult to imagine why the Legislature, so as to costs in a lower Court, said nothing about the extra bringing the other party into the Supreme Court of a distant

tern Australia, though, if over £500, the Supreme Court of-

State, to which all the witnesses might have to travel thor u miles. The second view contended for is, therefore, also unsustai Lastly, we come to the narrower ground accepted by Sly and guson JJ. The jurisdiction of a Court may be understood in senses than one. We may speak of a Court's jurisdiction in a gen

sense, as when we say the Supreme Court of a State is a Co of general jurisdiction. But if the word is used in relation to a specific cause, the Court has jurisdiction only if seised of it. Supreme Court of New South Wales was not seised of this matter before the writ was issued, which was on 7th March 1917. On 4th September 1915 the land had ceased to be part of New South Wal and, after that, there was no Court of a State that had diction under sec. 37 of the Lands Acquisition Act. It need some other provision of the Commonwealth Parliament to con such a jurisdiction. But admittedly there is no such provisi The Jervis Bay Territory Acceptance Act 1915 (No. 19 of 19. applies the provisions of the Lands Acquisition Act 1906 to acquisition within the territory from private persons. It also, sec. 4 (3), incorporates (inter alia) sec. 8 of the Seat of Governi n Acceptance Act 1909 (No. 23 of 1909), which within the territor transfers to the High Court the jurisdiction which the Suprer Court of the State theretofore had. As to jurisdiction inferior to that of the Supreme Court, by sec. WL of the Seat of Government (Administration) Act 1910 (No. 25 of 1910 it is vested (sub modo) in the inferior State Courts of New South Wales. Therefore the Supreme Court of New South Wales eliminated entirely as to the territory. The result is, then : (1) the claimis not transitory ; (2) sec. 37 di not confer jurisdiction, irrespective of situation of the land, on ev Supreme Court and on every inferior Court all over Austr provided the " amount " claimed is within its ordinary jurisdiction (3) the jurisdiction in this particular case did not attach to Supreme Court of New South Wales before 4th September 19. and could not attach then or afterwards. The appeal should therefore be allowed.

uthorized by my learned brother Rich to say that he agrees H.C. oF A. 1917.

Tue Com- Appeal allowed. Order appealed from discharged soxwsarm with costs and writ set aside. Respondent woovuns.

citor for the respondent, R. J. Jacobs. Ml rh : sande TB. Tig

HE NEW QUEENSLAND COPPER COM- | Y LIMITED AND ANOTHER ' i ESPONDENTS. _ Devenpants,

Construction - Mining company - Loan by Government - Agreement for H, C. ov A. out of profits - Compulsory liquidation of company - Right of Crown 1917. . ee

nan agreement by which the Government of Queensland agreed to advance July 30, 31

moneys to a mining company to aid in developing its mines, it was

that such moneys were to be "repaid out of the profits which shall Parton, Isaacs, Gavan Duffy,

be derived by or accrue to the company from the working of the | Powers |

es." After the advance was made the venture failed, and the company "ss

Held, on the construction of the agreement and in the surrounding stances, that the moneys advanced were repayable out of the profits and not out of the company's assets generally. :

Decision of the Supreme Court of Queensland (Lukin J.): The King v, New Queensland Copper Co. Ltd., (1917) S.R. (Qd.), 194, affirmed.

Appear from the Supreme Court of Queensland. The New Queensland Copper Co. Ltd. was the owner of ce' copper mines in the Mount Perry District, which, during the y 1900 to 1911, had been fairly successful, and had led to the set ment in the district of several thousand people. Owing, howe to the low prices obtainable for copper, the operations had fall off, and the population became reduced to less than a thousa and on 31st July 1911 the mines were closed down. On 16th Aug of the same year the directors opened negotiations with the Gove ment for financial assistance to enable them to resume wo. on the ground that it was in the interest of the State as well as of Company that the working should continue. On 20th Septem! y the State Mining Engineer recommended the grant of assistan and on 12th October this recommendation was approved of embodied in an Executive minute. A draft agreement was dra up, and, after consideration of various suggested alterations, agreement was executed on 23rd March 1912, which provided for: loan by the Government to the Company of £1 for every £1 expended. by the Company up to £3,000, and for the supplying by the Comp to the Minister of "a copy of the annual statement of acco assets and liabilities, profits and losses," &c. Clause 6 providec that "the amount so advanced as aforesaid shall be repaid to th Government out of the profits which shall hereafter be derived or accrue to the Company from the working of the said mines and subject to the terms of this agreement there shall not be divided amongst or paid to members or shareholders of the Company a profits or dividends or bonuses or any returns of any kind until th Company has repaid the advance to the Government." Under thi agreement the Company received £3,000. On 12th November 1 a further sum of £1,000 was advanced on the same terms as th set out in the original agreement with respect to the £3,000. N withstanding this assistance, the works did not prosper, and on [

1914 the Company was compulsorily wound up by order H- C. or A. the Supreme Court under the Companies Acts 1863-1909. meaty these facts an action was brought by information in the name 'Tux Krxe e Attorney-General for Queensland, for and on behalf of The Naw against the Company and the liquidator of the Company, oe repayment of the £4,000 advanced to the Company; or, Co. Lrp. matively, declarations that the Crown was entitled to prove in ey ding-up of the Company for that sum and to be paid in

y to all other creditors, and (inter alia) an account of the

made by the Company since 23rd March 1912. The action

d by Lukin J., who held that the Crown was entitled to

d out of the profits (if any), and out of such profits only, and

nder the terms of clause 6 the Company had been and still

bound to supply proper statements of accounts, which he

order unless the Company should satisfy him that no profits

cerued ; further consideration was reserved, with liberty to

this decision the Crown, by leave, now appealed to the High

n A.-G. for Qd. and Graham, for the appellant, referred to wing cases: Lowe v. Dorling & Son (2); Mathew v. Black- ); Watling v. Lewis (4).

um K.C. and Wassell, for the respondents, were not called on.

N J. read the following judgment : - There are two ques- July st this appeal. The first is whether, under an agreement een the Secretary for Mines on behalf of the Govern- Queensland and the respondent Company, certain sums by the Minister to assist in further developing the mines

SR. 194. (3) 1H. & N., 762. Aer a oe t p. 784. @ (igi) 1 Gh, 414.

i. pes A. are repayable only out of the profits to be derived from the wo ; of the mines, or whether they constitute a debt recoverable out

Tae Kine the Company's assets generally. (The Company is now in New _pulsory liquidation.) The second question is whether the Compa nj bottpalaraie in the event of the second of these propositions being held to e Co. Lrp. the meaning of the agreement as it stands, is entitled to have

Barton J. agreement rectified so as to express the first of the proposit

which the respondent Company contends to have been establis by evidence as the intention of the parties. We invited counsel for the appellant to address themselves in

the meaning of the agreement is the right one - that is to say, the advance is expressed to be repayable out of profits only.

The original agreement, dated 23rd March 1912, relates to the sum of £3,000. Later in the same year there was an agreement between th same parties for a further advance of £1,000, by which it was a that all the terms of the original agreement relating to the paym of advances to the Company, and for the security and repayment the Government of the total amount advanced, should apply to additional sum of £1,000, the subject of the second agreement. Both sums have been advanced to the Company, and the appellant claims payment of the whole £4,000 or alternative relief, including an account of profits. js

The treatment of the whole advance of £4,000 thus depends on the construction of the agreement of 23rd March 1912.

Under that agreement the advance (called in the recitals a "lo or subsidy ") was to be paid at the rate of one pound for ever pound provided by the Company.

The portion of the agreement on which the question of its mean principally turns is contained in the first seven lines of clause 6, js as follows: " The amount so advanced as aforesaid shall be repa to the Government out of the profits which shall hereafter be deri by or accrue to the Company from the working of the said mi

ul yject to the terms of this agreement there shall not be divided or paid to members or shareholders of the Company any or dividends or bonuses or any returns of any kind until Company has repaid the advance to the Government." There is ither in this clause or in the rest of the agreement, any provision repayment of the moneys otherwise than out of the profits that by clause 8, under circumstances which are not ded to have arisen, the Minister is empowered to cause or e the Company to let the mines and plant on tribute on terms by him up to a certain point, and to receive half of the s obtained from the tributors towards repayment of the the other half to be retained by the Company. This, is clearly intended as an alternative or rather subsidiary source, only source or method of repayment save that specified in 6 as quoted, and I think it strengthens the contention of the spo ndents, for it helps to exclude the implication of sources of nent other than those expressed in the agreement, to one only ch the appellant is now, in my opinion, entitled to have

et parts of clause 6 were adduced by Mr. Graham as tending that that clause let in the implication of a general and ed liability. I am unable to accept these contentions, that every passage adduced is perfectly consistent with, perhaps have said assistant to, the primd facie meaning of e quoted, which seems to me to be unambiguous in itself, e absolute in the absence of any expression inconsistent prima facie purport. the part of his judgment dealing with the interpretation eement as it stands, Lukin J. cited the case of Mathew more (1), where the observations of Pollock C.B., at p. 772, 'decision founded thereon are very much in point on the

famlyn & Co. v. Wood & Co. (2). It is impossible, I think, ki J. points out, that "the parties must have intended the 1 1H. &N,, 762. (2) (1891) 2 Q.B., 488.

suggested stipulation of repayment independently of the qu of profits." Not any of the cases cited for the appellant appea support his contention that a general and unrestricted lial exists where a particular source of repayment is specified in which plainly suggest, as these terms do, restriction to that sou

Though it is not necessary, it may as well be pointed out that clause 2 the Minister has apparently sought to secure himself and

Government against an implication which his participation in risk of loss might otherwise be argued to convey.

Iam therefore of opinion that the appeal must be dismissed, the case must proceed on the lines laid down by the learned Justice at the trial.

Isaacs J. read the following judgment : - The first questio whether the contention set up on behalf of the Crown in par. 9 of th statement of claim is well founded. If it is not, then, subject well established principle of law which I shall presently mention there is an end of the Crown's case. :

In par. 9 it is contended that, upon the true construction of agreements sued on, the Government of Queensland is entitled payment of the moneys advanced whether the Company has any profits or not. The written document that was executed as final and complete expression of the bargain which the partie: made is, so long as it stands unaltered, conclusive evidence of their respective obligations. And it must never be forgotten that 1 he

proper construction of a contract, as Lord Atkinson recently said

construed depend upon the intention of the contracting parti disclosed in the document itself." This, as I took occasion emphasize in Gordon v. Macgregor (2), where the judgment of L Blackburn in the leading case of Inglis v. Buttery (3) was ci excludes from our consideration in interpreting the contract all the prior negotiations. I shall quote only a few words of Li

(1) (1915) S.C. (HLL), 20, at p. 27. (2) 8 CLR., 316, at p. (3) 3 App. Cas., 552, at p. 57.

the expressed provision in clause 6 that the amount need should be repaid to the Government out of the profits e by the Company in working the mines, and notwithstanding ibsence of any words in the agreement which expressly give own the right of demanding repayment of the sums advanced her profits are made or not, yet such a right is to be implied, Tlook at the circumstances to see whether the agreement, read whole by the light of those circumstances, is one where the law es make such an implication. e authority to lend the money is contained in two annual opriation Acts (Act of 1911-1912, No. 4, and Act of 1912-1913, }). In the first a sum of £10,000 was voted to the Department nes for "loans in aid of deep sinking in mines"; and in the mining." In other words, Parliament sanctioned, as a matter lic policy and for the general welfare of Queensland, the gof money inaid of mining in order to benefit the community hing the mineral wealth of the State, and to win the gold er metals which lay yet untouched and reserved and belonging e Crown, but which private enterprise was by mining laws to obtain.

ivate persons risk their own money in a very hazardous venture ich, if successful, means profit to themselves and benefit to the nmu nity, and which, if unsuccessful, means loss to them but not ily loss to the rest of the public. It is plain that, when the of Mines proceeds to carry out such a policy, he is not to be d as a mere money-lender having no interest whatever in the n but that of getting his money back again. There is no therefore, for regarding the contract which was reducéd to g as raising any implication that the Minister was to have the

OF AUSTRALIA. 501 may look at " surrounding circumstances." He said : - " You H. ©. or A. _is the intention expressed in the words, used as they were ae d to the particular circumstances and facts with regard 'Tax Kixe vhich they were used. The intention will then be got at by lookin; New vhich they got at by looking hat the words mean in that way, and doing that is perfectly C7EESSEANP te." Co. Lap. , when on behalf of the Government it is said that notwith- Isaacs.

H. C. or A. money back, whether the enterprise resulted in loss or gain. I oe the contract as in effect saying, apart from tributing, that pi

Tur Krxe the Company had sufficient confidence in the venture as to risk i

Niw own money the Crown as representing the general communit

QuEENSEANP would aid the venture with an equal amount up to the limit sta Co. Lrp. that if the venture failed, so much the worse for all, if it suces Isaacs J, the Crown should first have its money back and then the pi

were to go as if the Crown had never assisted. The position i plain on general principles that it does not need the authority Mathew v. Blackmore (1), cited by Lukin J., a case, however, whic

I therefore reject the contention made, and now refer to th only outstanding consideration which I think relevant. It appears that the Company has been compulsorily sequestrate and that the official trustee, acting under the sanction and direction of the Court, has let the mine on tribute to other persons. If the Company itself after receiving the advance had voluntari y let its mine on tribute without the Crown's consent, then I should have been strongly disposed to apply the principle to which I referred, and which is contained in the case of Burchell v. Gowrie and Blockhouse Collieries Ltd. (2). There Lord Atkinson, speaki for the Privy Council, adverted wita approval to the rule of law laid - down by Willes J. in Inchbald v. Western Neilgherry Coffee &c. Co. (3), in these words (4): "I apprehend that wherever money is to - be paid by one man to another upon a given event, the party upon - whom is cast the obligation to pay is liable to the party who is to receive the money, if he does any act which prevents or makes it less probable that he should receive it." But as this cannot, in the circumstances, 'be said of the Company

in the present case, the matter is left to the bare consideration of the primary obligation created by the contract, and, as that leaves the Crown right dependent on the existence and extent of the profits

. made, the judgment of Lukin J. should be affirmed, and this appeal ?

dismissed. . 3) 17 C.B, (N.S.), 733, at p. 74. ey fistoy AGL Be i (1910) Not ae 6.

ran Durry J. read the following judgment : - For the reasons 1. ©. or A. have just been stated, I agree with the other members of the bate

in thinking that the moneys advanced by the Crown are Tue Kine

able only in the circumstances expressed in the agreement. yyw isposes of the case, for the Crown has failed in its attempt to QUEENSLAND

itor for the appellant, J. S. Hutcheon, Crown Solicitor for itors for the respondents, Morris & Fletcher for Hamilton & Bundaberg.

~PANKHURST é 3 3 3 'it on DerENDANT, f AND PORTER s 'i Ca ' ee Se INFORMANT, DrreNnDANT, AND PORTER i : 5 2 2 i . . Respoi INFORMANT, BAINES 6 : : 5 2 3 Ee DEFENDANT, AND PORTER Ried ic. $ . ae INFORMANT,

H.C. or A. ON APPEAL FROM A COURT OF PETTY SESSIONS: 1ouTe OF VICTORIA. -

MELBournE, War Precautions - Regulations - Offence - Unlauful meeting - * Pretext," m Oct. 2. - War Precautions (Supplementary) Regulations 1916, reg. 27 (:

Barton, Is 20s, 1917, No. 182). : iggins, Gavan Duty, By reg. 27 of the War Precautions (Supplementary) Regulations 1

Rich 3S, provided that (1) Tt shall not be lawful for any number of persons e3

ty to meet in the open air in any part of the proclaimed place for any wful purpose or for the purpose or on the pretext of making known their ievances," &c.

Held, that the word " pretext" in the regulation means a pretended, as inguished from the true, purpose.

the Court of Petty Sessions at Melbourne three informations heard whereby the informant Richard John Porter, a constable olice, charged that Adela Constantia Mary Pankhurst, Alice and Jennie Baines respectively did, contrary to the War ions (Supplementary) Regulations 1916 made under the War fions Act 1914-1916, " take part in a meeting of a number of s exceeding twenty in the open air in a proclaimed place efined by clause 6 of reg. 27 of the above Regulations) on a of making known their grievances." Each of the defend- is convicted, and each appealed to the High Court by way of review on the grounds (inter alia): (1) (as amended on the of the appeals) that the War Precautions Act 1914-1916 and lations thereunder were ultra vires and invalid, and (2) that sno evidence that any number of persons exceeding twenty n the open air on the pretext of making known their grievances. he three appeals were heard together.

econd ground was argued, and as the appeal was determined , the first ground was not discussed.

terial facts are stated in the judgment of Barton J. here-

¢ (with him Foster), for the appellants. The word " pre- n reg. 27 means a pretended purpose as opposed to the real and there is no evidence that the purpose put forward was e real purpose.