of law. The court has held in Thompson v Mastertouch

Federal Court of Australia|1979-08-06|Before: Stephen J, Smithers J, Sweeney J, Evatt J, Northrop J

SWEENEY J: The court notes that these matters are appeals against orders by his Honour Mr Justice Smithers in which he dismissed after a hearitig on the mérits summonses issued by the present appellant against the respondent. The matters were clearly in our view criminal matters. Objection is now taken to the competency of the appeal. As has been said there have been recent decisions of this court on that question of law. The court has held in Thompson v Mastertouch and again in Burgess'scase that an appeal against dismissal of a summons alleging a criminal offence where there has been a hearing on the merits is incompetent,

We feel as a court that we should follow those previous decisions. A further objection was

: " but we note that counsel for the respondent has made

1 oR claim that that point is not now pressed. In the

VA circumstances, Mr Ormiston for the appellant, has taken t

in our view a proper course of agreeing that it would be the appropriate course for this court to follow

the previous decisions. His client's attitude is that the appeal is competent and we are informed that further proceedings are contemplated. In the circumstances the only order we propose to make is that the appeals be struck out as incompetent. There is no application

for costs, Mr Marks, but we assume there is no question under section 197A.

'MR "MARES: We would assume that, if the court pleases.

EVATT J: I coneur that the appeals should be struck out and -have nothing further to -add.

NORTHROP J: I likewise concur that the appeals should be struck out for want of competency and concur in the remarks made by the presiding judge, but there are some comments of a general nature that I desire to add to what has already been said.

. On 9 July 1979 the Federal Court of Australia constituted by a single judge, in the exercise of jurisdiction conferred by section 19 of the Federal Court of Australia Act 1976, as amended, and by section

. 118A Conciliation and Arbitration Act 1904, as amended, made orders dismissing 3 informations brought by the 4 appellant against the respondent alleging breaches of

see sections 118D and section 191 of the Conciliation and Arbitration Act. The appellant, relying upon section 24 sub-section 1 paragraph (a), Federal Court of Australia Act, seeks to appeal from the orders so made. The respondent has given notice of objection

19 ALR 547, a decision of a full court of the Federal Court of Australia. The substance of that decision was that section 24 sub-section 1 paragraph (a) of the Federal Court Act does net confer jurisdiction upon the Federal Court to hear and determine an appeal from a judgment, order or decree which constituted an acquittal on a criminal charge after a hearing on the

constitute acquittals on criminal charges after a hearing on the merits.

The doctrine of precedent which has application to the Federal Court of Australia is stated in Viro v The Queen (1977) 18 ALR 257, and I quote the following passage from the judgment of Stephen J at pages 289 to 290:

The first duty of a court is to administer justice according to law. However in the

a system where the doctrine of precedent applies, the existence of authority binding upon it determines for it what it must understand to be the law. It must accept the law to be as that precedent authority has declared it to be, whatever may be its own inclinations in the "matter. The sanction implicit in the doctrine of precedent is simple and effective; if an inferior court fails to observe the doctrine the superior court will correct its decision on appeal. Thus the existence of an anpeal is inherent in and essential to the doctrine.

The position of a final court of appeal -its decisions subject to no appeal to a court superior to it, is otherwise. It too must : administer justice according to law; as Isaacs J said in Australian Agricultural Co v Federated Engine-Drivers' and Firemen's Association of Australasia (1913) 17 CLR 26! at 278, "our sworn loyalty is to the law itself". .But it may neither surrender, nor be relieved of, its responsibility to find what is the law by an involuntary adoption of the decisions of any other court. It may impose upon itself a rule that it will accept as absolute the binding force of its own past decisions, a course which, for the several reasons referred to by Dixon J in Attorney-General for NSW v Perpetual Trustee Co (Ltd) (1952) 85 CLR 237 at 244, the High Court has not done. Subject only to that possibility, it must otherwise wholly accept the responsibility of itself declaring what it regards to be the law, even if the views of other tribunals, however respected, are

to a contrary effect. Their views will, of - course, be of great force in the formation of its own conclusion but at the end of

the day what must prevail must be its own conclusion, ,

The application of the doctrine of precedent in its application between decisions of different full courts of the Federal Court of Australia has yet to be authoritatively stated, but in this regard very helpful opinions have been expressed by the English Gourt of Appeal in Young v The Bristol Aeroplane Company Ltd (1944) K.B, 718.

In the present case counsel for the appellant has stated that this would be an appropriate case to question the decision in Mastertouch but that it would not be appropriate to make more submissions to this

the High Court from a judgment or order made under the Conciliation and Arbitration Act by a full court of the Federal Court of Australia either if the High Court grants leave to appeal under section 118B of that act or if the High Court gives special leave to appeal under section 33 Federal Court of Australia Act, I am not prepared to consider whether Mastertouch was wrongly decided. This approach is similar to that adopted by me in Henderson v Pioneer Homes Pty Ltd, a decision of a full court of the Federal Court of Australia given on 2 May 1979 where, as a member of

a full court, I applied Mastertouch although pointing out that it was unfortunate that Cockle v Isaacson (1957) 99 CLR 152, was not mentioned in the reasons

for judgment in Mastértouch and made a refefence to English

legislation in a materially different form to section 24 of the Federal Court of Australia Act and with respect to which the stated principle of common law was applied, see Bensor v Northern Ireland Road Transport Board (1942) AC 250. This approach is similar to that adopted by

a full court of the Federal Court of Australia in Thompson v Riley-Mackay Pty Ltd, a decision given on

22 June 1979, and by a full court of the Federal Court of Australia in Burgess v John Connell-Mott Hay and Anderson Pty Ltd a decision given on 24 July 1979. In each of those three cases an appeal lay to the High Court.

In the absence of any authoritative decision given by the High Court on this matter, it is my opinion that in cases where an appeal can be taken to the High Court, a full court of the Federal Court of Australia should apply the decision in Mastertouch. This does not mean that in other cases where no appeal can be taken to the High Court from a judgment or order of a full court of the Federal Court of Australia that full court will, of necessity, refuse to consider whether Mastertouch was wrongly decided. Both the High Court of Australia and the House of Lords in England, being final courts of appeal, will, in appropriate cases

consider whether an earlier decision has been wrongly decided.

An analagous type of problem was referred to . over 100 years ago by Chief Baron Pollock in Taylor . v Burgess, 1859 5 Hurlstone and Normans Exchequer Reports 1 at page 15, and I quote:

When a case can be taken to a court of error, the decision of one court of co-ordinate jurisdiction ought to be binding on the others. When, however, there is no means

not the same obligation to follow the decision of another court; and accordingly we sometimes find courts of co-ordinate jurisdiction differing from each other.

_ I refer also to what was said by Stephen J in Viro's case and which I quoted earlier.

Since in this case the appellant, if so advised, may appeal to the High Court from-the -order this court proposes to make I agree in the order being made.

Finally, I would note that the respondent does not propose to proceed with the grounds of objection to competency insofar as they relate to the failure to serve the notice of appeal within time.

I concur in the order suggested by the presiding judge.

; SWEENEY J: The order of the court will be in the terms I ' announced earlier. The court will now adjourn sine ' die. .

AT 10.48 A.M. THE MATTER WAS ADJOURNED INDEFINITELY

IT certify that this and the /eur preceding pages are a true copy of the rf

Reasons for Judgment herein of Bss Honours Me. Justice? fe former , Ovens + enuin eye

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