President of India v Moor Line Ltd

In this litigation the substance of which we have decided in the judgments just delivered there were proceedings which reached this Court of the costs of which it is necessary to dispose. The umpire stated a case for the opinion of the Supreme Court. Under the law of Victoria such an opinion is of an advisory nature: see In re C.T. Arbitration between Knight and Tabernacle Permanent Building Society [1] ; Cogstad & Co. v. H. Newsum, Sons & Co. Ltd. [2] . The case stated came before O'Bryan J. whose opinion was against the shipowners. The shipowners appealed to the Full Court of the Supreme Court of Victoria. As the opinion was advisory no such appeal lay in point of law. The point that no appeal lay was not, however, taken in the Full Court and the Full Court pronounced an order reversing the order of O'Bryan J. The order of O'Bryan J. had awarded the costs of the proceedings before him to the charterer. In fact he had no jurisdiction to award costs. It had been so decided in In re Arbitration between Groutch and State Rivers and Water Supply Commission [3] . But his attention was not drawn to this decision. The order of the Full Court reversed his order and awarded the costs of the proceedings both before O'Bryan J. and in the Full Court to the shipowners. On 12th October 1954 the charterer obtained from this Court special leave to appeal from the order of the Full Court of the Supreme Court. The appeal came on for hearing before this Court on 15th March 1955. The Court there pointed out that the proceedings had been misconceived. An order was thereupon made adjourning the appeal then before this Court and reserving the costs.

1. (1892) 2 Q.B. 613. 2. (1921) 2 A.C. 528. 3. (1913) V.L.R. 455.

We have considered how these proceedings should be disposed of. We think in all the circumstances that the right course for this Court to take is to allow the appeal from the Full Court of the Supreme Court, discharge the order of that court and in lieu thereof set aside so much of the order of O'Bryan J. as awards costs to the charterer. Over the rest of the order of O'Bryan J. we have no jurisdiction. The order for costs is, of course, a judicial order and we may therefore set it aside. We do so following Groutch's Case [1] . The rest of his order is advisory and is not appealable. It therefore must remain untouched although the opinion his Honour expressed is not in conformity with the judgments we have just pronounced.