R v Murray and Cormie [1916] HCA 58

High Court of Australia|1916-07-01|Before: Powers JJ, Rich J, Rich JJ, Barton J, By Isaacs J

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High Court - Appellate jurisdiction - Exception - Original jurisdiction - Prohibition H. C, or A.

Judge of Inferior Court of State exercising federal jurisdiction - Officer of 1916, Commonwealth - Commonwealth a party - Workmen's compensation - Determina- - tion by County Court - Order as to investment and application - Excess of juris- MELBOURNE, diction - The Constitution (63 & 64 Vict. c. 12), secs. 73, 75 - Judiciary Act Sept. 6, 7, 8; 1903-1915 (No. 6 of 1903 - No. 4 of 1915), sec. 39 (2) (c) - Commonwealth #- 16. Workmen's Compensation Act 1912 (No. 29 of 1912), secs. 3, 4; Sched. 1, clauses ae A

5, 9; Sched. 2, clause 2 - Workmen's Compensation Regulations 1913 (Statutory "Barton,

Rules 1913, No. 336), regs. 4, 5, 6, 7, 10 (Statutory Rules 1916, No. 124). Bee

'The provision in clause 2 of the Second Schedule to the Commonwealth Past and"

Workmen's Compensation Act 1912 that the decision of a County Court (which term includes a District Court) shall be final unless within a prescribed time either party appeals to the High Court or the Supreme Court of the State in which the County Court is situated, is an exception from the appellate juris- diction of the High Court within the meaning of sec. 73 of the Constitution ; and, therefore, no appeal having been brought within the prescribed time, the High Court has no jurisdiction to grant special leave to appeal from such a decision.

So held by Grigith C.J. and Barton, Isaacs, Higgins and Powers JJ. (Rich J. doubting).

'A Judge of an inferior Court of a State invested with, and purporting to exercise, federal jurisdiction is not an "officer of the Commonwealth " within the meaning and for the purposes of sec. 75 (v.) of the Constitution.

So held by Isaacs, Higgins, Gavan Duffy and Rich JJ. (Grifith C.J. and Barton J. dissenting).

H.C. or A. 'A workman in the service of the Commonwealth having died as the result 1916. of injuries received in the course of his employment and a claim having been wy made on behalf of his dependants for compensation, the Commonwealth

Tue King admitted liability under the Commonwealth Workmen's Compensation Act

Murray ann '1912 and instituted proceedings under reg. 10 of the Workmen's Compensation Corre. Regulations 1913 (Statutory Rules 1916, No. 124) in a District Court of New

South Wales for the determination of the total amount of compensation pee payable, the persons who were dependants, aiid the amount of ommpuaalia MONWEALTH, payable to each dependant. 'The District Court Judge made an order deter-

mining those matters; and, in addition, directed that the moneys payable to certain of the dependants should be paid to the Secretary to the Treasury and by him invested and applied from time to time in a stated manner, and that the terms of investment and application might be revised by further order of the District Court. On the application of the Commonwealth an order nisi was granted by a Justice of the High Court for a prohibition, in accordance with Order XLVII. of Part I. of the Rules of the High Court, directed to the District Court Judge and the dependants, on the ground of alleged excess of jurisdiction.

Held, by Isaacs, Higgins, Gavan Duffy and Rich JJ. (Grifith C.J. and Barton and Powers JJ. dissenting), that the High Court had no jurisdiction under see. 75 (1t.) of the Constitution to make absolute the order nisi for prohibition:

By Isaacs J., on the ground that although the Commonwealth was a " party" within the meaning of sec. 75 (u1.) it had no suitor's interest in the subject matter of the excess of jurisdiction ;

By Higgins, Gavan Duffy and Rich JJ., on the ground that the Common- wealth was not, within the meaning of sec. 75 (u.), a " party" to the pro- ceedings for prohibition.

Per Griffith C.J. The District Court Judge had no jurisdiction to make the directions above referred to.

Douglas Thompson Cormie, a workman in the service of the Commonwealth, having died as the result of injuries received in the course of his employment in Sydney, a claim was made on behalf of his widow and children for compensation against the Common- - wealth. The Commonwealth admitted liability under the Common- wealth Workmen's Compensation Act 1912, and a notice of motion was taken out in the District Court at Sydney on behalf of the Commonwealth for the determination of (1) the total amount of compensation payable by the Commonwealth, (2) the persons - who were dependants, and (3) the amount of compensation :

payable to each and every dependant. The District Court Judge found that the total amount payable for compensation was £500, of which the sum of £85 13s. 4d. had been paid to the widow. Of the balance, £414 6s. 8d., he found that £262 6s. 8d. was payable to the widow, and £30 was payable to one son, £70 to another son, and £52 to a daughter, of the deceased. He then directed that the sum of £414 6s. 8d. should be paid to the Secretary to the Treasury of the Commonwealth to be by him invested in such manner as he should, as trustee for the several dependants, think proper, and that out of the fund of £262 6s, 8d. there should be paid to the widow the weekly sum of £2 10s. towards the sustenance of the widow and her children living with her; that the fund of £30 should be invested until the son entitled to it should come of age, and should then be paid to him; that out of the fund of £70 there should be paid the weekly sum of 10s. ; and that out of the fund of £52 there should be paid to the daughter the weekly sum of 10s. He further directed that each beneficiary should have the right to forego at any time and to any extent the payment of any instalment, and that the pay- ments should otherwise continue until each several fund should be exhausted. He then ordered that, by future order of the Court, all or any of the terms on which, and the manner in which, the compensa- tion was directed to be invested and applied might be varied from time to time and at any time and in any respect, including directions as to the disposition of the funds in trust for their benefit.

On the application of the Commonwealth, Rich J. granted an order nisi for a prohibition directed to the District Court Judge and the widow and three children to prohibit them from further proceeding in respect of the order and directions so far as they ordered and directed the manner in which the several sums deter- mined to be payable should be dealt with, and so far as they pro- vided for the future variation of the directions.

The order nisi was first argued on 18th and 2lst August before Griffith C.J., Isaacs and Rich JJ., when the question whether the High Court had jurisdiction under sec. 75 of the Constitution to grant a prohibition in such a case was directed to be argued before a Full Bench.

The State of New South Wales obtained leave to intervene.

foe Kine v. MorRay AND CormIE. Ex PARTE Tue Com- MONWEALTH.

H.C.or A. Starke, for the Commonwealth. The difficult questions which

arise in connection with the prohibition can be avoided by this

ee) é Tun Kixq Court now granting special leave to appeal, and the Commonwealth

+s asks that that leave should now be granted. The provision

Murray AND Cormie. jn clause 2 of the Second Schedule to the Commonwealth Workmen's

Bx ranre Compensation Act 1912 making the decision of a County Court eer final unless appealed from within the prescribed time, applies only

to arbitrations, and not to a proceeding such as the present under reg. 10 of the Workmen's Compensation Regulations 1913 (Statutory Rules 1916, No. 124). This proceeding is a judicial one under sec. 4 (3) of the Commonwealth Workmen's Compensation Act. The power conferred by sec. 39 (2) (c) of the Judiciary Act to grant special leave to appeal is not taken away by clause 2. [Ric J. May not this Court under Order LIIL, r. 6, of the Rules of the High Court extend the time for appealing from the decision of the District Court ?] That rule is applicable under rule 1 of Sec. V. of Part II. [Isaacs J. But there is no jurisdiction to extend the time until

the appeal is instituted (Delph Singh v. Karbowsky (1) ).]

Mitchell K.C. (as amicus curie). Having regard to the provisions of clause 2 of the Second Schedule to the Commonwealth Workmen's Compensation Act, which is part of the Act, there is no power to grant special leave to appeal. The general provisions of sec. 39 (2) (c) do not override the provisions of the later special Act. See. 39 (2) (c) does not apply where an appeal is not permitted by the laws of the Commonwealth. The provision in clause 2 is an excep- tion from the appellate jurisdiction of the High Court within the meaning of sec. 73 of the Constitution. Even if there were power to grant special leave to appeal, in this case no special circumstances have been shown.

Starke, in reply. Clause 2 does not take away jurisdiction. It is not a jurisdictional fact, but is a condition introduced for the benefit of a party and may be waived (see Enders v. Rouse (2) ).

Grirriru C.J. The application must be refused. In my opinion it is not within the power of the Court to grant it. Jurisdiction to entertain appeals is given by the Constitution but is given " with such exceptions and subject to such regulations as the Parlizment prescribes." By the express terms of clause 2 of the Second Schedule to the Commonwealth Workmen's Compensation Act the provision that the decision of a County Court, which term includes a District Court of New South Wales, is to be final is made subject to the condition that, unless an appeal is brought within the time pre- scribed by regulation, the decision is to be final. That is a clear exception of such a case from the jurisdiction of this Court to enter- tain appeals from such decisions, and, the time prescribed having expired, we have no jurisdiction to grant leave to appeal.

On the point of discretion, I think that every reason which can be suggested for refusing to exercise it in favour of an applicant exists in this case.

Isaacs J. I think the leave should be refused because I think that the word "final" in clause 2 of the Schedule means without appeal except upon the conditions which follow. Whether those conditions can or cannot be waived in any particular case, I do not decide ; but at the present moment they have not been waived, and certainly unless and until they have been waived this Court cannot grant leave to appeal.

As to the question of discretion, personally I do not take the same view as that expressed by the learned Chief Justice, because, sup- posing discretion existed, I should desire not to raise any unnecessary conflict as to the power of this Court over State tribunals, and there- fore should be disposed to take the simpler course which has been suggested.

Hicers J. IL agree with what has been said by the Chief Justice and my brother Jsaacs,

Powers J. I agree with what has been said by the Chief Justice.

Ricu J. As at present advised, I do not feel the same certainty

Munny axp 2bout the matter as the majority of the Court do, but the expression

Starke. The High Court has jurisdiction under sec. 75 of the Constitution to issue prohibition to a Judge of a District Court invested with federal jurisdiction. In this proceeding the Common- wealth is a "party"? within the meaning of sec. 75 (m1). The Commonwealth is suing in the sense of proceeding. A proceeding to restrain a Court or a person from invading the rights of the Com- monwealth or from attempting to enforce rights against the Common- wealth is within sec. 75 (m1.). It is not necessary that the Common- wealth should be pecuniarily interested in order that it may be a "party" (In re Debs (1) ). The Commonwealth is entitled to protect federal rights as a matter of public propriety, and may do so under sec. 75 (1.).

[Hicers J. referred to Story's Commentaries on the Constitution of the United States, 5th ed., sec. 1686.

Grirriru C.J. referred to Story's Commentaries, 5th ed., sec. 1674; Quick and Garran on the Commonwealth Constitution, p. T72.]

A prohibition is in many aspects the same as a cause. The High Court may under Order XLVII., r. 27, direct the prosecutor to deliver a statement of claim ; when the proceedings are to be the same as in an action. The word " matters " in sec. 75 (11.) has the same meaning as in sec. 2 of the Judiciary Act, and so includes any pro- ceeding in a Court. With that meaning it includes prohibition. The word "sue" means seek or request, and in this present proceeding the Commonwealth is seeking or requesting a remedy (see In re Wallis' Trusts ; Ex parte Wallis (2) ). The words "suing or being sued " should not be read as indicating that there must be an opposing party.

8 U.S., 564, at pp. 583, 586. (3) Fortes., 345. LR, Ir., 7. ree (4) 2 Saund., 94.

The District Court Judge in this case is an officer of the Common- 1. ©. or 4. wealth within the meaning of sec. 75 (v.) of the Constitution, and me prohibition will therefore lie to him. The District Court being Tae Krxe invested with federal jurisdiction, the Judge purporting to exercise penne AND that jurisdiction is, pro hac vice, an officer of the Commonwealth Conse.

(R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Ex rarre Brisbane Tramways Co. and Adelaide Municipal Tramways Trust Bcteahit [No.1] (1) ). In sec, 75 (v.) the words " officer of the Common- = - - wealth" have a wider meaning than in sec. 51 (xxxrx.). They include any persons who are State officers and who are performing functions by direction of the Parliament of the Commonwealth. Sec. 75 should, if capable of different constructions, be so construed as to give the High Court effective control over all Courts exercis- ing federal jurisdiction. Mitchell K.C. (with him J. A. Browne), for the State of New South Wales. Chapter III. of the Constitution does not give the High Court jurisdiction to issue prohibition to a State Court invested » with fedeyal jurisdiction. The foundation of prohibition. is that the royal prerogative has been infringed (Shortt on Informations, p. 444). If the royal prerogative has been infringed in this case it is the prerogative of the Sovereign in right of the State. There is no case in which prohibition has gone from the Court of what would in that sense be one sovereign power to a Court of another sovereign power. That distinction is recognized in Sydney Municipal Council v. The Commonwealth (2). The District Court Judge is not appointed by the law of the Commonwealth to execute the judicial power of the Commonwealth, but the District Court is by the law of the Commonwealth invested with certain federal jurisdiction, and it is the law of the State which appoints the District Court Judge to execute the jurisdiction of his Court including the jurisdiction conferred upon it by the Commonwealth Parliament. [Isaacs J. referred to United States v. Hartwell (3).] Assuming that sec. 75 (u1.) of the Constitution would give this Court jurisdiction in certain cases to issue prohibition, it does. not

(1) 18 C.L.R., 54, at p. 68. (2) 1 O.L.R., 208, at p. 231. (3) 6 Wall., 385.

H.C. or A. give that jurisdiction in the case of a State Court exercising federal -

jurisdiction. The primary object of sec. 75 (11) is to give the

tas Kiso High Court original jurisdiction in all matters in which the Common-

Murrey anp Wealth is concerned. If it would authorize prohibition to an inferior

Cormre. (Court of a State, it would authorize prohibition to the Supreme

Ex parte Court of a State. The two cases cannot be distinguished. The

seed Parliament of the Commonwealth has no power to authorize some other federal body to invest a State Court with federal jurisdiction.

The particular federal jurisdiction said to have been exercised here

was not given by the Commonwealth Workmen's Compensation Act, -

but by regulations made by the Governor-General under the authority

Starke, in reply, referred to 7 Comyns' Digest, 5th ed., pp. 139, 141, sub " Prohibition," (c), (e); Lloyd on Prohibition, p. 55.

Grirrira ©.J. This is an order nisi for prohibition, granted in. accordance with the practice prescribed by Order XLVII., and directed to a Judge ofa District Court of New South Wales invested with federal jurisdiction, the ground of the application being a suggested usurpation or excess of jurisdiction by the District Court in a matter instituted in that Court to which the Commonwealth €0 nomine was a party.

A preliminary point was raised, to the effect that the High Court has not original jurisdiction to entertain such an application. As the point is one of great and general importance it was directed that it.should be argued before a Full Bench.

Sec. 75 of the Constitution provides (pl. 111.) that the High Court shall have original jurisdiction in all matters in which the Common- wealth, or a person suing or being sued on behalf of the Common- wealth, is a party. The words " or a person suing &c." are paren- thetical, and do not grammatically affect the words "in which the Commonwealth is a party." See Duke of Devonshire v. O'Connor (1).

I will venture to state some propositions which seem to me H. ©. or A. elementary, premising that the Australian Constitution, like other bathe great instruments of government, deals with substantive rights and Tue Krxe not with technicalities of procedure. For instance, it speaks of \joraey anp "proposed laws," not of "bills," and says nothing about first, COP™™ second, and third readings. Ex PARTE

(1) The term " matter" includes any case whatever in which the exercise of the judicial power of the Commonwealth is invoked :

(2) A proceeding in which the exercise of that power is invoked to restrain usurpation or excess of jurisdiction by an inferior Court is therefore a "' matter " :

(3) The person by whom or against whom that exercise is invoked is a party in the " matter " :

(4) If the Commonwealth is aggrieved by such an usurpation or

excess by an inferior Court, it may as a party invoke the exercise

of the judicial power to restrain it :

(5) The name in which a sovereign State may invoke the exercise of judicial power in any Court, or under which that exercise may be . invoked against it, is a matter of procedure, largely, though not altogether, governed by positive law. In the United Kingdom, for instance, the King invokes the exercise in the name of his Attorney- General. The exercise is invoked against him (in permitted cases) in his'own name. In the United States of America the designation "United States" is used in both cases. In the Australian States the practice is various. The right of the Commonwealth to invoke the judicial power in its own name is expressly recognized by the provision in debate.

The question, then, is whether the present case is such a " matter." The question appears to answer itself.

There are few things more embarrassing than to be called upon to prove the truth of an elementary proposition or the meaning of a word in common use. But I suppose it is accurate to say that when a word has always been used in a particular context to designate a particular concept, then when used in that context it means that concept. This is a mere truism.

Ever since the time of Edward I. the word " prohibition " has

H.C. or A. heen used in English jurisprudence to denote a judicial proceeding as in which one party seeks to restrain another from usurping Tue Kine exceeding jurisdiction. It is now, for the first time, I think, in Murray ann legal history, suggested that it does not mean any such thing, i Comms. have done my best to appreciate the grounds upon which this sug- Ex rarre gestion is based. So far as I can understand them they are two:

not fold: first, that the person at whose suit a writ of prohibition is granted will not be a party to the writ when granted, and, second,

that under the Rules of Court the preliminary proceedings are ti

be entitled Rex v. A.B. Ex parte C.D. To the first argument I

reply that the question for decision is not whether the person who

asks for the grant of the writ will be a party to the writ after grant,

but whether he is a party to the application for it. The history of

the writ makes it quite clear that an application for a prohibition - has always been regarded as a proceeding inter partes, the parties - being often described as plaintiff and defendant in prohibition. - In the reports the preliminary application was sometimes reported under the heading of the name of the case in which jurisdiction was ° alleged to have been usurped or exceeded (e.g., Remington v. Dolby - (1)), sometimes under the words "In the matter of " the person against whom the writ was sought (e.g., In the Matter of the Deanof - York (2) ), and sometimes, as under our rules, under the heading R. v. A.B. (e.g., R. v. Bishop of Ely (3) ). The King is, in truth, no more a party to the application than he is to any other suit in - which the judgment is executed by a writ in his name. For pro- _

hibition is a writ issued after judgment given in an independent litigious proceeding, and not a writ originating a proceeding. As - to the second ground, it is manifest that the circumstance that by - the practice of the Court a particular title or the absence of any title is prescribed cannot affect the nature of the proceeding itself.

At one period certain fictions, analogous to the fiction of the lessor of the plaintiff in an action of ejectment, were introduced in the practice of the Court of King's Bench regarding prohibition. These - fictions were not applied to-applications for prohibition in the Courts - of Common Pleas and Exchequer, and they were long since abolished - by a Statute of William IV. None of them affected the substantial

character of an application for prohibition as I have already described it.

It is also suggested that the Constitution could not have intended to allow a direct order to be made by the High Court against a State Court. A complete answer to this suggestion is to be found in the language of Isaacs J. in the case of R. v. Registrar of Titles (Vict.) (1), to which I will only add that, when a person usurpsa jurisdiction which, if he had it at all, he would have by virtue of a federal law, a restraint imposed upon such usurpation is not in any conceivable sense an interference with a State instrumentality.

The argument @ priori as to constitutional powers is always dangerous, and, in my opinion, inadmissible. But, if it is treated as admissible, it cannot be better answered than in the words of Story J. (Commentaries, sec. 1674) : - " It scarcely seems possible to raise a reasonable doubt as to the propriety of giving to the national Courts jurisdiction of cases in which the United States are a party. It would be a perfect novelty in the history of national jurisprudence, as well as of public law, that a sovereign had no authority to sue in his own Courts. Unless this power were given to the United States, the enforcement of all their rights, powers, contracts and privileges in their sovereign capacity would be at the mercy of the States. They must be enforced, if at all, in the State tribunals. And there would not only not be any compulsory power over those Courts to perform such functions, but there would not be any means of pro- ducing uniformity in their decisions. A sovereign without the means of enforcing civil rights, or compelling the performance, either civilly or criminally, of public duties on the part of the citizens, would be a most extraordinary anomaly. It would prostrate the Union at the feet of the States. It would compel the national government to become a suppliant for justice before the judicature of those who were by other parts of the Constitution placed in subordination to it."

It is further contended for the Commonwealth that the case is within pl. v. of sec. 75 of the Constitution, which confers on the High Court original jurisdiction in all matters in which a writ of

H.C. or A' mandamus or prohibition is sought against an officer of the Common.

'Tux Kine tions made by the Commonwealth for relief against refusal or pene anp USUrpation of jurisdiction, but extends to give redress to all private

Monwearru, that a Judge of an inferior Court of a State exercising federal juris

wealth. The operation of that provision is not limited to appli

citizens prejudiced by such refusal or usurpation. I agree with opinion expressed by Barton J. in the Tramways Case [No. 1] (1)

diction is pro hac vice to be regarded as a judicial officer of the - Commonwealth. F

If this is not so, the Commonwealth has not, and cannot acquire, any remedy in its own Courts against the refusal or usurpation of jurisdiction by an inferior Court of a State to its prejudice. Under sec. 77 of the Constitution the Parliament has authority to make the jurisdiction of the High Court exclusive in any case falling within sec. 75. I can hardly conceive of any matter more fitting to be brought under this provision than the control of inferior State _

Courts invested with and assuming to exercise federal jurisdiction. A contrary view would let in all the evils adverted to by Story J. On both grounds I am of opinion that this Court has jurisdiction to entertain the present application. The preliminary objection should, therefore, be overruled. ; I will deal with the merits separately.

Barron J. As to sec. 75 of the Constitution, sub-sec. m., I think that all the propositions laid down by the learned Chief Justice are amply sustained, and that therefore the objection taken on behalf of the State of New South Wales must fail. See the reasoning of Brewer J., delivering the opinion of the Supreme Court of the United States in the case of In re Debs (2) upon words in the Constitution of the United States similar to those of sec. 75 - (ut.). See also the case of R. v. Registrar of Titles (Vict.); Ex parte the Commonwealth (3), in which the Chief Justice and my x 7 learned brother Isaacs used words strongly sustaining the present contention of the Commonwealth. My learned brothers Higgins, Gavan Duffy and Rich rested their judgments on the construction

(1) 18 C.LR., 54, at p. 68. (2) 158 U.S., 564, at pp. 584 et seg. (3) 20 C.L.R., 379, at pp. 387, 388.

of certain Statutes, and seem to have assumed, no doubt only for H- ©. or A. the purpose of argument, that the Commonwealth was a party to ae that proceeding. It was a "matter" within the meaning of sec. Tae Kix 75; an application by the Commonwealth for a mandamus to be yureey axp directed to the Registrar of Titles of Victoria. My learned brother CORMTE- Powers also decided on grounds of statutory construction, and Ex parte did not think it necessary to consider the constitutional question. Pil My learned brother Isaacs concluded his cogent reasoning on this question in these words: "If this power did not exist, then the Commonwealth, for the protection and assertion of its rights, would be driven to enter the State Courts." That is a result which can scarcely be attributed to the framers of the Constitution as their intention, for it would mean that in respect of a portion of those rights which is not only considerable in extent, but of the highest importance and value, the Commonyealth would find the doors of "its own Courts barred against it. Now, I do not think there is any ambiguity in the provision debated ; but, if there were, the result pointed out by my learned brother would be of great assistance in solving the ambiguity. It is in that regard that the passage quoted by the learned Chief Justice from Story's Commentaries, sec. 1674, is as important as it is interesting ; for as between the construction

that a supreme executive power, owning also great proprietary interests, has, and the construction that it has not, the right to assert its interests in its own Courts, it would be absurd to contend that the former is not the more reasonable, in fact the only reason- able, interpretation. To repeat a few words of the learned com- mentator, such a conclusion " would compel the national govern- ment to become a suppliant for justice before the judicature of those who were by other parts of the Constitution placed in subordin- ation to it."

As to sub-sec..v. of the same section of the Constitution, a passage has been cited from my judgment in the Tramways Case [No. 1] (1). As in my view the position of the Commonwealth in this case is supported by the third sub-section, it is not necessary to refer in detail to the opinion I then expressed. But I ought to

say that I shall not qualify it unless convinced by some futur argument that it is erroneous. I think, therefore, that the preliminary point must be overrul

Isaacs J. The Commonwealth applies for a common law of prohibition against Judge Murray and certain private persons. The prohibition sought is to restrain them from further proce with a certain order made by the learned Judge as Judge of a Dis trict Court of New South Wales, which for the purpose of the federal Act (No. 29 of 1912) under which the order was madeis called a "County Court." It is essential for the determination of this ; case to examine carefully the nature of the order complained of as having been made without jurisdiction.

An employee of the Commonwealth suffered injuries in the service from which he died, and his dependants applied for compensation under the Act. An order was made which determined: (1) the liability of the Commonwealth to pay compensation ; (2) the total amount of compensation payable by the Commonwealth; (3) who were dependants; (4) the amount payable to each dependant; - (5) that the moneys be paid to the Secretary of the Commonwealth Treasury. So far no objection is raised to the validity of the order. -

The Commonwealth is so far bound to pay over the amount awarded to the prescribed authority and is thereupon discharged, just as any private employer would be in a like situation. Then the order proceeded to declare: (6) that the moneys to which certain of the dependants are entitled should, when paid to the Secretary of - the Treasury, be by him invested and applied in a stated manner. That is challenged as being made without jurisdiction, and I agree - it is. But if the matter stood there, prohibition would not be an a appropriate remedy, because prohibition does not correct or reverse

or alter what has been done; but it is for the sole purpose of

preventing something being done by a Court in the future; and so - far the order prescribes nothing to be done, and nothing could be - done by a Court in the future (Denton v. Marshall (1)). Appeal is one remedy for such a case; mandamus to the officer to pay 4 the money according to law is another. The officer is not a party -

here. But the order goes on further to declare : (7) that the ordered 4. ©. or A. terms of investment and application might be revised by further men order of the Court on application. That does relate to the Tux Kime future action of the Court, and is matter for prohibition in a com- yturpsy ax

petent proceeding, and, as I read the order, this portion, which is a equally unwarranted with the sixth subject ordered, is so bound up Ex parte with it as to make both 6 and 7 together one unified direction ee and subject, apart from other objections, to the ordinary law of prohibition.

But one thing is clear, and is, in my view, of supreme and decisive importance in this case. The only portion of the order which concerns the Commonwealth as an employer, and therefore as a suitor in the District Court, is perfectly right. Its liability, the total amount of its liability, its separate liability to each dependant, and the hand into which its money is to be paid, are all matters which are lawfully stated. And there the Commonwealth's interest under the Act entirely ceases. Whatever becomes of the money after it reaches the hands of the prescribed authority does not concern the Commonwealth, except perhaps in a totally different capacity, namely, its governmental capacity. The prescribed authority, who happens to be the Secretary to the Treasury, has a personal duty prescribed by the law itself not performable by other persons and not to be performed under the direction of the Common- wealth Government. His obligation to deal with the money is towards the dependants (Fulton v. Norton (1) ), and not towards the Commonwealth, and it is they, and they alone, who would enforce the officer's obligation, because they alone (see Ivey v. Ivey (2) ) are interested in its proper application. (Halsbury's Laws of England, vol, xx., par. 463.) This position is clear from a consideration of the fact that, where death does not ensue, the money is payable to the injured person direct, except weekly payments where disability exists (clause 6 of the First Schedule), and in case of death is payable either to the prescribed authority (under clause 5) or, where agreed, to certain private persons direct (ébid.). The prescribed authority is in this respect in the position of a trustee appointed by law and

H. C. or A. holding moneys to which private persons are entitled as cestuis q ee trustent. gon kim Now the question is whether under sec. 75 of the Constitut Monney axn the Commonwealth can in these,circumstances obtain a common Cormte. Jaw writ of prohibition against a State Judge exercising the fed Ex rarre jurisdiction of a State Court under the Act referred to. The res OOM tinction between a public officer acting as the agent of the State and as a person having independent duties imposed by law is clear. - The answer to the question stated depends upon the application of two sub-clauses, the third and the fifth of sec. 75 of the Constitution.

No other ground was suggested, and therefore no other calls for any ;

Sub-sec. v. of sec. 75 relates to "'an officer of the Commonwealth." It has been urged that the Judge of a State Court when exercising federal jurisdiction is "'an officer of the Commonwealth " pro hac vice. I cannot agree with that contention.

The Constitution, by Chapter III., draws the clearest distine- tion between federal Courts and State Courts, and while enabling - the Commonwealth Parliament to utilize the judicial services of - State Courts recognizes in the most pronounced and unequivocal way that they remain "State Courts." No reference is made - to State Judges. Federal jurisdiction may be entrusted to State Courts, and, if so, the Judges of those Courts exercise the jurisdiction not because they are "officers of the Common- wealth ' - which they are not - but because they are State officers, namely, Judges of the States. An " officer" connotes an " office " of some conceivable tenure, and connotes an appointment, and usually a salary. How can it be said that a State Judge holds a Commonwealth office? When was he appointed to it? He holds his position entirely under the State; he is paid by the State, and - is removable by the State, and the Constitution knows nothing of him personally, but recognizes only the institution whose jurisdiction, however conferred, he exercises. If, for instance, a State Court - exercises the powers conferred by the Imperial Merchant Shipping Act 1894 under sec. 711, it cannot be said the Judges who do so are "officers of the United Kingdom." If any State Judges are " officers of the Commonwealth," then all are, including the Supreme

Court Judges, for the Constitution does not differentiate between 4. C. oF A. the officer except so far as the inherent nature of prohibition or na mandamus requires that the officer must be someone not a member Tar Krxo of the tribunal to which the application is made, or superior to it. yoaney axp The expression " officer of the Commonwealth " has not a fictional Com™tE- meaning. It has a real meaning that the person referred to is Ex rarra individually appointed by the Commonwealth; and therefore the Set Constitution takes his Commonwealth official position as in itself a sufficient element to attract the original jurisdiction of the Common- wealth High Court, supposing, of course, the " matter" is of the requisite nature. The phrase "officer of the Commonwealth " is found in sub-sec. xxxrx. of sec. 51 in the same sense. See also the term " officers "' in secs. 64, 67 and 84, which strengthen the view I have indicated.

So far as sub-sec. v. of sec. 75 is concerned I am of opinion that this Court has no original jurisdiction in the present case.

Then it was urged that the case fell within sub-sec. m1. This is a more difficult question. To some extent I have already expressed my views on the sub-section in the case of R. v. Registrar of Titles (Vict.) (1). Ladhere to what I said in that case on the subject ; but the question now to be determined did not arise, and therefore could not be decided, in the case referred to. The right there urged as the foundation of the application for mandamus was carefully described both by the learned Chief Justice and myself. The Chief Justice said (2) : - '* The Registrar of Titles is called upon by a competent party to do an act which he is required to do by the law of Victoria. An enforcement of the laws of a State at the suit

of a private suitor cannot in any intelligible sense be called an interference with the executive functions of the State." " Private suitor " in that case meant clearly a suitor in right not of sovereignty but of proprietorship. For myself, I first ascertained the proprietary interest of the Commonwealth as suitor, as distinguished from its sovereign character. 1 emphasized the " personal " right, and said (3) : - * The claim by the Commonweakh is not made in any govern- mental capacity, but in its proprietary capacity, just as any private

20 C.L.R., 379, at p. 388. ' (2) 20 C.L.R., at p. 387. he P"(3) 20 CLR., at p. 390. ee

'Tur Kiyo tight, the claim made in respect of it is a " matter" within the meani

Murray ann of sec. 75. I adhere to the words I used in the case referred

individual would claim in a similar case. The distinction be the two is clear and broad." If there be alleged an antecedent

"that the word ' matters ' includes and is confined to claims restit upon an alleged violation of some positive law to which the pa like subject, and which therefore governs their relations, and constitutes the measure of their respective rights and duties " (1).

wealth commenced a proceeding in its own name were sufficient constitute a "matter," then it could intervene in every case other Courts exercising federal or State jurisdiction throug] Australia, where private persons alone were interested, and if j diction were exceeded could invoke the original jurisdiction of th Court to restrain it. That is an impossible position.

Testing this case by the standard I have set, I ask: " How the District Court Judge, by ordering the person designated by la as the dependants' trustees to invest and distribute the moneys a particular way, affected any legal right of the Commonwealth, civil or criminal?" It is undoubted law that, though a litigant is interested in a suit, he is only entitled qué party to get that part it prohibited in which he is interested. In all other respects he a stranger (yer Cockburn C.J. in Forster's Case (2) ). The inte which every sovereign has in the lawful discharge of public duti by persons individually entrusted with them is not an interest whic can be made the subject of litigation. If it were, then where a officer refused to perform some duty demanded of him the Common- wealth could get a mandamus, and this Court would have to try the question of executive duty. .

But if such a violation could be shown here as existed in R. v Registrar of Titles (Vict.) (3), if, for instance, the Commonwealth wer defending or enforcing any proprietary right, or any recognize legal right whatever - not political, - that is, where, as Hale C. said in Pawlett v. Attorney-General (4), "the King is in here,

(1) 20 C.L.R., at p. 388. (3) 20 C.L.R., 379. (2) 4B. & S., 187, at pp. 198, 199. (4) Hardres, 465, at p. 467.

not by his prerogative," it might sue in this Court in original juris- H- C. oF 4- diction to establish and enforce the right. On the one ground that ee I have stated, namely, that on the face of the proceedings it clearly Tus Kixc appears there is no such right - which fundamentally distinguishes ytoneey axp this from the Registrar's case, - I am of opinion that the case turns COP™7® out now not to be a "matter" within the meaning of sec. 75, Ex parte and the application should be dismissed. It resembles the Indian oe CO, case decided by the Privy Council to which I made reference in State of South Australia v. State of Victoria (1), in this respect, that the applicant indicates no legal right resident in itself which any Court can adjudicate upon. Whatever interest it has in the officer performing his duty is a political interest.

In the view I have taken, it is not in strictness necessary to con-

sider another essential condition of jurisdiction, namely, whether _ the Commonwealth is a "party." But not only is it desirable to express an opinion upon this point, which has been most fully argued,

for the sake of its own importance as affecting a salient part of the Constitution, and which has led to a difference of opinion in this Court, but its consideration helps greatly to elucidate and enforce the first point with which I have already dealt.

I agree that the sub-section contemplates " the Commonwealth suing " or "being sued" either in its own " person," so to speak, or by some natural person - not the King or his representative, the Attorney-General - on its behalf. The Commonwealth or that natural person must be a " party" on the face of the proceedings, familiarly called the "record." But, as I-said in R. v. Kidman (2), [do not think that when the Commonwealth is Sued in its own "person" the precise name of "The Commonwealth" must of necessity be used. 'The Commonwealth " in point of law is short for "the King in right of his Commonwealth," and a suit by or against "The King in right of the Commonwealth of Australia," or simply "The King," where the title could mean only in relation to the Commonwealth, would, in my opinion, be a sufficient precedural compliance with the requirements of sub-sec. 111. of sec. 75.

It has been to some extent assumed that the very name of " The Commonwealth " must be used; and this assumption was to some

(1) 12 C.L.R., 667, at p. 721. (2) 20 C.L.R., 425, at p. 446.

H.C. or A. extent at least, rested on the analogy of the American Constitution, 1916. and decisions under it. But those decisions do not support YL :

Tar Kixc What wassaid in Osborn v. Bank of United States (1) by Marsi

Murrey anp ©.J. must be read with the case of Governor of Georgia v. Madrazo

Corse. and with Ayers' Case (3); and these cases, read together, draw t

Ex parte distinction on which I personally rest this case, namely, the p aan sonal duty of an officer under the law as contrasted with his duty as representing the State, which in that event is supposed to

Examining the present position apart from those cases, it is plain

that the name of '"' The King " does not in itself conclusively sat

the requirement of sub-sec. m1. as to the Commonwealth being a

party. "The King" would be the heading even if the applica

were a private person, and even if that private person were seek to prohibit the Commonwealth as respondent. That shows tha' "The King" in this connection means the King in his chara of supreme guardian of the administration of royal justice, and as a suitor interested in the subject matter. Therefore the questi comes to this: "Is an application by any private person for a of prohibition a suit to which he isa party?" I use the te "suit" in the larger sense as any proper proceeding in the Court for redress in respect of an alleged breach of law. Whatever forn the law prescribes must, of course, be followed, but conformi to that the proceeding is a "suit." The point is not without hi authority. It arose directly in America 'as a point of common law, - and was decided by Marshall C.J. in clear terms. 'Any decision such a point by that consummate jurist is welcome.

In Weston v. Charleston Corporation (4) the Court "entettainil an appeal where its jurisdiction depended on whether a* writ - of prohibition was a suit. The learned Chief Justice said (5) : - "Ts a writ of prohibition a suit? The term is certainly a ve y comprehensive one, and is understood to apply to any proceed- ing in a Court of justice, by which an individual pursues that remedy in a Court of justice, which the law affords him. The -

(1) 9 Wheat., 738. (4) 2 Pet., 449. (2) 1 Pet., 110. (5) 2 Pet., at pp. 464, 465. (3) 123 U.S., 443, at pp. 487 et seag.

modes of proceeding may be various, but if a right is litigated between parties in a Court of justice, the proceeding by which the decision of the Court is sought, is a suit. The question between the parties is precisely the same as it would have been in a writ of re- plevin, or in an action of trespass. The constitutionality of the ordinance is contested; the party aggrieved by it applies to a Court ; and at his suggestion, a writ of prohibition, the appropriate remedy, is issued. The opposite party appeals ; and, in the highest Court, the judgment is reversed and judgment given for the defen- dant. This judgment was, we think, rendered in a suit." Every element is mentioned : "' party," " party aggrieved," " suit," "right," " suggestion," " writ of prohibition." That case has been followed in 1915 in Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama Inter- state Power Co. (1).

'The question is : Does this correctly state the common law? After

a careful search for and examination of the authorities, I believe it does. The circumstances require me to state my reasons.

Acommon law writ of prohibition must always be sued out in the name of the Crown, or in America in the name of the State (see per Gray C.J. in Connecticut River Railroad Co. v. County Commissioners (2) ). Consequently, if using the name " The King " as in the present instance, which necessarily means the King in right of the Common- wealth, precludes the Commonwealth as a party, then under sub-sec.

no common law prohibition is in any case possible in the original jurisdiction of this Court, notwithstanding the carefully phrased extensiveness of the language of the sub-section, because no per- son suing on its behalf could be made more completely a party than the Commonwealth itself is here.

Thé English authorities bearing on the subject are bewildering in their number and diversity ; they begin at a very early date in our law, and have developed in a manner that makes them difficult, and sometimes impossible, to reconcile. Notwithstanding the very decided opinion of Lord Esher (when Brett J.)sin Worthington v. Jeffries (3), which certainly occasioned hesitation, I conclude that at all events in 1900, when the Constitution was passed, and

(1) 240 U.S., 30. (2) 127 Mass., 50, at p. 59. (3) L.R. 10 C.P., 379, at p. 382.

w Tae Kixe v. Murray AND CormIE. Ex PARTE Tue Com- MONWEALTH.

in my opinion very much earlier, the law regarded prohibition no only as a means of safe-guarding the royal prerogative at the suit

applying for relief to himself is in my opinion a " party." If refu ' he could appeal, and he would certainly be a "party" to the appeal. Cockburn C.J. in Martin v. Mackonochie (1) expressh speaks of the " parties" to the application for a prohibition in sense which includes the applicant. f Ido not base my opinion upon the circumstance that in prohibitio cases there may be pleadings and that the party applying might be compelled to declare. The meaning of that procedure is very clearly stated in the notes to Croucher v. Collins (2). "The action for prohibition," according to those notes and the authorities cited, ¥ founded on a fiction or series of fictions. So also Hall v. Maule (3). In imagination, and in imagination only, an original writ of prohibition was issued out of the Chancery, was duly served, w possibly followed by an alias and a pluries, and these were all d obeyed, and there was therefore an imaginary contempt by re: of which the applicant was compelled to proceed before the inferio Court and thereby suffered damage, and thereupon also the Courts of common law entertained an action for prohibition consisting of pleadings. Willes J. confirms this view in London Corporation ra Cox (4). The origin of the attachment is explained in the Anonymous Case (5). The original writ of prohibition was not returnable (Coke, aq Inst., 81). The new action was supposed to be commenced by an independent but, in the circumstances, quite imaginary proceeding called a writ of attachment, which was in theory returnable, and on this the pleadings proceeded. See also Blackstone, vol. m1, p. 112. The old practice of pleadings therefore does not touch the real point at issue here, which is whether the initial application for the - prohibition is a suit to which the applicant is a party. The old

(1) 3 Q.B.D., 730, at p. 783. (4) LR. 2 HLL, 239, at pp. 27, 288. (2) 1Saund., 136. (5) 3 Salk., 289. x (3) 4A. & E, 283, at p. 285,

practice lasted till 1831, when by the Act 1 Will. IV. c. 21 the fictions were abolished, suggestions were rendered unnecessary in all the Courts, and the action made one on behalf of the subject only and not of the King. This Act was adopted in Australia, as, for instance, in Victoria by Act No. 274 (Common Law Procedure Statute 1865), sec. 245.

The initial process was originally in a form which throws much light on the subject and helps to elucidate much of what is at first sight confusing. As early as 1548 the law, by the Act of 2 & 3 Edw. VI. c. 13, sec. 14, spoke of the matter thus: "If any party

sue for any prohibition in any of the King's Courts where prohibitions before this time have been used to be granted, that then in every such case the same party, before any prohibition shall be granted to him or them, shall bring and deliver to the hands of some of the Justices or Judges of the same Court where such party deman- deth the prohibition, the very true copy of the libel depending in the Ecclesiastical Court, concerning the matter wherefore the party demandeth the prohibition; and under the copy of the said libel shall be written the suggestion wherefore the party so demandeth the said prohibition." Then the section provides that, unless the suggestion be proved true within six months, the party prohibited may on his "request and suit' have a consultation, and recover double costs and damages against "the party that so pursued the said prohibition." This Act was applied as late as 1823 by Lord Eldon LC. in In re Magor (1).

Though a prohibition might be granted not only by the King's Bench but also by other superior Courts, there was a certain differ- ence that marks the point we are considering very distinctly, and which, as it occurs to me, solves the whole difficulty. The King's Bench was par excellence the King's Court, it was in theory coram ipso rege, and was the supreme Court of common law in the Kingdom (Blackstone, vol. 111., p. 41), and part of its functions was to keep all inferior jurisdictions within the bounds of their authority. It also protected the liberty of the subject by speedy and summary inter- position (ibid., p. 42). But it had two sides, the Crown side and the civil side, its complete civil jurisdiction being accomplished only

H.C. or A. by means of fiction. It was on the Crown side that prohibition - Beles issued to restrain inferior jurisdictions. And, according to Black- Tur Kine stone (ibid., p. 112), properly speaking the prerogative writ issued Murray axp nly out of the King's Bench, " but," adds the learned author, "for. Cormre. the furtherance of justice, it may now also be had in some cases out Ex parre the Court of Chancery, Common Pleas or Exchequer." That was ed See as late as 1768. The Court of Common Pleas therefore also 'este prohibition. Then comes the distinction to which I refer, and which I think determines the matter. The Court of Common Pleas was essentially the subjects' Court, and Magna Charta expressly _ fixed that Court at Westminister so that suitors might not be - harassed with following the King's person. Eyre C.J., in Jefferson v. Bishop of Durham (1), said it was " emphatically a Court of pleas

between party and party ; though the Crown may elect to proceed here for the maintenance of its civil rights." "All the King's Courts have an equal right to grant prohibitions," said Lord Mans- field in R. v. Bishop of Bly (2). In both the Court of King's Bench and the Court of Common - Pleas the application for a prohibition was founded in the first - place on a suggestion of usurpation or encroachment of judicial authority. But in an early case in the reign of Charles I. it was pointed out that the position was not the same in both Courts in respect of the mode in which an application for prohibition became a - suit of the party applying. In Dizye v. Brown (3), called also Watkin's Case (4), it was held by the King's Bench that a prohibition may be there granted on a " bare surmise" without any suggestion of record, and is then only in the nature of a " commission prohi- : bitory " which is discontinued by demise of the King, unless it has, : in the meantime, been followed by other process. The Court said - "but if attachment issues and returns, or if the party appears and puts in bail, then it becomes the suit of the party and there is no discontinuance by demise of the King." But in the Common Bench, - said the Court, a prohibition cannot be awarded until the suggestion _ be of record, adding : " And for that the prohibition is the suit ofthe - party and shall not be discontinued by demise of the King." :

(1) 1B. & P., 105, at p. 128. (3) Noy, 7; Pal., 422. (2) 1 W. BL, 71, at p. 81. (4) Lat., 114.

The authorities frequently speak of a party " suing a prohibition " or " suing out a writ of prohibition": See Lyss v. Watts (1). Sellon's Practice (vol. 1., p. 312), on the authority of this case, describes the proceeding in the Common Bench as "the suit of the party." I am indebted to my learned brothers Duffy and Rich for a reference to Sellon's work. In Comyns' Digest, " Prohibition " (£), it is stated that "a prohibition may be sued by him in the reversion, if a libel be for tythes against his lessee." See Bacon's Abridgement, " Prohibition," p. 568, where it is stated that no man is entitled to prohibition unless he is in danger; and, p. 569, where the author uses the expression "sue a prohibition." In contradistinction to the party, the same work points out (p. 568), as to a stranger, that anyone may pray a prohibition for the King. In Anonymous (2) the Lord Keeper recognized that a prohibition might go "at the suit of a party " or "for the King," and that though it might be refused in certain cases to the party it would go for thé King. As to pro- cedure in Chancery, Lord Hardwicke as early as 1749 (Worcester Cor- poration v. Bennet (3)) laid it down that all motions for prohibition were to be grounded on affidavit, not suggestion. The same rule was affirmed in 1775 by Lord Mansfield in Caton v. Burton (4). The Act 1 Will. IV. c. 2] already referred to made it necessary in any case to file @ suggestion on any application for a writ of prohibition, and pro- vided that the application might be made on affidavits only. Since then, as Willes J. points out in Coz's Case (5), there must always be an affidavit - that is, as the mode by which the applicant must proceed. x

At this time, 1831, at all events, it seems to me to be quite clearly recognized in all Courts, that a party improperly harassed by usurpa- tion of judicial authority is entitled to demand a prohibition if he informs the Court so as to make its conscience clear that usurpation has been attempted. The superior Courts which came at last to be co-ordinate Courts, and though in some degree retaining separate ancient characteristics, became tribunals where the subjects of the King might equally obtain relief from any unwarranted assumption of judicial authority. And for this, while the declared foundation

for interposition by way of prohibition was the guardianship of the royal prerogative of justice, the occasion might be either the King's application on the information of a stranger, or the request for relief of the harassed subject. For instance, in Chabot v. Viscount Morpeth (1) Lord Campbell C.J. said that the Court ordered the plaintiff to declare in prohibition on a strong representation by his counsel " that he had sustained a grievous wrong " and that he had no other remedy. The subject had in such a case a right to the Court's interposition. : 3

In In re Knowles v. Holden (2) the Court of Exchequer granted a prohibition and Pollock C.B. said (3): "A party has a right to the interposition of the Court, where an inferior Court exceeds its jurisdiction." True, the summary remedy would not go unless the conscience of the Court was clear as to the usurpation, and the party - asking for it must make out a clear case (In re Birch (4)). The right of the party is not absolute ; that is, though the writ is of right when the Court's conscience is clear, he cannot claim the writ as of course, in the same way as he might obtain an ordinary - writ of summons. He must, as Wiles J. points out in Cox's Case - (5), make a special application to the Court upon affidavit and - convince the Court of the want of jurisdiction asserted. If the - defect is apparent on the facts of the proceedings, the Court is bound to accede to his request; if the defect requires evidence, } the party has a right to furnish it unless he has " by misconduct or laches lost his right." The application is then refused, not - because the Court refuses to prohibit usurpation, but because the - usurpation does not appear and the applicant has lost the right tomake it appear. In the latter case the party is left to the ordinary - remedy if any wrong is done (In ze Birch). Farquharson v. Morgan (6) confirms the view of Willes J. that the party has a right to the writ. He is therefore not a mere informant, but is entitled to relief ex debito justitie (Forster's Case (7), cited with approval by Willes J. in Cox's Case (8) ). :

(1) 15 Q.B., 446, at p. 457. (5) LR. 2 HLL., at p. 279. (2) 24 LJ. Ex. 223. (6) (1894) 1 Q.B., 552.

(4) 15 C.B., 743, at p. 755. (8) LR. 2 H.L., at p. 280.

The case of Ex parte Evans (1) well illustrates the position of a person applying for prohibition. The affidavits cannot be entitled in a cause, because there is no cause. Even the words "In Prohibi- tion" were wrong, because until the Court accedes there is no cause of prohibition in the Court in any sense. But, as Wightman J. said in Evans's Case (2), the rule nisi for prohibition is " the first step towards that object." Now, a party who takes the first recog- nized step to obtain a writ of prohibition thereby begins his " suit " or " pursuit " of the writ. Cokesays "an action is the legal demand of a man's right " (Co, Litt., 285a), which accords with the judgment of Marshall C.J. in Weston v. Charleston Corporation (3).

In my opinion, therefore, so far as procedure is concerned, the Commonwealth is properly in Court under sub-sec. m1. of sec. 75

and is in the strictest sense a " party" to what is for convenience called the "record." It fails, in my judgment, only because there is no substance behind the form, the Commonwealth has no suitor's interest whatever in the subject matter of the excess of jurisdiction, and therefore there is no original jurisdiction in this Court to grant

Hiecns J. An order nisi has been made against a Judge of a New South Wales District Court and the widow and children of one Cormie to show cause why a writ of prohibition should not issue, directed to the Judge and the others, to prohibit them from proceeding further upon an order made by the Judge on Ist May 1916.

The nature of the proceedings which led to the order made by the District Court Judge on Ist May has been stated; a full Court consisting of three Justices of this Court has heard arguments on the question as to the jurisdiction of the learned Judge to make the directions to which objection is taken; and the only point as to which the three Justices have invited the attendance of the full bench of seven is this - assuming that the directions given are beyond the powers of the District Court Judge, has the High Court power to make the order nisi absolute ? ;

(1) 2 Dowl. (N.S.), 410. (2) 2 Dowl. (N.S.), at p. 412. (3) 2 Pet., 449.

Tue Kina v. Murray AND Corre. Ex PARTE Tue Com- MONWEALTH,

It has been already decided that there can be no appeal against the order, because the time for appealing has expired under clause 2 of the Second Schedule to the Commonwealth Workmen's Com- - pensation Act. a3

The question turns on sec. 75 of the Constitution. In the first place, it is urged that the prohibition sought is sought " against an officer of the Commonwealth," and that therefore this Court has original jurisdiction. The answer is that a District Court Judge of New South Wales is not an officer of the Commonwealth. It is true that he was exercising federal jurisdiction under a Common- wealth Act ; but he remains an officer of New South Wales, selected by New South Wales, paid by New South Wales, removable by New South Wales, responsible to New South Wales. The District Court has been invested with certain federal jurisdiction under sec. 77 (m1.); but the fact that additional powers have been con- _

ferred upon that Court by the Commonwealth Parliament no more makes the Court, or the Judge, an officer of the Commonwealth " than the gift of a rifle by the British Government to a Belgian soldier would make the latter a British soldier.

Then it is urged that sec. 75 (m1.) applies, which gives to the High Court original jurisdiction "in all matters in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party." It is said that, even if the Supreme Court of New South Wales could grant a prohibition, these words enable the Commonwealth to choose the High Court as its forum and enable the High Court to grant a prohibition. But on this - order nisi is the Commonwealth a "party"; or is it a party "suing"? It is true that the words "suing" and "sued" are directly applicable only to a person acting on behalf of the Common- wealth; but they throw a reflex light on the meaning of sec. = 75 (ut.) in the case where the Commonwealth has no one acting on - its behalf. What party is " suing " under this order nisi, if " suing" _ is an appropriate word? The order nisi is headed "The King against C. E. R. Murray, Judge" &c., " Agnes Wilson Cormie" &c., "Ex parte the Commonwealth of Australia." Tt is the King that sues Murray at the instance of the Commonwealth. "The King may sue fora prohibition " (Bac. Abr., " Prohibition " (c)). The King

is a plaintiff in his own Court, the learned Justice who made the H- C. or A.

order nisi having in effect allowed the King's name to be used. As the King lends the sanction of his name as prosecutor when a

grand jury informs him on their oath that there is sufficient ground yornay axp

for instituting criminal proceedings, so he lends the sanction of his name in prohibition proceedings when a Justice is satisfied that

there is sufficient ground for prohibition proceedings. The King is yoxwrarrn.

the party on the one side of the record ; and here the Judge of the District Court and the Cormies are the parties on the other side. The word " party " is obviously used in the litigious sense - not in a loose vernacular sense as in the phrase "a jolly old party," or even in the sense of "a party to the contract," or "a party to a conspiracy."

No doubt, in the District Court the Commonwealth was a party ; but this proceeding is "in no sense a part or continuation of the action prohibited " - it is wholly collateral to the District Court proceeding, "distinct and independent" (High on Extraordinary Legal Remedies, p. 554). The theory on which the proceeding for pro- hibition is based is that by exceeding his jurisdiction the Judge of the District Court is acting in derogation of the King's Crown and dignity (Bac. Abr., ubi sup.). He is usurping the prerogative (per Willes J., London Corporation v. Cox (1) ). The offence is done to the King, and the King complains. As Brett J. said in Worthington v. Jeffries (2) : - These authorities show that the ground of decision, in considering whether prohibition is or is not to be granted, is not whether the individual suitor has or has not suffered damage, but is, whether the royal prerogative has beén encroached upon by reason of the prescribed order of administration of justice having been dis- obeyed. If this were not so, it seems difficult to understand why a stranger may interfere atall. . . . The real ground of the inter- ference by prohibition is not that the defendant below is individually damaged, but that the cause is drawn in aliud examen, that public order in administration of law is broken." The Commonwealth here has merely informed the High Court by affidavit of the exceeding of jurisdiction (Blackstone, 3 Comm., p. 112); and any stranger in interest could do the same (Bac. Abr., ubi sup.); de Haber v. Queen of

(1) L.R. 2 HLL, 239. (2) LR. 10 C.P., 379, at p. 382.

H.C. or A. Portugal (1). The position of the Commonwealth is analogous, for Ras this purpose, to that of a next friend of an infant, or to that of a Tue Kine relator in an information. The next friend is responsible for cos' Murrey anp but he is not a "party" to the litigation (Dyke v. Stephens (2)). A Cormre. yelator is responsible for costs, but he is not a " party " ; the Cro' Ex parre is the party, acting through the Attorney-General (Attorney-Genei Bee Come v. Logan (3) ). As the Crown is the party, and not the relator, the Attorney-General, and not the relator, has absolute control of the proceedings (Attorney-General v. Haberdashers' Co. (4) ); counsel

will not be heard for the relator as distinct from counsel for the

Attorney-General (Attorney-General v. Governors of Sherborne Grai mar School (5) ). No motion will be heard in the suit as "on behalf of the relator " (Attorney-General v. Wright (6) ). "* Whatever the | relief prayed it is still the information of the Attorney-General" (Attorney-General v. Vivian (7)). }

It is important to determine at what moment of time the p: ceedings for prohibition begin. In the case of ordinary actions, the action begins at the issue of the writ of summons ; in the case of an application for prohibition, the proceedings for prohibiti : in the High Court begin at the grant of the order nisi for a wri of prohibition. Before that moment there is no cause pending in - the High Court, the order nisi is merely the first step towards the object of bringing the matter before the High Court (2x parte Evans (8) ). Before that moment there are no parties; the affidavits on which the order nisi is obtained are not intituled in any cause because there is no cause; do not show any parties - because there are no parties} are intituled merely " In the High Court of Australia" (R. v. Plymouth and Dartmoor Railway Co. (9)). After that moment - the grant of aw order nisi - the affidavits are intituled in the cause, naming the parties (Breedon v. Capp (10) ). This practice is expressly embodied in Order XLVII. of the High 4 Court Rules, rr. 3 and 4. It shows that the proceedings before the - order nisi are one thing and the proceedings after the order nisi are

(2) 30 Ch. D., 189. (7) 1 Russ., 226, at p. 237. (3) (1891) 2 Q.B., 100. (8) 2 Dowl. (N.S.), 410. (4) 15 Beav., 397. (9) 37 W.R., 334,

quite distinct, the door of the High Court having been opened. The point which I take is not - as supposed - that the Common- wealth will not be a party to the writ of prohibition when issued ; but that it is not a party to the present proceeding - the proceeding for a prohibition. It is quite true that the title of the proceeding does not change the nature of the proceeding ; but the title, as prescribed by the cases and by the Rules of Court, indicates correctly the nature of the proceeding.

The case of an action for prohibition has to be carefully distin- guished from a proceeding such as the present. Sometimes the Court of King's Bench enlarged the order nisi, and directed the informer or " suggester" to declare in prohibition - to bring an action for damages. In that case, the difficulty was to find any cause of action in the "suggester" such as would support damages; and a series of feigned facts was devised, not to be traversed, the person to be prohibited being treated as having injured the suggester by disobeying the King's writ alleged to have been issued, and by causing damage to the suggester thereby : damnum was combined with injuria and gave the cause of action (1 Wms. Saunders, 154n.) ; Home v, Earl Camden (1) ). In such an action the suggester became a true plaintiff, a true party to an action, The King was also a party, as ina qui tam action, until the Act 1 Will. IV. c. 21 prescribed that the suggester should be the only party plaintiff, and that the suggester should verify his state- ments by affidavit. The practice is now regulated by the Judica- ture Acts and Rules ; there are no parties to any litigation since the litigation in the inferior Court until the King becomes a party by virtue of the issue of the order nisi for prohibition.

Considerable light and confirmation are to be derived from the decisions in the United States. If we turn to the Constitutior of the United States, we find that under the words on which sec. 75 (m1.) is based, " controversies to which the United States shall be a party," the United States are not treated as a party unless they - or their officer, acting on their behalf - are actually named as a party, plaintiff or defendant, on the record. It was even held that if the Postmaster-General sue a deputy postmaster-general on

H.C. or A. the latter's bond to account and even if it be clear that the Post- 1916. ynaster-General sues on behalf of the United States, and that the

ww 'Tur Kine United States are the substantial party to the actual controversy,

Murrey anp it was not a controversy to which the United States were a " party Corse. within the meaning of the Constitution (Osborne v. Bank of the Uni Ex parte States (1); Postmaster-General of the United States v. Early (2) ). eee Coe Tt was no doubt because of these decisions that in sec. 75 (1) of the Constitution the words were added "or a person suing or

being sued on. behalf of the Commonwealth." This extreme view has been modified in more recent decisions (In re Ayers (3)); - and it may be accepted that the same result has been achiever 3 by judicial decisions as in sec. 75 (11.) of our Constitution by

express words. It is a controversy to which the United States are a "party " if some officer or agent of the United States sue or be ~ sued on behalf of the United States. But after all the critical - examinations of the words used in the United States Constitu- tion, there is no case in which an informant or relator or suggester _ has been treated as a party where the United States (or its officers) are plaintiffs on his information or relation or suggestion. The case - of Weston v. Charleston Corporation (4) turned solely on the con: struction of a particular Act - the Judiciary Act, sec. 25; it was - a case of appeal from a State Court ; and all parties requested the Supreme Court to give its decision on the substantial question é involved, promising entire acquiescence even if the procedure were - wrong (5). 3

For these reasons, I am of opinion that the order nisi should be discharged.

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Judgment (282 paragraphs)

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