R v Whitfeld [1913] HCA 7

twre Act 1903 (No. 6 of 1903), sec. 39 (2) - Immigration Restriction Act 1901 peak

By virtue of sec. 39 (2) of the Judicature Act 1903 Courts of General

Sessions of the State of Tasmania are, within the limits of their jurisdiction, gyimun c.J.,

. - Se Rah Barton and invested with federal jurisdiction. ee

'As the Courts of General Sessions in Tasmania have no general appellate jurisdiction, but have merely particular appellate jurisdiction conferred upon them in several cases by particular Statutes, sich Courts have no general jurisdiction to hear appeals from justices in matters of federal jurisdiction.

Hdd, therefore, that a Court of General Sessions in Tasmania has no jurisdiction to hear an appeal from a conviction by a magistrate of a person for an offence under sec. 7 of the Immigration Restriction Act 1901, as a con- viction for an offence of that nature is not one in respect of which appellate jurisdiction has been conferred by any Statute on Courts of General Sessions in that State.

The applicant, Quon Tat, was convicted by a magistrate under sec. 7 of the Immigration Restriction Act 1901 (No. 17 of 1901) of being a prohibited immigrant. He appealed to the Court of General Sessions at Launceston, which was constituted of Ernest Whitfeld (the Chairman) and two other justices, but they refused to hear the appeal on the ground that they had no jurisdiction. On application to a Justice of the High Court in Chambers, he obtained an order nisi calling upon the Chairman and the two other justices to show cause why a writ of mandamus should not issue to compel them to hear and determine the appeal.

M. J. Clarke, for the applicant. Under sec. 39 of the Judiciary Act a Court of General Sessions of Tasmania has federal jurisdic- tion within the limits of its jurisdiction: Ah Yiek vy. Lehmert (1).

The Court must look generally at the Acts passed by the Tasmanian Parliament, and see whether, in construing sec. 39 of the Judiciary Act in conjunction therewith, there would be a right of appeal. There is no necessity to have express words giving an appeal, if the intention to give it is clear: R. v. Justices of Surrey (2).

GrirrirH C.J. This application purports to be founded on sec. 39 (2) of the Judiciary Act, which provides that "The several Courts of the States shall within the limits of their several juris- dictions, whether such limits are as to locality, subject matter, or otherwise, be invested with federal jurisdiction" in certain cases.

This provision was considered by this Court in the case of Ah Yick v. Lehmert (1), where the question was as to the juris- diction of the Court of General Sessions in Victoria. I quote a few words from my own judgment (3): - * This enactment relates to all the Courts of the States, and may be read as if all those Courts were enumerated. Let us take the Court of General Sessions of Victoria and apply the section to this Court,

.L.R., 593. (2) LR. 5 Q.B., 87, at p. 91. Ne ee (3) 2 C.L.R., 593, at p. 605,

and it will read thus: - ' Courts of General Sessions of the State of Victoria shall within the limits of their jurisdiction be invested with federal jurisdiction in all matters enumerated in secs. 75 and 76 of the Constitution. Then we have to inquire what is the jurisdiction of Courts of General Sessions in Victoria? On that inquiry we find that they have both original and appellate jurisdiction."

Applying that to the present case, sec. 39 (2) may be read thus : - " Courts of General Sessions of the State of Tasmania shall within the limits of their appellate jurisdiction be invested with federal jurisdiction." The question then arises: What are the limits of the appellate jurisdiction of Courts of General Sessions in Tasmania? Appellate jurisdiction must be conferred by Statute, and Courts of General Sessions have only such appellate jurisdiction as is expressly conferred on them. But we find that they have no general appellate jurisdiction, but only jurisdiction in particular cases, conferred by particular Statutes which do not cover the present case.

It is clear, therefore, that they have no appellate jurisdiction in this case.

Barron J. Iam entirely of the same opinion. I was inclined to refuse Mr. Clarke's application for an order nisi when it came before me in vacation, but taking into consideration the nearness of these sittings and the importance of the subject matter, I thought it desirable that a final decision of the Full Court should be obtained.

Isaacs J. Iam of the same opinion, and have nothing to add. Order nisi discharged. Solicitor, for the applicant, MM. J. Clarke, Launceston.

Solicitors, for the respondent, Law, Weston & Archer, Launces- ton.