Saunders v Borthistle [1904] HCA 13

Saunders v Borthistle [1904] HCA 13 - HCA 1904 case summary — Zoe

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to be read together. The difficulty has arisen from the legislature having brought together into one section terms and definitions which were originally in separate Acts. " Travelling sheep" was a term used originally in an " Act for the prevention and cure of diseases in sheep," and defined for the purposes of that Act. That Act contained provisions with reference to diseased sheep, and sheep travelling in districts where disease was known or suspected to exist, and certain duties were imposed upon the owners of such sheep for the furtherance of the objects of the Act. Then the Act 41 Vict. No. 19, called " Diseases in Sheep Amending Act," was passed, which was (see. 1), to be read with the 30 Vict. No. 16. The later Act, in one part (sees. 15 to 20), dealt with " travelling stock " pure and simple, and imposed duties upon "drovers," and both these terms were for the first time defined, in the interpretation clause, for the purposes of that part. That group of sections (15-20), is identical with secs. 97-102 in Part IV, of the Consolidated Act, under the heading " Travelling Stock." The governing words of sec. 97 are " drover" and travel- ling stock." The duty is imposed on the " drover," the person in charge, but by the definition in sec. 4 the person in charge is not a "drover" unless the stock in his charge are "travelling stock," i.e. are "travelling 40 miles and upwards," &. When the section speaks of a "drover in charge of travelling sheep," it must mean sheep that come within the definition of "travelling stock." Otherwise the meaning of "drover" must be different in the two parts of the section. Moreover, the latter part of the section assumes that the duty is imposed only in respect of "travelling stock," for it uses the words "such travelling stock" to refer to the "stock" previously mentioned, i. sheep, horses or cattle. The words " travelling sheep" in the first part of the section cannot mean "travelling sheep" in the technical sense of the definition in see. 4, but mean simply " travelling stock" which happen to be "sheep." It cannot be assumed from the mere fact of the definition of the term "travelling sheep" being placed in the 4 same section as those of "drover" and "travelling stock," that the legislature intended to alter the law. Such an intention is clearly negatived by the grouping of the sections, and by the ; headings in the Consolidated Act. These have been arranged in -

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On the matter coming before us, Sir Julian Salomons, for the respondent, contended that we had no power to entertain the appeal because the decision appealed from was not a judgment of the Supreme Court within the meaning of sec. 73 of the Constitu- tion. That section gives the High Court jurisdiction to hear and determine appeals from all judgments decrees orders and sentences of the Supreme Court of any State, or of any other Court of any State from which, at the establishment of the Commonwealth, an appeal lay to the Queen in Council. It was objected that the decision of Pring, J., under the circumstances, was not a judgment of the Supreme Court. It is necessary, therefore, to see what is the law under which he gave his decision. The Justices Act, 1902, Part V., contains provisions relating to appeals to the Supreme Court from the decisions of justices by way of special case. The provisions in those sections are analogous to those which have been in force for many years in England, and in most of the Australian States. The appellant is entitled - [His Honor read sec. 101]. The case is then sent to the Prothonotary of the Supreme Court. Then sec. 106 provides - [His Honor read the section.] Then comes the section under which the objection sec. 107 - [His Honor read the section]. Sec. 108 provides that "any justice or justices may enforce any conviction or order affirmed amended or made by the Supreme Court in the determination of any such ease in the same manner as the justice or justices who originally decided the matter might have enforced his or their determination if there had been no appeal." So it is plain from the scheme of the Act that the right of appeal that is given is to the Supreme Court. After the Court has dealt with the appeal the justices are directed to enforce the order or award of the Supreme Court. The jurisdiction is therefore conferred upon the Supreme Court, but it is provided that the jurisdiction, so vested in it, may, subject to any rules

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Judges. Sometimes two or more Judges sit together as the Court, in many cases one Judge exercises the jurisdiction of the Court, _ but in every case the judgment of the Judge or Judges is in law the judgment of the Supreme Court. There may or may not be an appeal from the judgment, but the jurisdiction can only be exer- -cised by the Court. Suppose the question arose in pleading afterwards, the judgment would be pleaded as a judgment of the Supreme Court. Could the plea be objected to on the ground that _ it was merely the decision of a Judge sitting in Chambers. It seems to me impossible to contend that the decision of a Judge exercising this jurisdiction is anything but a judgment of the Supreme Court within the meaning of sec. 73 of the Constitution. It is said that this is inconsistent with the decision in the case, Zn re Paul (1902), 2 S.R. (N.S.W.), 196, a petition for leave to appeal from the order of a Judge sitting in Chambers, in which it was held that there was no appeal to the Privy Council from such a decision. My opinion may or may not be reconcilable with that case. If it is not, I cannot help it. I am of opinion that the decision of Pring, J., was a judgment of the Supreme Court, and that therefore an appeal lies from it to the High Court, unless the amount involved is under the appealable amount, in which case there is an appeal only by special'leave, under the conditions pre- scribed by the Constitution. It is objected, that if the Court holds 'that this was such a judgment, a great number of appeals will come to this Court from the decisions of Judges sitting in Chambers, but the answer to that objection is that an appeal would only lie by special leave where the amount was below £300, d the Court could, if it thought fit, refuse to grant such leave. 'his Court has already refused special leave to appeal from the ecision of a single Judge where there was a right of appeal to e Supreme Court. This was done in two cases in Melbourne and one in Western Australia on that ground. This decision does ot affect the question whether an appeal will lie to the Supreme urt or not from a decision of a Judge sitting in Chambers

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