Southern Centre Of Theosophy Inc v South Australia

I am in agreement with the judgment prepared by Gibbs J.

I would therefore dismiss matter no. 14 of 1979 and would remit matter no. 12 of 1979 to the Supreme Court of South Australia to enable that Court to hear and determine the application for leave to appeal to the Judicial Committee. I would order the State of South Australia to pay the costs of both proceedings.

The question is whether an appeal lies to the Privy Council from the Supreme Court of South Australia. Such appeals have been excluded in cases where a Supreme Court was exercising federal jurisdiction (see s. 39 (2) of the Judiciary Act 1903 Cth, as amended).

Leaving aside federal jurisdiction, I adhere to the view which I expressed in The Commonwealth v. Queensland [19] and Viro v. The Queen [20] , that the continuance of appeals to the Privy Council from any court in Australia is no longer compatible with the Australian Constitution and the laws made by the Australian Parliament. The effect, under s. 74 of the Constitution, of the Privy Council (Limitation of Appeals) Act 1968 and the Privy Council (Appeals from the High Court) Act 1975 is that all appeals to the Privy Council from the High Court and other federal courts have ended.

1. (1975) 134 C.L.R. 298. 2. (1978) 141 C.L.R. 88.

No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question, howsoever arising, as to the limits inter se of the Constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the Constitutional powers of any two or more States, unless the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council.

The High Court may so certify if satisfied that for any special reason the certificate should be granted, and thereupon an appeal shall lie to Her Majesty in Council on the question without further leave.

Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of Her Royal prerogative to grant special leave of appeal from the High Court to Her Majesty in Council. The Parliament may make laws limiting the matters in which such leave may be asked, but proposed laws containing any such limitation shall be reserved by the Governor-General for Her Majesty's pleasure.

The intention of s. 74, although not spelt out in the Constitution, became clear in regard to inter se questions. As there was no appeal on such questions from the High Court to the Privy Council (without the certificate of the High Court), the Privy Council was not, except with such certificate, to pronounce upon these questions, however arising. In the early part of this century, a controversy arose about whether Parliament could exclude appeals to the Privy Council from Supreme Court judgments made in the exercise of federal jurisdiction (see s. 39 (2) of the Judiciary Act). The validity of that exclusion was denied by the Privy Council (see Webb v. Outtrim [21] ) and asserted by the High Court (see Flint v. Webb [22] ; Commissioners of Taxation (N.S.W.) v. Baxter [23] ; Lorenzo v. Carey [24] ). The High Court's view prevailed, although the Privy Council has often (without jurisdiction) heard appeals from Supreme Courts which were exercising federal jurisdiction. This has not been primarily the fault of the Privy Council. In Felton v. Mulligan [25] Walsh J. observed that leave to appeal to the Privy Council had been granted by the Supreme Court in a considerable number of cases, contrary to the provisions of s. 39 (2) of the Judiciary Act; the question that the Supreme Court decisions were an exercise of federal jurisdiction was not raised [26] . The Privy Council now seems to have accepted that the intention of s. 74 was to prevent the Privy Council's hearing appeals on inter se questions and that the High Court was the final arbiter unless it gave a certificate. In Dennis Hotels Pty. Ltd. v. Victoria [27] the Privy Council said:

it has always been recognized that the general purpose of the agreement enacted in s. 74 is to reserve for the final decision of the High Court in Australia, unless the Court itself wishes to refer the matter to the Judicial Committee, "questions which arise in connexion with the federal distribution of power between the Commonwealth on the one hand and the States on the other" (Quick & Garran, The Annotated Constitution of the Australian Commonwealth (1901), p. 757). The clear intention of s. 74, as was said by Isaacs J., in Pirrie v. McFarlane [28] is that "on the purely Australian question of the distribution of the totality of governmental powers on this continent, the High Court of Australia - the highest judicial organ created by the Australian people - was to be the final arbiter, unless it voluntarily requested the intervention of the Sovereign in Council." 1. (1906) 4 C.L.R. 356. 2. (1907) 4 C.L.R. 1178. 3. (1907) 4 C.L.R. 1087. 4. (1921) 29 C.L.R. 243. 5. (1971) 124 C.L.R. 367, at p. 412. 6. (1971) 124 C.L.R., at p. 413. 7. (1960) 104 C.L.R. 529, at pp. 625-626; [1962] A.C. 25, at pp. 50-51. 8. (1925) 36 C.L.R. 170, at p. 196.

If that is accepted as the purpose of s. 74, it follows that s. 74 itself (that is, without the support of s. 39 of the Judiciary Act) operates to prevent any appeal to the Privy Council from any other Australian court on an inter se question; otherwise its purpose would be frustrated.

By similar reasoning, the last sentence of s. 74 provided a means for Parliament to achieve the same result in regard to any other class of questions, by limiting the matters in which special leave may be asked. Such limiting legislation would not only exclude appeals from the High Court to the Privy Council, but would achieve the corollary of excluding appeals from any other court to the Privy Council on those matters. The power to limit the matters in which special leave may be asked authorized the complete abolition of appeals (see Attorney-General (Cth) v. T. & G. Mutual Life Society Ltd. [29] ). Thus, all questions could be excluded, along with all matters. The certificate provision is a dead letter. The Privy Council (Limitation of Appeals) Act and the Privy Council (Appeals from the High Court) Act which were enacted under s. 74, abolish appeals in all matters from the High Court to the Privy Council. I leave aside the provision for residual proceedings which had already been commenced in a court.

The operation of s. 74 is such that the abolition of all appeals to the Privy Council from High Court decisions on appeal from State Supreme Courts was accompanied by the entire exclusion of all possible appeals from State Supreme Courts to the Privy Council. Section 73 of the Constitution ensures that the High Court has jurisdiction to hear appeals from State Supreme Courts in any class of appeal in which the Privy Council had jurisdiction to hear such appeals directly from State Supreme Courts. Therefore, the effect of ss. 73 and 74 is that (after the two Acts) there could be no remaining class of appeal from Supreme Courts to the Privy Council.

Thus, the Constitution has at all times provided for one final court on any question. On inter se questions, the High Court was always the final court (except when it granted a certificate). Apart from inter se questions, until Parliament passed limiting legislation excluding appeals in certain matters, the Privy Council was the final court on those matters. When appeals from the High Court were excluded in every class of matter, the corollary was that the High Court became the final court on every matter. Such a construction avoids the absurdity and inconvenience of two final courts.

In matter no. 12 of 1979, the application for leave to appeal to the Queen in Council should be refused.

In matter no. 14 of 1979, it should be declared that the Supreme Court of South Australia has no power to grant leave to appeal to the Queen in Council from the judgment in question, and that the motion for leave to appeal was not competent.

I have had the advantage of reading the reasons for judgment prepared by my brother Gibbs. I am in complete agreement with what he has said and the order which he proposes. I would add only that the reasons for judgment of my brother Stephen in China Ocean Shipping Co. v. State of South Australia [58] also deal fully with the reasons for rejecting the argument on behalf of that State in the present case.

I have had the advantage of reading the reasons prepared by Gibbs J. I agree with them and with the order he proposes.