The Commonwealth v Mullane

High Court of Australia|1961-07-01|Before: Windeyer JJ

High Court of Australia Dixon C.J. Kitto, Taylor, Menzies and Windeyer JJ. The Commonwealth v Mullane [1961] HCA 28

The judgment of the Court was delivered by Dixon C.J.: -

Dixon C.J., Kitto, Taylor, Menzies and Windeyer JJ.

The respondent in this appeal appealed to the County Court under that provision. His claim was for compensation for an injury arising in the course of a journey from or to the place of his employment.

On the appeal coming on, certain documents were placed before the County Court judge and from them it appeared that the applicant - or appellant, to him - was suffering from a condition described as disseminated sclerosis, and alleged that that condition was aggravated or accelerated by an accident he had had upon a journey from his employment.

It was then made to appear from documents put before his Honour that a Medical Board had been appointed and the Commissioner, or his Delegate, had referred to the Board certain questions. That was done under s. 19 of the Act.

The Medical Board had granted a certificate, portion of which favoured the applicant, but portion of which was said to be unfavourable to him. With those documents and certain other formal documents before him, the judge entertained what was described as a preliminary objection on the part of the Commonwealth. It appears hardly to merit the description preliminary objection: for it was not preliminary and it was hardly an objection. But it was an argument that the certificate was conclusive and that it was conclusive against the applicant or appellant before the County Court. The learned judge took time to consider this argument and delivered a decision or reasons in which he said that he did not regard the certificate as conclusive against the appellant, the employee, upon the issue which fell for him to consider. He gave his reasons, which depended upon the contents of the certificate.

To give effect or form to what he then ruled or the opinion he then expressed, a document was drawn up which he signed. It is expressed as an order might be. The important words of it are: "It is ordered that the preliminary objection taken on behalf of the abovenamed Respondent, that the certificate of the Medical Board, undated, concludes this appeal against the abovenamed Applicant be disallowed and it is ordered that this appeal be set down for hearing at a date to be fixed."

From that document, or perhaps I should say ruling, of the County Court judge, the Commonwealth now appeals to this Court.

The right of appeal of the Commonwealth is ultimately to be traced to s. 73 (ii) of the Constitution, which provides that "the High Court shall have jurisdiction with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders and sentences of any federal court, or court exercising federal jurisdiction."

The County Court, in sitting to hear the appeal under s. 20 was exercising federal jurisdiction. An appeal does not lie from what the County Court then said or did unless it amounted to a judgment, decree, order or sentence.

It is apparent from the description that I have given of the proceedings that what the County Court did was to rule upon a point of law which was raised in opposition to the appeal. If the County Court had ruled against the employee who appealed to the County Court, the County Court might have dismissed that employee's appeal and that would have been an order. It might on the other hand have decided not then and there to dismiss his appeal but to hear more about it by way of explanation, or to enable another tribunal to pass judgment on the view which the learned judge adopted. What his Honour did was simply to give a ruling on a point of law which was raised. It did not conclude the rights of the parties before the hearing of the case was completed. The County Court judge might have altered his mind, he might have ruled otherwise, he might have qualified his ruling; there was no determination. It was something done in the course of the hearing. His Honour realized that and adjourned the hearing to a date to be fixed. It did not, in our opinion, amount to a judgment, still less to a decree; it did not amount to an order and certainly not to a sentence. It is outside the terms of s. 73 of the Constitution and this appeal has no foundation in any curial order which is appealable.

We have taken the course of intervening at this point and stopping the appeal, not because we anticipate at all that the substance of what his Honour has done may prove to be more open to question but because we think it is important that there should not be appeals without foundation brought to this Court. The appeal will be dismissed with costs.

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