WEALTH v Krec-

Validity Act 1865 (28 & 29 Vict. c. 63), secs. 2, 5 - Supreme Court Act 1915 aes

Viet.) (No. 2733), secs. 30, 38, 232-234 - Imperial Order in Council of 23rd . January 1911, ae Oe Gavan Duffy,

An action having been brought against the Commonwealth in the Supreme ee

Court of Victoria and judgment having been given for the Commonwealth, on Starke JJ. appeal to the Full Court of the Supreme Court by the plaintiff a contention

ew THE Common- WEALTH v Krec- LINGER & Fernav Lr. AND

was raised by the Commonwealth that under sec. 39 (2) (a) of the Judiciary. Act 1903-1920 the only right of appeal was to the High Court. The Full Court, on the ground that sec. 39 (2) (a) was ultra vires, rejected the contention, _ and then heard the appeal and dismissed it. On the hearing of an application - by the plaintiff to the Full Court for leave to appeal to the Privy Council pursuant to the Imperial Order in Council of 23rd January 1911, the Full Court, accepting as binding on it the decision that sec. 39 (2) (a) was invalid, made an order granting the leave asked. On appeal to the High Court from the order granting leave,

Held, by Knox C.5., Isaacs, Gavan Duffy, Powers and Rich JS. (Higgins J. dissenting), that on the hearing of the appeal to the Full Court a question arose as to the limits inter se of the constitutional powers of the Commonwealth and those of the State of Victoria, within the meaning of sec. 74 of the Constitution and of secs. 384 and 40a of the Judiciary Act; that under sec. 40a the cause was removed to the High Court: and, therefore, that the Full Court had no jurisdiction to entertain the appeal or to make the order granting leave to appeal to the Privy Council.

Per Isaacs, Rich and Starke JJ.: Whether the Full Court had or had not jurisdiction to entertain the appeal, see. 39 (2) (a) of the Judiciary Act is a valid exercise of the power conferred by sec. 77 (t11.) of the Constitution, and therefore the Full Court had no jurisdiction to make the order granting leave: to appeal to the Privy Council.

Pirrie v. McFarlane, (1925) 36 C.L.R. 170, and Commonwealth v. Limerick Steamship Co., (1924) 35 C.L.R. 69, followed.

Webb v. Outrim, (1907) A.C. 81; 4 C.L.R. 356; Barter v. Commissioners of Taxation (N.S.W.), (1907) 4 C.L.R. 1087, and Union Steamship Oo. of New Zealand v. Commonwealth, (1925) 36 C.L.R. 130, discussed.

Bardsley and Kreglinger & Fernau Ltd. v. Commonwealth, (1925) 47 A.L.T.. 181, overruled.

Decision of the Supreme Court of Victoria (Full Court) reversed.

An action was brought in the Supreme Court by Kreglinger & - Fernau Ltd. and W. Angliss & Co. Pty. Ltd., on behalf of themselves. - and all other suppliers of skin wool under the provisions of the War Precautions (Wool) Regulations and the War Precautions (Sheepskins) Regulations, other than Frederick Bardsley, against the: Commonwealth, the Central Wool Committee, Sir John Michael Higgins, Edmund Jowett, Franc Brereton Sadlier Falkiner, Walter James Young, Andrew Howard Moore, William Stevenson Fraser,. Robert Bond McComas, Burdett Laycock, John Fox, John Mackay,.

s Robert Murphy (the two last-named defendants being sued their own behalf and as representing all other persons interested s suppliers of shorn wool under the provisions of the above mentioned Regulations), the British Australian Wool Realization issociation Ltd., and the defendant Sir John Michael Higgins, who s also sued as the trustee under certain deeds. The plaintiffs' im was, shortly, to recover a share in certain moneys alleged to have been received by the Commonwealth or by some or one of 'the other defendants upon trust for the persons who had supplied skin wool under the provisions of the Regulations above mentioned. _ An action was also brought by Frederick Bardsley against the ame defendants, claiming substantially the same relief.

The actions were heard by Cussen J., who dismissed both of them with costs. The plaintiffs in each case appealed to the Full Court, which dismissed each appeal with costs: Bardsley and Kreglinger & Fernau Lid. v. Commonwealth (1).

_ An application was in each case made by the plaintiffs to the Full Court of the Supreme Court for leave to appeal to the Privy Council pursuant to the Order in Council of 23rd January 1911, and n each case leave was granted: Bardsley and Kreglinger & Fernau Tid. v. Commonwealth (2).

From the order granting leave to appeal to the Privy Council in each case the defendants now, by leave, appealed to the High Court ; nd the appeals were heard together.

Owen Dizon K.C, (with him Russell Martin), for all the appellants other than those separately represented. The Commonwealth being party to the action, the jurisdiction of the Supreme Court to hear _it was Federal jurisdiction. Being Federal jurisdiction, sec. 39 (2) (a) of the Judiciary Act 1903-1920 operated to make an appeal to the th Court the only means of appealing from the judgment of J. The validity of sec. 39 (2) (a) is expressly decided in nwealth v. Limerick Steamship Co. (3). The decision in that se is not inconsistent with the decision in Union Steamship Co. of few Zealand v. Commonwealth (4) as to the effect of the Colonial

1. (1025) 47 A.L.T. 181. : (3) (1924) 35 C.LR. 69. ») (1925) 47 A.L.T. 190 (note). (4) (1925) 36 C.L.R. 130.

THe ComMoN- WEALTH v. Krec- LINGER & Fernau Lev. AND Barpstery.

Laws Validity Act 1865. Sec. 2 of the Colonial Laws Validity Act is qualified by sec. 5, which was intended to give colonial legislatures the power to confer jurisdiction on Courts and to regulate appeals therefrom both positively and negatively - that is, by giving or by taking away a right of appeal, subject always to the prerogative - right to allow appeals to be brought to the King in Council. Sec, - 39 (2) (a) is an exercise of that power, and is not affected by sec. 2 : of the Colonial Laws Validity Act. Any conflict with regard to sec. 39 (2) (a) is between secs. 77 and 51 (xxxrx.) of the Constitution, under - the authority of which sec. 39 (2) (a) was enacted, and the Privy ; Council Appeal Act 1844, under which the Order in Council of 23rd January 1911 (Victorian Statutes 1915, vol. v., pp. 4527 et seq.) was made - a conflict between two Imperial Acts ; and in that case the later Act must prevail (Commonwealth v. Limerick Steamship Co. (1) ). The question whether sec. 39 (2) (a) is valid is a question as to the limits inter se of the constitutional powers of the Common: wealth and a State, and the case therefore falls within secs. 384 and - 40a of the Judiciary Act. If sec. 39 (2) (a) operates in a case of - Federal jurisdiction, it takes away from the subject a right of appeal _ to the Privy Council which he had under the Victorian Swpreme Court Act. There is thus a collision between the legislative power of the - Commonwealth and that of a State (see Jones v. Commonwealth Court of Conciliation and Arbitration (2) ). There is also a collision between _ the legislative power of the Commonwealth and the judicial powers - of the State, which are constitutional powers; for the validity of sec. 39 (2) (a) depends upon whether there can be ascribed to the - Federal Parliament a legislative power the demarcation of which - affects the power of the State Judicature (see Pirrie v. Macfarlane (3); BR. v. Maryborough Licensing Court; Ex parte Webster & Co. (4)).

Russell Martin, for the appellants the British Australian Wool - Realization Association Ltd., Mackay, Murphy and Sir John - Higgins. These appellants rely upon the decision in Commonwealth - v. Limerick Steamship Co. (5).

(2) (1917) A.C. 528; 24 C.L.R. 396. (4) (1919) 27 C.LLR. 249. (3) (1925) 36 C.L.R. 170, at pp. 192, (5) (1924) 35 C.L.R. 69.

Sir Edward Mitchell K.C. and Gregory (C. Gavan Duffy with them), 1 the respondents. The respondents challenge the correctness of the decision in Commonwealth v. Limerick Steamship Co. (1), on the 'grounds that it is inconsistent with the decision in Union Steamship Co. of New Zealand v. Commonwealth (2) and that it is inconsistent with the decision in Baxter v. Commissioners of Taxation (N.S.W.) (3), and on general grounds (see Amalgamated Society of Engineers Adelaide Steamship Co. (4); Read v. Bishop of Lincoln (5) ). _ [Kxox C.J. The Court thinks that counsel should be allowed to ie that the decision in Commonwealth v. Limerick Steamship Co. (1) is inconsistent with Union Steamship Co of New Zealand v. Commonwealth (2) and with Baxter v. Commissioners of Taxation (W. S.W.) (3). Beyond that, we are not prepared to go. We expect

• you to establish that inconsistency by an examination of those ~ cases and not by general argument.] 4 In Bazter's Case (3) it was determined that the effect of the decision of the Privy Council in Webb v. Outrim (6) was that sec. 39 (2) (a) was invalid so far as it purported to prevent an appeal 4 the Supreme Court of a State to the Privy Council as of right ; and the reasoning in the former case was confirmed by Lorenzo v. Care (7). If sec. 39 (2) (a) is otherwise valid and has the effect
• of taking away the right of appeal to the Privy Council as of right, _ itis, within the meaning of the Colonial Laws Validity Act, repugnant to the Order in Council of 23rd January 1911, which was made after the decision in Webb v. Outrim, and which gives a right of appeal from any final judgment of the Supreme Court, that is, applying the decision in that case, from every final judgment of that Court. That there is a repugnancy is established by the Union 'Steamship Co.'s Case (2), the facts in that case being indistinguishable ; those in this case. In that case the conflict was between the 'avigation Act, passed under the power conferred by secs. 51 (r.) nd 98 of the Constitution, and the Merchant Shipping Acts. Here e conflict is between sec. 39 (2) (a) of the Judiciary Act, passed under the power conferred by sec. 77 (11.) and (111.) of the Constitution,

i (1924) 85 C.L.R. 69. (4) (1920) 28 C.L.R. 129, at p. 142.

• (2) (1925) 36 C.L.R. 130. (5) (1892) A.C. 644, at p. 655. (1907) 4 C.L.R. 1087. (6) (1907) A.C. 81; 4 CLR. 356,

and the Order in Council, which has all the force and authority. f the Privy Council Appeal Act 1844, under which it was made. N distinction in this respect can be drawn between the power given by secs. 51 (1.) and 98 of the Constitution and that given by sec. 77 (1) and (11.). There is nothing in the Constitution which can construed as a repeal of the Privy Council Appeal Act or as giving a power to enact laws inconsistent with Orders in Council made under - it. No question as to the constitutional powers inter se of the Commonwealth and the State arose either on the appeal from the judgment of Cussen J. or on the application for leave to appeal to the Privy Council. The question whether sec. 39 (2) (a) prevented an appeal from the judgment of Cussen J. to the Full Court was

not an inter se question ; for upon its proper construction that section does not in a matter of Federal jurisdiction prevent an appeal from a primary Judge to the Full Court (Ah Yick v. Lehmert (1) ). Nor on the application for leave to appeal to the Privy Council was the question whether sec. 39 (2) (a) prevented an appeal to the Privy Council an inter se question. The conflict was not between the constitutional power of the Commonwealth and the constitutiona power of the State, but was between the constitutional power of the Commonwealth and the power conferred by the Order in Council. The exercise by the Supreme Court of the judicial function conferred by the Order in Council is not the exercise of a constitutional power of the State. Although the Supreme Court decided that an inter se question did arise on the appeal from Cussen J., that is not conclusive. An inter se question does not arise if as a matter of law there are independent grounds upon which the Supreme Court can and ought to decide the case (Miller v. Haweis (2); R. v. Maryborough Licensing Court; Ex parte Webster & Co. (3)). In this case the Supreme Court could and should have decided that on its proper construction sec. 39 (2) (a) did not take away the right of appeal _ to the Full Court. Secs. 38a and 40a did not take away that right of appeal, since no inter se question arose. Those sections apply only to such cases as, when removed, the High Court would have jurisdiction to deal with on the merits; and therefore they could not apply to

(1) (1905) 2 C.L.R. 593. (2) (1907) 5 C.LLR. 89. (3) (1919) 27 C.L.R. 249.

e application for leave to appeal to the Privy Council, since the Court has no authority under the Order in Council to grant e application. [Counsel also referred to Cuvillier v. Aylwin (1) ; e Kaikhooscrow Hormusjee v. Cooverbhaee (2); Parkin v. es (3); In re Initiative and Referendum Act (4); Richelien and io Navigation Co. v. Owners of s.s. Cape Breton (5).]

Owen Dixon K.C., in reply. An inter se question arises whenever question is how much Federal power there is and the answer to question necessarily imports that there is either more or less ab olute power in the State than there otherwise would be. Applying

to this case, if the State, having power to legislate on the on whether there shall be a right of appeal to the Privy Council, such a right, the answer to the question has the Federal nt power to say that there shall not be such an appeal if the answer is in the affirmative, involve the reduction of State power to legislate on the subject. The " absolute power " the State means the power which the State can exercise without sibility of interference by Federal legislation. The question may in any manner, and is not necessarily one of the issues between parties; it is a legal question to be solved. It must be a estion logically involved as a matter of law in the determination the case. There is not any necessity for a conflict between wealth and State or between Commonwealth legislation State legislation. [Counsel referred to Cameron's Canadian pain and the Judicial Committee, p. 37; R. v. Eduljee (6); Alttorney-General for Queensland v. Attorney-General fis Commonwealth (7).]

The following written judgments were delivered : - , Kyox C.J., Gavan Durry anp Powers JJ. The Commonwealth

\d. App. 448. (6) (1846) 5 Moo. P.C.C. 276, at pp. (1905) 2 C.L.R. 315. 294-295.

(1919) A.C, 935, at p. 944, (7) (1915) 20 C.L.R. 148, at p. 177.

Yw THE Common- WEALTH ». Krec- LINGER & Fernav Lr. AND Barpstey.

leave to the respondent Bardsley to appeal to the Privy Council from a judgment of the Full Court of the Supreme Court of Victoria dismissing his appeal from the judgment of the trial Judge - Cussen J. - dismissing the action. The action was brought in the Supreme Court to recover a share in certain money alleged to have been received by the Common- wealth or by some or one of the other defendants, upon trust for the persons who had supplied skin wool under the Wool and Sheepskin. Regulations. The action was dismissed mainly on the ground #1 the matter in issue was concluded by the decisions of this Court and of the Judicial Committee in John Cooke & Co. Pty. Ltd. y. Commonwealth (1). The plaintiff - the present respondent - appealed from the judgment of Cussen J. to the Full Court of # Supreme Court of Victoria. The right of appeal from a s Judge of the Supreme Court to the Full Court is given by sec. of the Victorian Supreme Court Act 1915, and depends on statutory provision. On the hearing of the appeal counsel for the present appellants contended that the Full Court had no jurisdiction to entertain the appeal because the jurisdiction exercised by Cussen J. was Feder jurisdiction conferred by sec. 39 of the Commonwealth Judiciary Ac 1903-1920, and sub-sec. 2 (a) of that section provided that the only right of appeal was to the High Court, the decision of the trial Judg being a decision of the Supreme Court within the meaning of that sub-section. It was not denied that Cussen J. in entertaining and deciding the cause was exercising Federal jurisdiction with which the Supreme Court was invested by sec. 39 (2) of the Judiciary Ad | but it was said that sec. 39 (2) (a) did not operate to take away E the right of appeal to the Full Court from his decision for the following reasons, namely: (1) that on its true construction the sub-section did not apply to the judgment pronounced on the tria of the action ; (2) that if the sub-section did so apply it was rendered ineffective by the operation of the Colonial Laws Validity Act, and (3) that the sub-section was beyond the legislative competence 0! the Commonwealth Parliament. The Full Court rejected the first and second of these contentions, and it therefore became necessary, in order to determine whether (1) (1922) 31 C.L.R. 394; (1924) 34 C.L.R. 269. ;

'the appeal was competent, to decide whether sec. 39 (2) (a) was a H.C. or A.

valid exercise of the legislative power of the Commonwealth. In other words, the question whether the enactment was valid was a

question "arising," within the meaning of that word as used in cone,

secs. 38a and 40a of the Judiciary Act. It follows that, if that

of that Court was to proceed no further in the cause, which was by ,,,,

validity of secs. 384 and 40a is established by the decision of this Court in Pirrie v. McFarlane (1). We entertain no doubt that the question which thus arose for decision was a question as to the "limits infer se of the constitutional powers of the Commonwealth and those of the State of Victoria. The question was whether the Commonwealth enactment or the Supreme Court Act of Victoria should prevail, the former, on the construction adopted by the Full Court, denying the right of appeal from Cussen J. to the Full Court which was conferred by the Supreme Court Act. The one enactment : an exercise of the constitutional legislative power of the Commonwealth, the other an exercise of the constitutional legislative power of the State of Victoria. If authority be needed for the proposition that the question whether the Federal enactment was lid was a question as to the limits inter se of the constitutional powers of the Commonwealth and those of a State, it will be found in the opinion of the Judicial Committee in Jones v. Commonwealth of Conciliation and Arbitration (2) and in the decision of this in Pirrie v. McFarlane.

seded, leaving nothing to be done by that Court except the isterial duty of the proper officer imposed by sec. 40a (2) of the iciary Act, neither party took any steps to obtain a decision of this Court on the merits of the appeal. The Full Court of the Supreme proceeded with the hearing of the appeal and dismissed it, he provisions of secs. 38a and 40a of the Judiciary Act having

(l) (1925) 36 CLR. 170. (2) (1917) A.C, 528; 24 C.L.R. 396. YOR, XXXVI. 26

force of sec. 40a of the Judiciary Act removed into this Court. The jane oe

• question was one as to the limits inter se of the constitutional powers Niele ERNAU 'of the Commonwealth and those of a State, the Supreme Court had Lop.

'no jurisdiction to decide it, and that on the question arising the duty Baxpstey.

H.C. or A. apparently not been sufficiently brought under the notice of the 1926. Court. The appeal having been dismissed, the plaintiff applied for

Tne and obtained leave to appeal to the Judicial Committee from that CERES judgment, the Full Court which heard the application for leave to

ae appeal accepting as binding on it the decision of the Full Court whi gee heard the appeal, that sec. 39 (2) (a) was invalid. The defendan a created then obtained special leave to appeal to this Court from the ord

B. Pein giving leave to appeal; and it is that appeal and that alone which is Knoxeg, HOW before this Court for decision. gaven Puy J. Ty the circumstances it is clear that the Full Court of the Supreme

Court had no jurisdiction to entertain the appeal from Cussen J. or to pronounce judgment upon it. By force of the statute the who le cause was at that stage removed from the Supreme Court into this Court, and it follows that the order granting leave to appeal to Privy Council was made without jurisdiction.

should be as follows : - A majority of the Court being of opinion that the matter of the appeal from the judgment of Cussen J., pronounced on 26th March 1925, to the Full Court of the Sup Court of Victoria involved a question which arose as to the li inter se of the constitutional powers of the Commonwealth and those of the State of Victoria, the Court orders as follows, namely = (1) Declare that by virtue of sec. 38a of the Judiciary Act 1903- 1920 the Full Court of the Supreme Court of Victoria had no juris diction to determine the matter of the said appeal. (2) Decla that upon the said question arising before the said Full Court it was the duty of that Court to proceed no further in the cause in which the said judgment of Cussen J. was pronounced, and that such cause was by virtue of sec. 40a of the said Judiciary Act removed to this Court. (3) Order that the present appellants or any of them and the present respondent are to be at liberty to apply to this Cor in the said cause as they or it may be advised. (4) Discharge the order of the Full Court of the Supreme Court of Victoria date 4th December 1925 whereby leave was granted to the p respondent to appeal to His Majesty in Council. Costs of this app reserved.

OF AUSTRALIA. Another - The same reasoning leads us to the same conclusion in

Ysaacs J. T agree with what is said in the judgment of the Chief tice, Gavan Duffy and Powers JJ., as to these cases falling within . 88a of the Judiciary Act and as to the competency of the Commonwealth Parliament to enact that section. But I defer the statement of my reasons for that opinion until I have dealt with other branch of the cases as argued before us. I refer to the ion of the validity of sub-sec. 2 (a) of sec. 39 of the Judiciary as that sub-section stands. Both branches of these cases 'ighly important to the constitutional power of the Common- ; but precedence in importance must unquestionably be given at concerning sec. 39 (2) (a). It means reviewing the Limerick se (1) at the two most sensitive points of its contact with Imperial control, namely, the effect on local tribunals of a standing decision the Judicial Committee and the control of future appeals to His Majesty in Council. I therefore place it first in order of consideration. question is: Has the Commonwealth Parliament the power under the Constitution so to regulate the exercise of Federal juris- dic tion by a State Supreme Court that appeals from that Court, xe eising that jurisdiction, shall be brought only to the High Court \ustralia ; thus eliminating whatever appeals from the State Court to the Privy Council might otherwise exist ? I should first state e concrete controversy that has arisen.

1. The Controversy. - The immediate matter before us is whether etwo orders of the Full Court of Victoria, made on 4th December granting leave to appeal to His Majesty in Council under the in Council of 23rd January 1911 should stand or be set aside. however, depends on the proper solution of one or both of problems in debate, constituting the separate branches I have ed to. The first problem is this: Assuming there were in cember judgments of the Full Court of the Supreme Court in two causes, which were valid and operative unless and until ersed or modified on appeal, did sec. 39 (2) (a) of the Judiciary Act 1903-1920 validly operate so as to make an appeal to this Court

The Commonwealth and Others v. Kreglinger & Fernau Ltd. and H.C. or A.

THe Common- WEALTH v. Krec- LINGER & FeRNav Lrp. AND BarpsLey.

H.C. or A. the only appeal legally permissible ? The second may be stated

THE ComMon- WEALTH v. Krec- LINGER & Fernav Lyrp. AND

thus: Were there in law in the Supreme Court of Victoria at the time the December orders were made, judgments of the Full Court of 12th November 1925 - that is, judgments of which the law would - take cognizance and which fell within the Order in Council as judgments in and under the control of the Supreme Court? The argument for the respondents on the first problem was nominally limited to two points. Taking the Limerick Case (1) as otherwise governing the matter, the Court permitted reconsideration on two grounds only, namely, - (1) that it was inconsistent with the prior decision in Baster's Case (2), and (2) that it was inconsistent with the later case of Union Steamship Co. of New Zealand v. Commonwealth (3). On this, two observations must be made. Sir Edward Mitchell clearly stated that he wished to contest the accuracy of the Limerick Case generally, and claimed the right to do so. The limitation mentioned was imposed on him contra voluntatem, not becau his general right to raise any point of law was denied, but because the matter having been so recently considered at length and determined, the Court thought it useless to reopen it generally. The two points referred to presenting special features were mad exceptions. That is the first observation. The second is this: that Mr. Gregory, who followed Sir Edward Mitchell for the respondents, did in fact cover very much more ground than wa strictly limited by the two points referred to. In effect his argument ranged over many of the aspects which were dealt with by the Court in the Limerick Case and therefore may properly and, as I think may desirably be again mentioned here as they have appeared o: reconsideration. ' (2) Appeal in Federal Jurisdiction - The Limerick Case (which - did not touch the prerogative right of appeal (4)) admittedly covers the ground of the present cases, however they are regarded. Even if, as was contended, no question arose in December as tome the limits inter se of the constitutional powers of the Common- - wealth and of a State (which I shall for brevity call a question

(1) (1924) 35 C.L.R. 69. (3) (1925) 36 C.L.R. 130. (2) (1907) 4 C.L.R. 1087. (4) (1924) 35 C.L.R,, see p. 83-

limits inter se), they are, by concession, cases of Federal juris- and to such cases the Limerick decision applies. For the mdent to succeed, therefore, the Limerick Case (1) must be to be wrong, even if on the other branch no question of

o other fatal obstacles in the way of the respondents, namely, the ope of the Order in Council itself and a question of limits inter se in December. The first of the two permitted grounds of on the Limerick Case was, as stated, the prior decision in Baater's Case (2). That is not a happy standing ground for the mdents. It is true that in that case the Court recognized that e Privy Council had decided the invalidity of par. (a) of sub-sec. 2 f sec. 39. But, in the first place, that was in relation to a matter isely identical with that before the Court - a matter in which e State Court had primarily State jurisdiction, a jurisdiction taken away and reconferred, it was said, minus one of its ittributes, namely, appeal to His Majesty in Council. The present i not a case of that character, nor was the Limerick Case. In he Limerick Case, as in this, there was no jurisdiction over the mmonwealth apart from Federal jurisdiction. That was the m why, in the Limerick Case, so much trouble was taken 0 distinguish the case of Webb v. Outrim (3). The distinction unnecessary to determine the second point in Bazter's Case, which I shall now refer. It was that, in the declared opinion four of the Justices out of five, even conceding the decision of e Privy Council to be that the enactment dealt with was invalid, his Court was bound, having regard to sec. 74 of the Constitution form and act upon its own opinion on such a question. All ve Justices held that the mere divergence of opinion actually dat in such a case afforded no valid reason for granting a cate. Bazter's Case, consequently, offers but little aid to the ents in this case. The second ground of attack, based on the Steamship Co.'s Case (4), is really without foundation. It

( ae 35 C.L.R. 69. (8) (1907) A.C. 81; 4 CLLR, 356. 1907) 4 C.L.R. 1087. (4) (1925) 36 C.L.R. 130,

Tue ComMmon- WEALTH v. Krec- LINGER & Fernav Lrp. AND BARDSLEY.

H.C. or A. overlooks two considerations. One is on the surface; the other goes _

to the root of the matter and involves the question of inter-Imperial a relations. The surface consideration is so plain that I wonder it

was ever overlooked. It was argued that in the Limerick Case (1) _ a mistaken view was held of the effect of the Colonial Laws Validity

Act, and that this was corrected in the Union Steamship Co.'s

Case (2). The suggestion was that the majority of the Court in the

earlier case thought that, if only the Constitution gave affirmative power to pass any law, that would necessarily establish inconsistency q with a prior Imperial Act dealing with the subject matter of that law and applying it to the Dominions. That is a complete misappre- hension. The view taken and acted on was indicated in the Limerick Case (3) in the words " assuming two Imperial enactments conflict, the later must prevail." The whole inquiry on this point was whether on the true construction of the Commonwealth Constitution the power given to define the Federal jurisdiction of a State Supreme Court was such as, if exercised, would be quoad hoc in conflict with the earlier Imperial Act - the Judicial Committee Act. The result of construing the Constitution was to lead the majority to th result that the later Imperial Act overrode the earlier in this respect. There will not fail to be observed the clear difference between such a subject and that dealt with in the Union Steamship Co.' Case. It is true that in each case there is an Imperial Act dealing with a matter from an Empire point of view. But still there are inherent and obvious distinctions. The first is that the shipping regulations dealt with in the Merchant Shipping Act 1894 and held to prevail concerned themselves with non-Australian ships, and the substantive rights of other parts of the Empire were _ involved. The Order in Council in question here is wholly concerned with Australian affairs, the local administration of justice. This | is a vital distinction, and is a material factor in attracting an opposite conclusion. Having disposed of those two surface grounds of attack, there remain some fundamental considerations which are brought into view by the more general arguments by which the grounds themselves were sought to be supported. To make the

(1) (1924) 35 C.L.R. 69. (2) (1925) 36 C.L.B, 130. (3) (1924) 35 C.L.R., at p. 96.

(2) (a) to the Judicial Committee Act 1844. The first step is on entirely familiar lines of jurisprudence; the second must take account of the vital processes of constitutional life and involves the

ght competently make the jurisdiction completely exclusive in the Court. It might - and perhaps, if by means of appeals under in Order in Council the object of sec. 74 could, contrary to the essed will of the Commonwealth Parliament, be frustrated, it ld be compelled to - exclude the Supreme Court entirely from all al jurisdiction. And see the Limerick Case (1). But if the jiament may completely exclude Supreme Courts by leaving s entirely from first to last in the Federal Court, why cannot the Parliament do as it has done, namely, leave Federal jurisdiction in the High Court with limited exceptions ? One of those exceptions ip to the point of judgment delivered and enforced. But if at y point a specified event happens, be it a question inter se as in . 384 or a challenge of the judgment as in sec. 39 (2) (a), the iament at once terminates the exception to the exclusiveness nd restores the cause as it then stands to the exclusive jurisdiction of the High Court, the exclusiveness of which primarily is " defined " in sub-sec. 1 of sec. 39 and limited only by what follows. To 1e"' the extent of the exclusiveness of jurisdiction is to mark ut the boundaries. Thave, with Rich J., in the Limerick Case (2), on the authority of Lord Westbury's judgment, stated that a right of appeal " is in effect \ limitation of the jurisdiction of one Court, and an extension of the

(1) (1924) 35 C.L.R., at p. 90. (2) (1924) 35 C.L.R. 69.

of reasoning clear, I approach the matter by two steps:

THe Common- WEALTH. v. Krec- LINGER & Fernav Lrp. AND BARDSLEY.

H.C. or A. jurisdiction of another" (Attorney-General v. Sillem (1) - a case

touching rules of Court, not legislation). This was referred to as "well settled" by Kennedy L.J. in National Telephone Oo. y, : Postmaster-General (2). The process is effected by the creation of a civil right on the subject, by the competent law of the territory (see the Limerick Case (3) ). The principle follows from the nature of jurisdiction, so far at least as regards the territory over which - the legislator's authority extends. Judicial jurisdiction, unless specially limited, connotes the legal power of enforcement, though the apparatus necessary for actual enforcement in the shape of - officials may be withheld by the Legislature or the Executive.

In Virginia v. West Virginia (4) White C.J., speaking for the whole Court, said "that judicial power essentially involves the right to enforce the results of its exertion is elementary." Several prior authorities are there quoted. It is in essence what Kindersley 4 V.C. said in Bond v. Bell (5). In Erskine's Institute of the Law of Scotland (edition of 1871), at p. 26, it is said: " Jurisdiction is a power conferred on a Judge or magistrate to take cognizance of and determine debatable questions according to law, and to carry his - sentences into execution." A sheriff is always held strictly to his duty in executing writs, because, as Coltman J. said for the Court in Howden v. Standish (6), "it is a disgrace to the Crown and the administration ' of justice, if the King's writs remain unexecuted." It is, therefore, an undue limitation of the word " jurisdiction " to confine it to the mere decision as to the rights of the parties. A right of appeal is a right - to intercept or prevent sooner or later the execution of the judgment by reversal or modification or other appellate order. It is, of course, quite true that the local Dominion law cannot coerce or thrust jurisdiction on any tribunal beyond the local limits of the Dominion itself, unless so authorized by clear Imperial legislative enactment. Nevertheless, appeals to the Privy Council by force of local law have long been recognized and heard by the Judicial Committee. Under Victorian law, now represented by secs. 232 to 234 of the Supreme Court Act 1915, many appeals have been permitted and

(1) (1864) 10 H.L.C. 704, at p. 720. (4) (1918) 246 U.S. 565, at p. 591.

(2) (1913) 2 K.B. 614, at p. 621. (5) (1857) 4 Drew, 157. (3) (1924) 35 C.L.R., at pp. 90-93, 109. (6) (1848) 6 C.B. 504, at p. 520.

(see Goldring v. La Banque d'Hochelaga (1) and E. W. Gillett & Co. v. Lumsden (2) ). The full significance and extent of this recognition Jam neither required nor in a position to determine. But there certainly appears to be an appreciable, if still indefinable, growth of Dominion authority with reference to the grant of appeals from the local territory to His Majesty in Council. So far as that process is material to this case, I shall refer to it, and no further. It concerns relation the Constitution, with respect to the matter in hand, ' s to the Judicial Committee Act (7 & 8 Vict. c. 69), and therefore concerns the application to this case of the Colonial Laws Validity Act 1865 (28 & 29 Vict. c. 63). The last-mentioned Act, as has so often been stated, enacts that to the extent of "repugnancy " a colonial law repugnant to an Imperial Act or order or regulation 'made under an Imperial Act shall " be and remain absolutely void and inoperative."

_ (b) Repugnancy to Judicial Committee Appeal Act and Order. - 'The word " repugnancy " was once more the subject of discussion, though I do not think its signification admits of any doubt. The word "repugnant," and its corresponding substantival form "repugnancy," are the constant expressions in English legislation its official equivalent. I have, in an earlier case, considered the word as to its origin in colonial ac uainatrs nab) and there scare at the conclusion that "inconsistency," ''repugnancy" and "contrariety " are interchangeable terms in this connection (see At -General for Queensland v. Attorney-General for the Common- wealth (3), and see also Union Steamship Co.'s Case (4) ).

_ The question then is whether the provision made by par. 2 (a) of see. 39 of the Judiciary Act is repugnant to the Judicial Committee

and in view of the discussion in this case I think it ought to be made preter clear - I repeat it is not sufficient in order to avoid pugnancy to say in every case that the Constitution taken by would authorize the local Act. There may, at the time the al Act is passed, be in existence another Imperial Act dealing

mn) (1880) 5 App. Cas. 371. (3) (1915) 20 C.L.R., at pp. 166-168. ~ (2) (1905) a. Gol. (4) (1925) 36 C.L.R. 130.

have been heard. Soin Canada under the local Code of Civil Procedure H. 0. or A.

THE Common- WEALTH v. Krec- LINGER & Fernav Lap. AND BARDSLEY.

with the subject matter and so applying to the Dominion that 4 the power contained in the Constitution must be read as subject to the provisions of the Imperial Act. If that is the case, a local statute which looks only to the affirmative power appearing in the Constitution and disregards the other Imperial Act by transgressing its limitations would be repugnant to the last-mentioned Act, and so fall within the operation of sec. 2 of the Colonial Laws Validity Act. In that case the other Imperial Act would, on the assumption made, _ if anterior, be still in force and, if posterior, be overriding, in relation to the Constitution. This position is clearly stated in McCauley v. The King (1). But that all depends on the result of the necessary preliminary - inquiry whether the other Imperial Act does or does not control the power contained in the Constitution. We must always first find the power relied on as prima facie contained in the Constitution - on its true construction: otherwise the question of repugnancy cannot arise. It would otherwise be at the very threshold simply ultra vires of the local legislature from the standpoint of the Constitution alone. Supposing either by reason of an anterior but still limiting Imperial Act or of a later limiting Imperial Act the prima facie power contained in the Constitution is less than it - appears on its own language taken alone, the local Act which exceeds the limitation is by reason of its repugnancy ultra vires, but only to the extent of the repugnancy. The opinion of Sir Rowndell Palmer and Sir Robert Collier, to which I referred at some considerable length in Attorney-General for Queensland v. Attorney-General for the Commonwealth (2) and McCawley v. The King (3), was that the - effect of repugnancy at common law was that "the subject matter of the invalid part of the legislation is wholly ultra vires." Unless separable, that would bring to naught the whole of the legislation containing the invalid part. To save this total invalidity sec. 2 of - the Colonial Laws Validity Act was-passed. The section is, to my mind, rather a saving than a destructive provision. The effect of sec. 3 in this respect has, perhaps, not been fully recognized, and the two sections must be read together. If the result of comparing two

(1) (1918) 26 C.L.R. 9, at pp. 50, 51. (2) (1915) 20 C.L.R., at p. 167. (3) (1918) 26 C.L.R. 9,

, then, whatever legislation is passed under the assumed ity of that other, but transgresses the limits to which it is uced, is necessarily ultra vires. It does not need sec. 2 of the ial Laws Validity Act to destroy it. That section really says it so far as Imperial Law is concerned the local Act (apart from e repugnant portions) may remain valid. Whether after excluding e repugnant portions the local Act operates as the will of the local ature is another question. But the converse position is Supposing on a comparison of the two Imperial Acts 1e Constitution is found on proper construction to be unaffected unlimited in the relevant respect by the Judicial Committee Act ; words, if the Constitution not only affirmatively gives the ite power but also gives it free from any limitation of the er Act, that is (as said in the Limerick Case (1)) " assuming" the "two Imperial enactments conflict,"' the later - the Constitution just prevail. have already shown that the affirmative power of limiting the jurisdiction of the Supreme Court at any point of that ion is contained in the Constitution. That in itself is, in ny opinion, sufficient to establish the dominance of the Constitution in relation to the status, so to speak, of the "cause," by which I an whether it remains a Supreme Court cause or becomes by ree of law a High Court cause. But beyond that feature, which one of verbal construction, there is another of paramount import- to Australia as a self-governing community and which has not, , received the specific weight to which it is entitled. It has, 1 conceive, tacitly influenced the practical recognition by the Judicial Committee of the grants by colonial Courts of leave to al under colonial Acts of Parliament to which I have already That feature, specifically stated, is the presence of the e of responsible government which must, in my opinion, taken into account by a Court of law in construing every modern

end, therefore, that it is the duty of this Court, as the judicial organ of the Commonwealth, to take judicial notice, in (1) (1924) 35 C.LR., at p. 96.

al enactments, whichever is first, is that one cuts down the H. ©. or A.

THe Common- WEALTH vw. Krec- LINGER & Fernau Lrp. AND BarpsLey.

H.C. or A. interpreting the Australian Constitution, of every fundamental -

constitutional doctrine existing and fully recognized at the time the Constitution was passed, and therefore to be taken as influencing the meaning in which its words were used by the Imperial Legislature. _ This Court is necessarily as well acquainted with the advance of constitutional rules and practice, which largely make constitutional law, as the rest of the community. As a living co-ordinate branch of the Government it cannot stand still and refuse in interpreting - the law to recognize the advancing frontiers of public thought and public activity, and above all of constitutional doctrines within the : Empire. I speak with special reference to the influence of the introduction of responsible government and its development in creating the now well recognized inter-Imperial status of the - great self-governing Dominions. Unless the constitutions granted by Imperial authority are to be read by the full light of responsible government, the effective development of the principle itself would be arrested and the basic purpose of the grant frustrated. The principle, however, as applied to self-governing communities within - the Empire is recent, and this is a pregnant fact in relation to the alleged repugnancy.

Responsible government applied to the colonies might almost as regards its inception be described as the product of a single day. On 14th October 1839 Lord John Russell, when Secretary of State for the Colonies, wrote a despatch to Lord Sydenham in Canada point-blank refusing to apply the doctrine of local responsible government to Canada, and in effect declaring its incompatibility with Imperial constitutional practice. Two days afterwards, 16th October 1839, he wrote another despatch to Lord Sydenham giving instructions as to the tenure of administrative heads; and this, says Mr. Mills in his work on Colonial Constitutions at p. 29, has been "regarded as the charter of 'responsible government.'"" Mr. Mills wrote in 1856, and adds : " This principle is now not only established and acknowledged in the North American provinces, but partially introduced in Jamaica, and prospectively adopted throughout the five chief colonies of the Australasian group." In 1844, when the Judicial Committee Act was passed, the doctrine was still in its infancy and had not attained any firm hold in the overseas Dominions.

'The Act was apparently the outcome of the position as disclosed in such cases as In re Cambridge (1). In 1855, when New South Wales and Victoria obtained their modern constitutions (18 & 19 Vict. chs. 54 and 55), it was novel in Australia. Lord John Russell, in his despatch dated 20th July 1855 to Governor Hotham of Victoria, spoke of " the introduction of responsible government," and referred to the Victorian Constitution as a "grant of self-government in more ample measure than has as yet been established in any colony of Great Britain." We know, and all the world knows, and we cannot in interpreting modern constitutions of the Empire ignore, the tremendous advance in status of the Dominions within the Empire even before 1900. That is only another mode of expressing the advance of local responsible government. Constitutions made, not for a single occasion, but for the continued life and progress of the community may and, indeed, must be affected in their general meaning and effect by what Lord Watson in Cooper v. Stuart (2) calls " the silent operation of constitutional principles." ' Respon- sible government," said Lord Haldane on an occasion referred to 'in the Engineers' Case (3), is " the greatest institution which exists in the Empire, and . . . pertains to every constitution established within the Empire." And it was to this Constitution that Lord Haldane was specially directing his words. It is part of the fabric on which the written words of the Constitution are superimposed. Its influence upon the actual working of the letter of local constitutions has been the acceptance of a doctrine, "amounting almost to a principle in itself, that the great self-governing Dominions are not any longer in tutelage but are constituent units of the British Commonwealth of Nations. The doctrine cannot be 'ignored in construing a recent written instrument of constitutional powers. It is now more than a high-sounding phrase or a statesman's aspiration. It is an acknowledged working thesis of the unwritten constitution of the Empire. Perhaps, since the Act 12 Geo. V. c. 4, the Irish Free State (Agreement) Act, and in view of the terms of the first and fourth articles of the agreement which by Imperial law is given " the force of law," it would be more correct to say that the (1) (1841) 3 Moo. P.C.0. 175. (2) (1889) 14 App. Cas. 286, at p. 293. (3) (1920) 28 C.LLR., at p. 147.

• Constitution of the Empire is now so far written. That Act may, in

my opinion, be judicially said to have placed the seal of for legal recognition on the actual character which the separate written constitutions of the great self-governing Dominions by force of general constitutional development already possessed. It is a conscious step in the legal evolution of the Empire. Taking those great and commanding principles in hand and applying them to the interpretation of the Australian Constitution, I cannot doubt that it is well within the power of the Australian Parliament, notwithstanding any existing Imperial legislation prior to the Constitution, when investing a State Supreme Court with Federal jurisdiction so to limit that investiture as to direct the stream judicial power at any given point into the High Court. Whate' subsequent course that stream may take depends in that case secs, 73 and 74 of the Constitution and on any step by certificate or legislation which may follow by authority of those sections. In relation to the present matter the Australian Constitution is not subordinate to, but is pro tanto superior to, the earlier Act, the Judicial Committee Act, passed at an earlier stage of constitution development. The significance of that fact is apprehended when it is remembered that the Order in Council is an Executive act to which statutory force is given by the Act under which it is made, But it is an Executive act on the advice of Imperial Ministers responsible only to the Imperial Parliament and yet controlling the civil rights of Australian citizens in Australia to appeal on (assumedly) Federal questions. Though the Order in Council is, for purposes of repugnancy to colonial Acts and consequent invalidity, placed on - the same footing as the Act under which it is made, yet it is not on the same footing for all purposes. It is not, for instance, in the same position as the direct regulative provisions of Parliament in the Merchant Shipping Act 1894. It needs the intermediate operation of responsible administration ; and when that is a factor, it may | entirely alter the emphasis to be placed on the later instrument of self-government. That instrument in this case must, in my opinion, be read as modifying the earlier enactment, at least to the extent of leaving the will of the Australian national Parliament on the subject of civil rights in Australia, in relation to Federal matters specifically

ated in the Constitution, free from the control of Imperial H. ©. or A. 'ial discretion. For that reason, even if it were the only ie n, the Colonial Laws Validity Act has no application to this case. Tue it, as already indicated, there are other reasons pertinent to this paket nch of the case. They are the scope of the Order in Council a , and the inter se question that arose in December.

4 (c) The Order in Council. - At p. 105 of the report of the Limerick

se (1) it is said: " The ambit of the Order in Council of 1909 Baxpsiey.

s not extend to embrace Federal jurisdiction." In the judgment to, it was made as clear as possible that the Colonial Office inion, for reasons given, was that the Orders in Council applied h to Federal and State jurisdiction. Nevertheless, the construction

pter relating to an Imperial Court of Appeal. This Order in il recited : "' Whereas the Colony of Victoria is now a State of he Commonwealth of Australia" &c. That implies, primarily at ll events, that Victoria is being legislated for as that political called a State. In other words, it is " Victoria" that is dominant feature as the particular and distinct self-governing nmunity under consideration. Comparison with the former in Council of June 1860 will make this conspicuously clear. :is " Victoria" apart from New South Wales and other Australian ates, and not in conjunction with the other States, for which ellate rules are about to be made. Then comes the passage I regard as the governing operative clause of the Order in neil to which subsequent words, however wide, must be referred. 'is as follows : " It is hereby ordered by the King's Most Excellent

• Majesty, by and with the advice of His Privy Council, . . . aie

the Rules hereunder set out shall regulate all appeals to His Majesty in Council from the said State of Victoria." Subsequently - we find numbered rules; but they are all of them "the Rules" referred to in the governing operative provision quoted. Some of those Rules, I venture to say, if inclusive of Federal jurisdiction are :

inconsistent with adherence to sec. 74 of the Constitution, except perhaps in the barest form of literalism: for instance, the concluding words of rule 2 conferring on the Supreme Court discretion to allow an appeal to His Majesty in Council in any matter which, not reachi the standard set in the first paragraph of the rule, is such as in the opinion of the Court, "by reason of its great general or public importance or otherwise, ought to be submitted to His Majesty in Council for decision." I am of opinion that those words are not intended to enable the Supreme Court to send on for appeal to the Privy Council a case in Federal jurisdiction in which the Supreme Court has followed a prior decision of the High Court as to the constitutional powers inter se of the Commonwealth and the State. That would be giving the rule a subterranean effect which I decline to attribute to it. But if not, the consequence is that Federal jurisdiction is not within its ambit. Then as to rule 6. That rule seems to me altogether inconsistent with Federal jurisdiction. For instance, suppose in this case the judgment of Cussen J. and the Full Court in November were that the Commonwealth should pay £1,000,000 or some other sum out of the Treasury; I cannot think - that the Order in Council meant that the Supreme Court and no other tribunal in Australia was empowered by Imperial authority to enforce execution, even though a constitutional question were the test, leaving ultimate restitution in case of reversal to be secured as the Supreme Court thought expedient. As the highest State judicial organ, that can well be understood ; but as the judicial agent of the Commonwealth subject to appeal to the highest Common- wealth Court, it is beyond my comprehension. Rules 11, 12, 18 and 24 contemplate the record and case being printed either in England or in Victoria. The Commonwealth Government, if the appellant, could not consistently with the Order in Council have

the record printed in Canberra or Sydney. Why not, if Federal

cases are included? And particularly when, as in Nova Scotia (Order in Council, 5th July 1911), Alberta (Order in Council of 10th January 1910, rr. 10 and 11, 12, and 13), British Columbia (Order in Council of 23rd January 1911), Manitoba (Order in Council of '98th November 1910) and New Brunswick (Order in Council of

'th November 1910), the record may be printed in England or F . In truth, one cannot fail to see in sec. 73 of the Constitution

i is, one created by the Parliament) and a "' Court exercising jurisdiction " (that is, any State Court invested or acting as

ition to these the High Court is a Federal Court of Appeal. en "the Supreme Court of any State" to which, in my view, s I shall later more particularly show, the Order in Council applies, is the highest State Court as such exercising State jurisdiction and 'in relation to which the High Court is an appellate Court in a it, that is, non-Federal, character. For these reasons, as as for others stated in the Limerick Case (1), relevant to this branch of the subject, particularly at pp. 104-105, I hold that e Order in Council is extraneous to the cause with which we are That in itself would be a sufficient reason to allow the ippeal, since it leaves the order under appeal without foundation. _ (d) Inter se Question in December. - I assume, contrary to my , that the question in November was not one of an inter se ature, but merely one of general Federal jurisdiction. That is to say, that the exclusion of State jurisdiction is accompanied by a

al law. As the Commonwealth Jaw stands at present, that estion would be within the Federal jurisdiction of the Supreme to entertain and determine, subject to whatever right of

THE Common- WEALTH v. Krec- LINGER & Fernav Lrp. AND Barpstey.

H.C. or A. appeal to the Privy Council or to this Court that might lawfully 1926. exist. The Court in December would, in that view, have had before

Tus it an existing Supreme Court cause with an existing Supreme Court

COMMON: judgment lawfully pronounced, that is, with jurisdiction to pronounce

WEALTH Kana: it, whether erroneous for any reason or not.

Pacaseore Then, what was the nature of the question that presented itself

Lrp. - in December when learned counsel for the Commonwealth objected

B. aaeeien to an order for leave to appeal to the Privy Council on the ground

Isang, that sec. 39 (2) (a) of the Commonwealth Judiciary Act excluded it?

If we limit our vision to conflict of rival legislative powers, it is at once evident that in this case sec. 38a of the Judiciary Act would - not apply. This, for the reason that no legislative power of the State came into the arena, since the Supreme Court was proceeding solely under the Imperial Order in Council. But so to limit our vision is to contract it. Sec. 38a, like sec. 74 of the Constitution that it is enacted to serve, is not limited to the legislative powers of any of the political organisms - Commonwealth and States - therein mentioned. The " powers" are all or any of the powers of the political organism functioning in any of its governmental capacities. Theoretically it is His Majesty the King acting in any of his great ; capacities - as legislator, administrator or judge - and in each - capacity by his appropriate constitutional agent. The constitutional powers of the State mean only the constitutional authority of the King in right of the State to act in any of those capacities. Sec. 74 of the Constitution of Australia says nothing as to the immediate source of the contested power; it is the existence of the power that is material. That depends on a survey of all relevant constitutional law, which, as stated in Halsbury's Laws of England, vol. vi., pat. 454, "may be said to embrace all rules which directly or indirectly affect the distribution or exercise of the sovereign power in the State, and the relations which the component parts of the sovereign power bear toward each other and to the subject." This point was really at the root of McCawley's Case (1), and was explicitly dealt with by Rich J. and myself at pp. 52 and 53 of the earlier report, to which I refer without repeating. One of the suggested competing constitutional rules is that created by the Order in Council. A very

(1) (1918) 26 C.L.R. 9; (1920) A.C. 691; 28 C.L.R. 106.

America Act 1867 (30 & 31 Vict. c. 3), sec. 64, stating (inter alia)

• that " the Constitution of the Executive Authorityin . . . Nova Scotia . . . shall, subject to the provisions of this Act, continue as jt exists at the Union until altered under the authority of this Act." Now, as pointed out in Clement on the Canadian Constitution, Ast ed., at p. 40, the Constitution of Nova Scotia consisted then of 'nothing but Royal Commissions and Instructions (and see 2nd ed., _p.2). The King's power in Victoria of granting by his Supreme urt of Victoria to his Victorian subjects leave to appeal to himself in Privy Council is a power to act judicially in right of his State of Victoria, and is properly called in law a constitutional power of that State. It is part of the law of the land relative to 'the subject matter. If it is not: part of the constitutional power of the State, neither is the King's power by his High Court of Australia to do the same thing by certificate under sec. 74 of the Australian Constitution a constitutional power of the Commonwealth. There 'can be no distinction in this respect between judicial power and legislative power. Therefore the legislative aspect does not exhaust 'the situation, and the matter cannot be disposed of summarily by saying: "It is a contest between the Imperial Act sustaining the Order in Council on the one hand and the Commonwealth Act 'denying the efficacy of the Order in Council on the other; therefore there is no Australian question inter se." There was a distinct question inter se. The objection taken in December was that the Supreme Court, that is, the judicial organ of the State, has no power 'in face of the Commonwealth legislation to make such an order. There was a question of conflict whether one power of the State, namely, its judicial power, or one power of the Commonwealth, "namely, its legislative power, should prevail. The contest was which of these two Australian powers of the Crown - the State judiciary power or the Commonwealth parliamentary power - 'dominated in the case before the Court. This was clearly indicated in the Limerick Case (1) (and see Pirrie v. McFarlane (2) ). It is _ nothing to the point to say an Imperial Act was behind the State

(1) (1924) 35 C.L.R., at p. 102, last 8 lines. (2) (1925) 36 C.L.R., at pp. 194-195,

jnstructive illustration of the concept is found in the British North H.C. or A.

H.C. or A. Court. So is there an Imperial Act behind the Commonwealth

legislation. Imperial Acts stand mediately or immediately behind - every governmental function in Australia. We have to get closer - to the matter than that ; and it comes down at last to power of the

State as Judge (by virtue, no doubt, of Imperial legislation) as opposed to the power of the Commonwealth as legislator (by virtue ; also of Imperial legislation). Otherwise it is always a conflict between Imperial Acts; for it is not consistent to regard the Commonwealth's legislative capacity as one competitive factor, regardless of the Imperial authority behind it, and to ignore the - State's judicial capacity and look only to the Imperial authority behind it. To do that would form an easy way through sec. 74 of : the Constitution. In my opinion, therefore, the moment there a arose in December the question inter se, the "' matter," that is, the : whole controversy between the parties, took on the character described in sec. 38a, and with the consequences provided by that section and sec. 40a. These sections I shall presently more closely deal with. The cause as it then stood was removed into this Court, not for the purpose of exercising any of the powers of the Supreme Court under the Order in Council, but for the purpose of determining whether sec. 39 (2) (a) was operative or not in insisting that no appeal lay except to this Court. If yes, then the application must be dismissed as incompetent. If no, then " the cause" could be fairly said to be one that should be remitted to the Supreme Court to be dealt with. I have said so much in deference to Mr. Gregory's very earnest argument as to the applicability of sec. 384 to the case, in view of the language of sec. 40. That consideration again suffices to end the matter. There are other reasons for this conclusion; and, so far as I am concerned, they are to be found generally in the judgment of Rich J. and myself in the Limerick Case (1). That brings me to the second branch of the case in which, as stated, I am in entire accord with the Chief : 4 Justice. (3) Secs. 38a and 40a. - The validity of these sections is not - disputed, and is, indeed, indisputable. They are an exercise of the legislative power conferred by sec. 77 (1.) and sec. 51 (xxx1x.) of the © (1) (1924) 35 O.L.R. 69. ¥

ition (see Hx parte Walsh and Johnson (1)). Sec. 38a marks, 'as the terminus ad quem of the jurisdiction of the Supreme Court of a e to entertain any matter, the moment it involves " any question, ver arising, as to the limits inter se of the constitutional powers ; ofthe Commonwealth and those of any State" &c. In such a matter the section prescribes the High Court shall have exclusive jurisdiction and the Supreme Court shall have no jurisdiction "to entertain or "determine " any such matter, either originally or on appeal. Then see, 40a, consequentially and proprio vigore, removes the matter cause') instantly into this Court, where in contemplation of law it awaits determination. The physical act of transmitting the edings from the Court where the cause previously was to the where it henceforth is, unless remitted under sec. 42, is a mere land administrative act, and is not an essential factor 'in the loss or acquisition of jurisdiction. If, therefore, before the tion in December for leave to appeal under the Order in il, the cause had already, by force of secs. 38a and 40a, been removed "' from the Supreme Court to this Court, it is manifest it the order of December was an order based on nothing, there ing no such cause in the Supreme Court. Further, if that removal took place, not only before the application in December, but also e the pronouncement of the judgment of November, it follows ally that that judgment was based on a non-existent proceeding

_ The reasons of the majority (Irvine C.J. and Mann J.) make it that a question of conflict of powers necessarily arose in the as soon as sub-sec. 2 (a) of sec. 39 was construed as intending to prevent an appeal to the Full Court of Victoria from the decision f Cussen J. sitting in original jurisdiction. The position cannot be ed more clearly than in the following words of Mann J. (2):

It would appear therefore that in any matter falling within the g words of sec. 39 (1) the right of appeal from a single Judge 'this Court to the Full Court is taken away by sub-sec. 2 (a), and

(1) (1925) 37 C.L.R. 36. (2) (1925) 47 A.L.T., at p. 187.

THE Common- WEALTH v. Karec- LINGER & Fernav Lr. AND BARDSLEY.

• that we have perforce to consider the question of the validity of sec. 39

q in the light of the decisions of two Courts of binding authority."

Their Honors then did consider that question, and determined it : on their own independent view of what the earlier case, namely, Webb v. Outrim (1), actually decided. In so doing, there are some observations which seem to regard what I said in the Limerick

Case (2) as supporting an obligation to do so. I desire to clear - this up. Nothing was further from my intention, and when my words are examined I do not think they can bear that interpretation. The Privy Council case had been previously examined by this Court, but, not having been so precisely passed upon as to govern the case - then before us, the judgment, I thought, had to speak for itself. : There was no question of our choosing between two Courts of - binding authority in relation to this Court. If, for instance, this

case had arisen in the Supreme Court of New South Wales instead : of the Supreme Court of Victoria, there is nothing either in my words or in the nature of the case which would have supported the view that the Supreme Court of New South Wales could have considered the matter afresh for itself so as in effect to overrule the previous decision of this Court. And what is true of one State Court is true of all State Courts. As well might a County Court of Victoria ora - District Court of New South Wales apply its own mind to determine whether, in a case exactly in point, the Supreme Court of the State was right or wrong in its previous determination as to the scope and effect of a prior judgment of the Privy Council or of this Court in State jurisdiction. If the matter had fallen within the jurisdiction of the Supreme Court to decide the constitutional question, I entertain no doubt that the simple duty of the Supreme Court - and this is in accordance with the opinion of Macfarlan J. - was to follow the deliberate and considered judgment of this Court in the Limerick Case. But the position having arisen, as I have stated, the moment the necessity for deciding the validity of sec. 39 (2) (a) arose, the matter involved a question as to the limits inter se of the Commonwealth and the State of Victoria. That a constitutional question in Federal jurisdiction arose no one can reasonably deny.

(1) (1907) A.C. 81; 4 C.L.R. 356. (2) (1924) 35 C.LR., at p. 93.

predicated. Some difference of opinion may arise as to that giving _ rise to the first problem stated earlier. But the reason I think the question is of the inter se nature is this: - Under the Victorian "Supreme Court Act 1915, sec. 38, the general jurisdiction of a single _ Judge to hear causes is "subjectto appeal . . . tothe FullCourt." "Sec. 39 (2) of the Judiciary Act proceeds to confer Federal jurisdiction on State Courts including the Supreme Court in terms which include appellate jurisdiction as in State matters if not otherwise excluded. On the construction of sub-sec. 2 (a) adopted by the Supreme Court the appellate jurisdiction under sec. 38 of the State Act is excluded. 'Then arose the question of validity of sub-sec. 2 (a) - which, for this "purpose, may be put in the form stated at the beginning of this judgment. That was the question as it appears to have presented If to the Supreme Court also, and, in my opinion, it was a question of the nature required by sec. 38a. In the result, the cause instantly tood removed to this Court prior to the judgment of November and here was no jurisdiction to further entertain it and none to determine

uurt was " bound to hold its hand," and ¢o instanti sec. 40a operated nd removed the cause to this Court. The order of December was uently in respect of a non-existent cause so far as the Supreme was concerned. The inapplicability of the Order in Council o such a state of affairs will be even more fully appreciated when, or instance, rules 6 and 27 of the Order in Council are read. The ecision in the Limerick Case (3) was, in my opinion on reconsideration, correct one.

'The result is that, from whichever of the two aspects the case is ed, the appeal should be allowed, and the proper order is that h has already been pronounced. It is scarcely necessary to that, if the substantive appeal from Cussen J. be proceeded h before this Court, the construction given by the Full Court of toria to par. (a) of sub-sec. 2 of sec. 39, as to the application of "Parkin v. James (4) to that paragraph, will be open for consideration.

7 (1) (1823) Turn, & R. 209, at p. 219. (3) (1924) 35 C.L.R. 69. (2) (1874) LR. 5 PAC. 417, at p. 444. (4) (1905) 2 C.L.R. 315.

'In my opinion also, it was a constitutional question of the nature H.C. or A-

"~~ THE Common- WEALTH v. Krec- LINGER & Fernav Lrp.

THE ComMon- WRALTH v. Kree- LINGER & Fernau Lrp. AND

Hicers J. In each of these appeals an order which satisfies the majority of the Court has been already pronounced; but the - reasons have been postponed. It is my unpleasant duty to express dissent from the order. ©

Each appeal is against an order of the Full Supreme Court of Victoria, 4th December 1925, which gave leave to the plaintiff to appeal to the Privy Council in pursuance of the Order of His Majesty in Council, 23rd January 1911. No appeal has been brought against any previous judgment or order of the Supreme Court - for any previous judgment or order was in favour of the appellant; yet, under the form of order pronounced by this Court, it is, on the one hand, declared that a previous order of the Full Supreme Court, 12th November 1925, dismissing an appeal from the judgment of Cussen J. as trial Judge, was made without jurisdiction ; and, on the other hand, the order giving leave to the plaintiffs to appeal to the Privy Council from the order, so made without jurisdiction, is " discharged." I confess that I cannot understand how this Cow has even jurisdiction to make such an order as pronounced. d

But this point has not been argued; and, putting it aside, I propose to examine the ground on which it is alleged that the order iN of the Full Court dismissing the appeal from Cussen J. was made - without jurisdiction. The ground is that the decision of this appeal involved a question as to the limits inter se of the constitutional powers of the Commonwealth and of the State of Victoria; then, - under sec. 384 of the Judiciary Act 1903-1920, the Full Supreme Court had no jurisdiction to entertain the appeal; that under sec. 40a the appeal forthwith stood removed to the High Court; and that therefore the Full Supreme Court made its order as to a cause which was not before it.

In my opinion, the decision of the appeal from Cussen J. to the Full Court did not involve, either logically or actually, any question as to the limits inter se of the constitutional powers of the Common- wealth and of the State. It is true that there was involved a question as to the powers of the Commonwealth Parliament under the Constitution Act - the question whether sec. 39 (2) (a) of the Judiciary Act was valid. But such a question is radically different from the kind of question referred to in sec. 38a (following sec. 74

of the Constitution). It seems to me that the full force of the words "Jimits inter se" and " constitutional" has been overlooked.

The position is that in 1903, by the Judiciary Act, the several s of the States were invested with Federal jurisdiction within the limits of their several jurisdictions," but subject to this condition or restriction (sec. 39 (2) (a)): "'(a) Every decision of the eme Court of a State . . . shall be final and conclusive

hat time, 1903, questions as to limits inter se were included in the nt of Federal jurisdiction to the State Courts; but in 1907, in quence of the decision of the Privy Council in Webb v. Outrim ), sec. 384 was inserted, which deprived the State Courts of juris- 'ion over matters involving questions as to limits inter se. Afterwards, in 1911, an Order in Council was made by the King, following the decision in Webb v. Outrim, and providing, as to oria, that " an appeal shall lie as of right from any final judgment

yppeal amounts to or is of the value of £500 sterling or upwards." n the appeal to the Full Supreme Court from Cussen J., one side that sec. 39 (2) (a) was valid; and the other side urged that

to the validity of the Supreme Court Act 1915 (of Victoria), which, by sees. 30 and 38, allows a single Judge to decide an action subject an appeal to the Full Court. One side urged that under the ower in sec. 77 (111.) of the Constitution for the Federal Parliament "invest any Court of a State with Federal jurisdiction" there as power to divest the Full Supreme Court and to divest the ivy Council of right to entertain an appeal from a Court of the ; the other side urged that the power to invest a Court of e State with Federal jurisdiction was confined to matters internal to the State Court - that it did not extend to the jurisdiction of

~ THE Common- WEALTH v. Krec- LINGER & FERNAU Lop. AND Banpsiey.

• legislation ; but it is said that the powers of "the State as judge" are in conflict with the powers of the Commonwealth as legislator, T must say, first of all, that I cannot recognize the propriety of the expression "the State as judge ' - the State has not the function of judging any more than the Commonwealth has the function of arbitrating (under sec. 51 (xxxv.) of the Constitution). The State has the power of appointing officers to be the King's Judges in the State, to fulfil the King's judicial functions for his subjects. But, apart from this, even if it be conceded that " constitutional powers "

are not confined to legislative powers, the power of the Full Supreme Court to entertain an appeal from a single Judge is not a constitutional' power of the State; nor is the power of the Supreme Court to grant leave to appeal from its own judgment to the Privy Council, in pursuance of the Act 7 & 8 Vict. c. 69 and the Order in Council thereunder, a constitutional power of the State. It is a power

granted to the Supreme Court, not under the State Constitution, - but by the King and the Imperial Parliament. As regards appeals | to the Full Supreme Court, the power of the State Parliament to enact secs. 30 and 38 of the Supreme Court Act 1915 was not impugned by anyone; nor is it impugned now. This is simply a case of a Federal Act being attacked as being ultra vires.

Sec. 74 of the Constitution, from which the words used in sec. 38a of the Judiciary Act are taken, is, so far as I know, unique in

Constitutions, and must be strictly construed because it reduces the power of the King. It bears the impress of a diplomatic formula devised to disguise a failure to reach a true agreement. It occurs in a British Act creating a Federation - a Federation in which the legislative and other constitutional powers over Australia were to be divided between the States on one side and the Commonwealth on the other. The Commonwealth was to have certain express powers of legislation (secs. 51, 52, 122, &c.), and the States were to have the residuary powers ; and Commonwealth as well as States.

were to have corresponding powers as to the Executive and Judiciary (secs. 61, 71). Then, under sec. 74, decisions of the High Court as to the boundaries of these powers, their relative limits, were not to be subjected to appeals from the High Court to the distant Privy Council (unless the High Court gave leave). But sec. 74 does not.

of the Commonwealth under the Imperial Act, or as to the limits of the constitutional powers of the Commonwealth as between it and the Imperial Parliament. 'The Imperial Parliament, through its Act and the Order in Council ereunder, says that there may be an appeal (to the Privy Council ) ; the Federal Parliament says that there may not : can it be reasonably said that a question is involved as to the limits inter se of the constitutional powers of the State and the Commonwealth? Surely we ought not, without very express words, to treat sec. 74 of the Constitution as making the High Court the final exponent of the relations between an Imperial Act and a Commonwealth Act. _ The fact is that on the appeal to the Full Supreme Court from the judgment of Cussen J. there were no rival claims of the State 'and of the Commonwealth as to the possession of any constitutional power (I do not say that for the application of sec. 38a the State bea party to the cause). There was a claim that the Common- wealth Parliament has power to take away a litigant's right to ippeal to the Full Supreme Court or to the Privy Council; and 'this claim was denied: that is all. The fact that the conflict was as to the Commonwealth legislative powers in relation to a State Court does not bring the conflict within the meaning of sec. 74 of the Constitution ; and yet this fact is the cause of the confusion. A proper infer se question arose in the Steel Rail Case (Attorney- (feneral for New South Wales v. Collector of Customs for New South Wales (1) ), where the power of the State to make and execute laws _for railways came into conflict with the power of the Commonwealth _ to impose duties of Customs; and the Judicial Committee of the Privy Council obeyed sec. 74. An inter se question was also found to arise in Jones v. Commonwealth Court of Conciliation and Arbitration (2), where the State had power to legislate as to labour, and the Commonwealth had a power also - indirectly, through the Court of Conciliation; and sec. 74 was obeyed. But in each case _ the relative powers of State and Federation were in question.

• Certainly, the learned Judges of the Supreme Court, in deciding the appeal from Cussen J., were not conscious that they were, or (1) (1909) A.C. 345. (2) (1917) A.C. 528; 24 C.L.R. 396.

ily to mere questions as to the limits of the constitutional powers H- ©: or A.

THE ComMon- 'WEALTH v Krec- LINGER & Fernau Lrp. AND Barpsiey.

~~ THE ComMon- WEALTH vw Krue- LINGER & Fernau Lrp. AND

might be, treading on the sacred, forbidden, territory of sec. 38a, In particular, Irvine C.J. spoke of the matter as being a matter within sec. 39 and not within sec. 38a. No one suggested, from Bar or from Bench, that a question as to the limits infer se was involved. Sec. 384 is so unprecedented that I do not like to pronounce confidently as to its effect - without argument thereon ; but at present I am strongly inclined to think that the question as to the limits inter se must actually arise - must at least be mentioned - in order that sec. 384 may be applicable. The words "however arising" attached to the word " question" surely imply that the question must somehow arise. If it does not arise, there is no danger of wrong law being laid down as to it. If, however, the section means merely that the question must logically arise, one cannot but foresee confusion and injustice in the future years. A judgment may be pronounced in 1910, in innocent ignorance of any inter se question; on the strength of that judgment titles pass to successive purchasers ; but in 1960 some ingenious la may discover that there was some inter se question logically invol in the judgment of 1910: is that judgment to be treated as havi been made without jurisdiction, and nugatory ?

Several difficult points were raised before us in the argument, - and I had drawn up a judgment dealing with them, to the best of my power. On finding, however, that my learned brethren

pronounced the order on the single point of sec. 38a, I have with- drawn that judgment. The points have become unnecessary to the decision now that the order has been made on the single ground of sec. 38a; and I do not want to add to the bulk of the law reports _ by my obiter dicta. I had something to say, in particular, as to previous judgments of this Court in Baater v. Commissioners of - Tasation (N.S.W.) (1); Lorenzo v. Carey (2); Commonwealth v. Limerick Steamship Co. (3); Union Steamship Co. of New Zealand 3 v. Commonwealth (4). But none of these cases lay down the meaning - of sec. 74 of the Constitution, and of sec. 384 of the Act, for the

purposes of this case. In the Limerick Case 1 observe that : counsel for the appellant argued that the judgment of the New - :

(1) (1907) 4 C.L.R. 1087. (3) (1924) 35 CLR. 69. q (2) (1921) 29 C.L.R. 243, (4) (1925) 36 C.L.R. 130. '

sinority of the Bench held that there was no inter se question ; nd the majority did not rely on the point, did not express any clusion on the subject. It is, therefore, impossible, to my mind, to regard this case as concluded by the decision in the Limerick

ut I must not forbear from calling attention to the embarrassing ition in which I was placed as to these previous cases. My her Powers and myself were the only members of the Court did not sit at the hearing of the Limerick Case (1) ; and counsel the plaintiffs here expressed a wish, as that case was a decision f three Judges as against two, and as the Full Bench of seven was itting, that he should be allowed to attempt to show that the sion was wrong ; but his request was refused. He was allowed, er, to argue that the Limerick Case was inconsistent with ter's Case (2) and with the Union Steamship Co.'s Case (3).

has not been impugned ; but what is his duty when it has n allowed to be partly impugned? Is he bound by the limitation upon counsel? I postpone a definitive conclusion until it ome absolutely necessary.

Ricu J. In this case we have been asked to reverse our decision in Commonwealth v. Limerick Steamship Co. (1), for reasons

The Limerick Case dealt with many propositions. Down to a n point it was unchallenged on this appeal - I mean that. established the appealability to this Court of an order of the me Court of a State granting leave to appeal to the Privy il. How such a question should be decided by this Court s also determined in that case, but that is a separate and distinct osition, and it is only from that point we have been asked to ew the case. As to that, this case has been argued from two nts of view, namely, as raising inter se questions and as raising

(1) (1924) 35 C.L.R. 69. (2) (1907) 4 C.L.R. 1087. (8) (1925) 36 C.L.R. 130.

outh Wales Supreme Court involved an inter se question. The H. ©. or A.

THE 'ComMon- WEALTH » Krec- LINGER & Fernavu Lrp. AND Barpsiey.

Federal questions not inter se. I agree that this case is really of an inter se complexion both as regards the principal judgment of the Supreme Court of Victoria when Irvine C.J. presided and the later judgment of that Court giving leave to appeal when Oussen J. presided. I agree, therefore, that before the cause reached the latter tribunal it was removed to this Court and still remains in this Court pursuant to sec. 40a of the Judiciary Act. The argument founded on the two cases mentioned is therefore irrelevant; but, as I was a party to the majority judgment in the Limerick Case (1), ; I wish to be understood as adhering definitely to that decision in its entirety. I do not think that either Bazter's Case (2) or the Union Steamship Co.'s Case (3) is in any way inconsistent with | what was said in the Limerick Case. I adhere to the reasons I there gave, and agree with the further reasons now stated in the judgment of my brother Isaces.

Srarke J. These cases raise again the constitutional validity 0 the provisions of sec. 39, sub-sec. 2 (a), of the Judiciary Act. In Limerick and Kidman Cases (1), a majority of this Court upheld their validity, and endeavoured to expound the true basis of the 4 decision of the Judicial Committee in Webb v. Outrim (4). But the Supreme Court of Victoria, in Full Court, presided over by its learned Chief Justice, refused to accept the view of this Court, and insisted upon acting on its own view of the decision in Webb v. Outrim. Maefarlan J., though differing from the view of the majority of this Court, said - wisely, I think - that it would only "make the present confusion worse confounded" if the Supreme - Court declined to follow the decision of this Court (5). And I would add that the course pursued tends to impede the orderly adminis- tration of justice. The result has been unfortunate; for, in the opinion of a majority of this Court, the Supreme Court entered upon a matter which it had no jurisdiction to determine, and its final judgment in the proceedings before it, is therefore null and void. But in the Supreme Court the judgment was necessarily -

(2) (1907) 4 C.L.R. 1087. (4) (1907) A.C. 81; 4 C.LR. 356. (5) (1925) 47 A.L.T., at p. 190.

d as binding and effective by other members of the Court, ad upon an application for leave to appeal to His Majesty in il, another Court - presided over by Cussen J. - following the gment, granted leave to appeal as of right. It is from this order an appeal has been brought to this Court. The judgment ed by the Court presided over by the learned Chief Justice as not been appealed to this Court, and I do not feel called upon discuss its validity. It is enough for me to say that the order leave to appeal to His Majesty in Council is directly contrary the decision of this Court in the Limerick and Kidman Cases (1), should consequently be reversed.

: recognize, with unfeigned respect, the force of the criticisms of se cases by the learned Judges of the Supreme Court, but all re presented to this Court when the cases were argued before it. e constitutional tribunal for the review of the Limerick and Cases (1) is His Majesty in Council - always, of course, vithin the limits prescribed by sec. 74 of the Constitution.

Order as stated in judgment of Knox O.J., Gavan Duffy and Powers JJ.

Solicitors for the appellants, Gordon H. Castle, Crown Solicitor for ie Commonwealth ; Blake & Riggall; Whiting & Byrne; Aitken, er & Strachan.

Solicitors for the respondents, A. Robinson & Co. B.L. (1) (1924) 35 C.L.R. 69.