Dalgarno v Hannah

Case information
Dalgarno Defendant, Appellant; and Hannah Plaintiff, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

11 November 1903

Griffith, C.J., Barton and O'Connor, JJ.

Dr. Sly (with him Ferguson and Clines), for the plaintiff in support of the motion.

Wise K.C., A.G. for N.S.W. (with him Pilcher K.C., and Garland) for the defendant.

Dr. Sly in reply.

Attorney for plaintiff, respondent, J. B. Frawley.

Attorneys for defendant, appellant, Macnamara & Smith.

On 11th November the judgment of the Court was delivered by Griffith, C.J.

Griffith, C.J.

Barton and O'Connor, JJ.

Decision
This is an action against the Commonwealth for a wrong alleged to have been done to the plaintiff by persons for whose actions the Commonwealth is responsible. It was brought in the Supreme Court of New South Wales against the defendant as nominal defendant, under the provisions of the Claims against the Commonwealth Act 1902 (No. 21 of 1902), by which (sec. 6) the Supreme Court of each State is invested with federal jurisdiction for the purpose of hearing and determining actions brought under the Act. The section proceeds to declare that the Court "shall have that jurisdiction as a Court invested with federal jurisdiction and not otherwise." Apart from this Act, the Supreme Court of New South Wales had no jurisdiction to entertain an action against the Commonwealth, unless the Commonwealth had voluntarily submitted to its jurisdiction, which is not suggested. It follows that in entertaining the action the Court was not exercising any jurisdiction which it had under the laws of New South Wales, but was exercising a new jurisdiction conferred upon it by the laws of the Commonwealth. At the trial the plaintiff obtained a verdict for £200 damages. A Rule Nisi for a New Trial was granted by the Full Court, which, after argument, was discharged on 20th August, five days before the Judiciary Act received the Royal assent. On 15th October this Court, on the ex parte application of the defendant, granted special leave to appeal. Motion is now made by the plaintiff to rescind the order for leave on the grounds: (1) that the Court has no jurisdiction to entertain the appeal, the judgment having been given before the passing of the Judiciary Act, and the case not falling within any of the cases enumerated in the first paragraph of sec. 35 of that Act as cases in which appeals may be brought from judgments given before the passing of the Act; and (2) that the nature of the case is not such as to justify the grant of special leave, even if the Court has jurisdiction to entertain the matter.

With regard to the second ground, we think that the rule to be applied by the High Court in dealing with applications for special leave to appeal in cases below the appealable amount should be substantially that laid down by the Judicial Committee of the Privy Council in the case of Prince v. Gagnon (8 A.C. 103, at p. 105). "Their Lordships are not prepared to advise Her Majesty to exercise her prerogative by admitting an appeal to Her Majesty in Council from the Supreme Court of the Dominion, save where the case is of gravity involving matter of public interest, or some important question of law, or affecting property of considerable amount, or where the case is otherwise of some public importance or of a very substantial character."

The argument in support of the first ground was based on the assumption that the right of appeal by leave of the Court, in cases involving less than the amount made appealable by the Orders in Council, was created by sec. 35 of the Judiciary Act. On that assumption it was contended that at the time when the judgment sought to be appealed from was pronounced, no right of appeal to any tribunal existed, that the plaintiff had, therefore, a vested right to retain his judgment (subject only to the prerogative of the King to grant leave to appeal), and that the Judiciary Act did not operate retrospectively to impair that right. For this contention, if the right of appeal by leave from judgments involving less than the appealable amount is created by the Judiciary Act, the cases of Hughes v. Lumley (24 L.J.Q.B. 29), and Vansittart v. Taylor (ib., 198), afford abundant authority, if authority were needed. In answer to the motion it was contended that the right of appeal asserted was not created by the Judiciary Act, but by the Constitution, and extends to all judgments falling within the provisions of sec. 73, whether pronounced before or after the passing of the Judiciary Act, and that that Act does not take it away. Sec 71 of the Constitution provides that the judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal Courts as the Parliament creates, and in such other Courts as it invests with federal jurisdiction. We pause to repeat that in the present case, as already pointed out, the Supreme Court of New South Wales was exercising the judicial power of the Commonwealth as a Court invested with federal jurisdiction. The section goes on to say that the High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes. Section 73 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, or of the Supreme Court of a State." Then follow two paragraphs, the first of which limits the power of the Parliament to prescribe exceptions and regulations with respect to appeals from the Supreme Courts of the States, and provides in effect that the appealable amount shall not be increased beyond that fixed by the Orders in Council, while the second provides that, as to such appeals, the existing restrictions and conditions shall continue until altered by the Parliament within the ambit of its authority as controlled by the previous paragraph. These paragraphs, however, do not apply to appeals from federal Courts or Courts exercising federal jurisdiction, unless, indeed, the Supreme Court of a State exercising a new federal jurisdiction, which it had not under the laws of its own State, is to be considered nevertheless, for the purposes of this section, as a Supreme Court acting as such, and not as "a Court exercising federal jurisdiction." A distinction is, however, plainly drawn by the section itself between the two capacities in which the Supreme Court may act; and the words of sec. 6 of the Act No. 21 of 1902, already quoted, seem to refer to this distinction. A distinction between the several capacities in which a Supreme Court may act is, no doubt, unfamiliar. But such a distinction between the several capacities in which a single Judge or an inferior Court may exercise jurisdiction, so that an appeal from a decision in one capacity may lie to one Court, and from a decision in another capacity to another Court, is not unusual. A familiar instance is that of the Chief Justice of New South Wales acting as such, and as a Judge of the Vice-Admiralty Court. This distinction is most explicitly taken in sec. 39 of the Judiciary Act. In this view the restrictions of the Orders in Council do not apply to appeals from judgments of the Supreme Courts in the exercise of federal jurisdiction. That jurisdiction was, however, to be subject to such exceptions and regulations as the Parliament might prescribe. It is important to remember that the powers of the Parliament, so far as regards the appellate jurisdiction of the Court, are limited to prescribing "exceptions" from the otherwise unrestricted jurisdiction conferred by the Constitution, to prescribing regulations as to the exercise of the right of appeal, i.e., as to time, security, procedure, and similar matters, and to modifying the restrictions and conditions prescribed by the Orders in Council as to appeals from the Supreme Courts exercising State jurisdiction. But it has no authority to create any additional appellate jurisdiction. The authority, therefore, it any, of this Court to hear the case now before us is to be sought not in the Judiciary Act but in the Constitution itself, and sec. 35 of that Act is to be regarded, not as a provision for creating rights of appeal, but as a provision making exceptions from the jurisdiction conferred by the Constitution and prescribing regulations as to its exercise. Had then the High Court jurisdiction to entertain appeals from judgments pronounced before the passing of the Judiciary Act? The Court, as the embodiment of the judicial power inherent in every Sovereign State, is an essential part of the structure of the Commonwealth. Sec. 73 of the Constitution has been in force from the establishment of the Commonwealth, although the power of the High Court could not, of course, be exercised until the Court was actually constituted by the Parliament. With regard to judgments pronounced by the Supreme Court, in the exercise of their State jurisdiction before the passing of the Judiciary Act, the right of appeal to the High Court was to be subject to the same conditions and restrictions as appeals to His Majesty in Council until those conditions and restrictions were altered by the Parliament. In the meantime, if the matter were not of the appealable amount, or the prescribed time had elapsed before the actual establishment of the High Court, without an assertion by the unsuccessful party of his right of appeal to His Majesty, his right was gone. But as to appeals from federal Courts or Courts exercising federal jurisdiction other considerations arise. There is much force in the contention that the jurisdiction of those Courts was, from the first, intended to be subject to the right of appeal to the High Court, and that that right, being a right conferred by the Constitution itself upon suitors, could not be lost or taken away by mere inaction of the Parliament, or in any other way except by actual legislation prescribing exceptions. The temporary inability to exercise a statutory right by reason of a delay which, from the nature of the case, was inevitable, in the passing of an Act to determine the number of Judges of the High Court, could not, in this view, operate as a destruction or diminution of the right itself. The provisions of sec. 7 of the Claims against the Commonwealth Act 1902, which empower the Attorney-General to require the postponement of an appeal from a judgment given under the Act until a time when—it may be suggested—the High Court would probably have been established, seem also to suggest the assumption on the part of the Parliament that the Court when established would have jurisdiction to deal with judgments which had been already pronounced.

On the other hand it may be said that the words of sections 71 and 73 of the Constitution are words of futurity, that a right of appeal to a non-existent Court is illusory, and that a right of appeal involves an incidental right to take proceedings for giving effect to it, which cannot be taken until the Court of appeal itself exists. It may be said also that, as pointed out by the Judicial Committee in the recent case of Walker v. Walker (13th February, 1903) on an application for leave to appeal from the Supreme Court of New South Wales, a successful litigant is entitled to know when he can regard the litigation as at an end. It may, therefore, be argued that his right should not be held to be in suspense unless such suspension is enacted in plain and unambiguous language. Further, it is suggested that the provisions of sec. 35 of the Judiciary Act may be read as containing an indication of an opinion on the part of the Parliament that only a specified class of past judgments should be subject to appeal. It may be that that opinion was erroneous, and that they were all so subject unless excepted, or that none of them were subject to appeal. The question is one of difficulty and importance. It is, however, a matter for our discretion to say whether so important a question should be decided in the present case. And considering the nature of the case, which is, we think, on the border line, and that there is at least ground for serious argument that the case is not one in which, if we have jurisdiction to give leave to appeal, we ought, applying the rule already enunciated, to do so, and further that if an erroneous rule as to the liability of the Commonwealth has been laid down by the Supreme Court (as to which we express no opinion), the error can be corrected if it is ever again sought to apply the same rule, we think that our discretion would be most fitly exercised by refusing leave to appeal.

The order for leave will therefore be rescinded. The appellant must pay the respondent's costs of the motion, and such costs as have been incurred by the respondent in respect of the appeal.