Page:Cesan v The Queen.pdf/27

French CJ

This is not a case about the judicial power of the Commonwealth nor implications to be drawn from Ch III of the Constitution. This Court, in allowing the appeals, did so on the basis that it was not necessary to decide the case by reference to the requirements of Ch III or s 80. Nevertheless the character of the judicial process as an element of the exercise of judicial power derives from the history and nature of the judicial function which in turn informs the constitutional concept.

There have been many judicial observations which lend support to that general proposition. In Robins v National Trust Co the Privy Council said of the concept of miscarriage of justice" in relation to judicial proceedings generally :

"It means such departure from the rules which permeate all judicial procedure as to make that which happened not in the proper use of the word judicial procedure at all."

In Srimati Bibhabati Devi v Kumar Ramendra Narayan Roy a "miscarriage of justice" was seen as such a departure from the rules which permeate all judicial procedure as to make that which happened not judicial procedure in the proper sense of the words. It does not necessarily require the demonstration of a wrong decision. As Asprey JA said in Wilson v Wilson :

"What will constitute a miscarriage of justice may vary, not only in relation to the particular facts, but also with regard to the jurisdiction which has been invoked by the proceedings in question; and to reach the conclusion that a miscarriage of justice has taken place does not require a finding that a different result necessarily would have been reached in the proceedings said to be affected by the miscarriage. It is enough if what is done is not justice according to law." (citation omitted)

Windeyer J said, in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd, that the concept of judicial power "inevitably attracts consideration of predominant characteristics and also invites comparison with the