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§ 315. “Unless the High Court shall Certify.”

When it is desired to appeal from a decision of the High Court upon a constitutional question of the kind described in this section, special leave to appeal must first be obtained, not, as in other cases, from the Privy Council, but from the High Court itself. This principle of making the right to appeal dependent upon the leave of the court whose decision is appealed against is not novel. For instance, in England, appeals from the county courts and other inferior courts are determined by the Divisional Court, and the decision of the Divisional Court is final unless leave to appeal is given by the Divisional Court. (Supreme Court of Judicature Act, 1873; 36 and 37 Vic. c. 66, sec. 45.)

DISCRETION TO GRANT OR REFUSE.—The High Court has an absolute discretion to grant or refuse a certificate; the only direction given by the Constitution being that the court must be satisfied that for some “special reason” the certificate should be granted. This discretion, however, like every judicial discretion, is not to be exercised capriciously nor arbitrarily, but on judicial grounds and for substantial reasons. (Per Jessel, M.R., re Taylor, 4 Ch. D. 160; per Lord Blackburn, Doherty v. Allman, 3 App. Ca. 728.) “Discretion is a science or understanding, to discern between falsity and truth, between wrong and right, between shadows and substance, between equity and colourable glosses and pretences, and not to do according to their wills and private affections.” (Lord Coke, in Rooke's case, 5 Rep. 100a.) “Discretion, when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague, and fanciful, but legal and regular.” (Per Lord Mansfield, Rex v. Wilkes, 4 Burr. 2539.)

The provision that “the High Court may so certify if satisfied that for any special reason the certificate ought to be granted” not only shows that the court has a discretion, but indicates to some extent the principles which ought to guide the exercise of that discretion. A certificate is not to be granted as a matter of course to every would-be appellant; it is not even to be granted in every case in which the Court can see some show of reason for an appeal; it is only to be granted if the Court is satisfied that for some “special reason” it ought to be granted. The use of these words seem to suggest that the certificate of the High Court, granted for “special reason,” is intended to be analogous to the “special leave” of the Privy Council. That is to say, in this particular class of constitutional questions, “special leave” to appeal must be obtained, not as in other cases from the Privy Council, but from the High Court. It seems probable, therefore, that the High Court, in granting or refusing a certificate, will be guided by the principles laid down by the Privy Council in granting or refusing special leave of appeal. (See Notes, § 310, supra.)

In this view it appears that this section, whilst technically it impairs a prerogative of the Queen, in reality only alters the channel through which the prerogative is to be exercised. The royal prerogative of granting leave to appeal from colonial courts to the Queen in Council has long ceased to be exercised personally by the Queen, and has been vested in a particular Court of the Empire—the Judicial Committee of the Privy Council. That prerogative, so far as certain kinds of Australian constitutional questions are concerned, is now transferred to another of Her Majesty's Courts—the High Court of Australia. The exercise of a prerogative which only affects the Commonwealth has


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been entrusted to the Queen's servants in the Commonwealth. So far from being novel or revolutionary, this is merely an application of a principle which has always guided the development of the self-governing powers of British colonies.

Except as specially authorized by this section, the High Court is not required to grant, and cannot grant, leave to appeal from its own decisions (see Cushing v. Dupuy, 5 App. Ca. at p. 416).

REFUSAL TO GRANT A CERTIFICATE.—In the cases mentioned in this section, if the High Court refuses to grant a certificate, its decision will be absolutely final. In connection with this subject, one interesting possibility may be referred to. The High Court can only grant a certificate when the decision appealed from involves a question of the limits inter se of constitutional powers. It is possible that, on an application for a certificate, the High Court may refuse the certificate on the ground that the question at issue is not of the specified kind, and that the proper course is to apply to the Privy Council for special leave. If the appellant then applies to the Privy Council, it is possible that the Privy Council may differ from the High Court, and hold that the question is a question of the limits inter se of constitutional powers, and that without a certificate from the High Court there can be no appeal. In such a case though the Privy Council could not set aside the discretionary order of the High Court, the High Court would clearly for the future be bound, as a matter of judicial propriety, to follow the interpretation put upon the section by the Privy Council.

WITHOUT FURTHER LEAVE.—When a certificate has been obtained under this section in respect of a particular “question,” an appeal lies to the Privy Council “on the question” without further leave. But if the appellant desires to appeal, not only on the one question, but also on some other question which does not come within the scope of this section, it would seem that he would have to obtain special leave from the Privy Council for such further appeal.

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