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§ 316. “Shall not impair any Right which the Queen may be pleased to Exercise, by virtue of Her Royal Prerogative.”

The prerogative cannot be affected without express words, so that even if this declaration had been omitted, it would in effect have been read into the section. It was, however, thought advisable to prevent any possibility of it being contended that the words “final and conclusive” in sec. 73 meant conclusive as against the Queen's right to grant special leave of appeal.

For the nature and extent of the prerogative right, apart from the limitations of this section, see notes, § 310, supra. In addition to the specific limitation of the prerogative in the first paragraph, there is a potential limitation in the last words of the section.

APPEALS FROM STATE COURTS TO PRIVY COUNCIL.—This Constitution, whilst giving an alternative right of appeal to the High Court, does not interfere with the existing right of appeal direct from the State Courts to the Privy Council (see Notes, § 299, supra); and therefore there is still an appeal as of right in those cases which come within the terms of the Orders in Council in force in the respective States. This section makes it clear that there is also an appeal “as of grace” by special leave in every case.

It may be taken for granted, however, that appeals as of grace from the State Courts direct to the Privy Council will not be encouraged, and that special leave for such appeals will rarely be granted—at least in cases in which an appeal lies to the High Court. An Australian Court of Appeal having been established, the Privy Council will assuredly be reluctant to grant special leave to appeal from a State Court until the remedies available in Australia have been exhausted. There seem to be very few cases, since the establishment of the Supreme Court of Canada in 1875, in which special leave to


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appeal from a provincial Court has been either given or refused. (Theberge v. Laudry, 2 App. Ca. 102; Cushing v. Dupuy, 5 App. Ca. 409; Carter v. Molson, 8 App. Ca. 530; Allan v. Pratt, 13 App. Ca. 780. See Att.-Gen. of Quebec v. Murray, cited Wheeler, Confed. Law of Canada, p. 482. See also remarks by Mr. Symon, Conv. Deb., Melb., p. 2455.) These observations, of course, only apply to cases where special leave to appeal to the Privy Council is needed. The appeal as of right from a State Court to the Privy Council is, as already shown, not interfered with by this Constitution.

Where a decision of the Supreme Court of a State is appealable either to the High Court or to the Privy Council, the choice of tribunal lies with the appellant. It is conceivable that one party to a suit might appeal to the High Court, and another to the Privy Council; but this inconvenience can be remedied by regulation. Even in the absence of regulation, the High Court would presumably have a discretionary power to stay proceedings pending the decision of the Privy Council. In New South Wales, since the Equity Act of 1880, and in Victoria under the Act 19 Vic. No. 13, there has existed a similar alternative right of appeal from the Supreme Court in its Equitable Jurisdiction either to the Full Court or direct to the Privy Council. (See Notes, § 299, supra.)

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