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15. Chapter XV. The Appellate Jurisdiction: The Crown in Council and the High Court of Australia.

THE vexation of appeals to the Privy Council is an old colonial grievance, of which traces may be found even in the seventeenth century; and in the early history of the federal movement in Australia there were few matters which were more frequently appealed to as demonstrating the need for union than the hardships and inconvenience of “a distant and expensive system of appeal.” The delay and the cost of a proceeding in the Privy Council, and the occasional weakness of the Judicial Committee, amounted to a real grievance; submission to an external Court was a sentimental grievance which counted for much in countries proud of their new-won powers of self-government. But time has worked changes; and if in the later history of federation the establishment of a general appellate court has been assumed, the desire for such a court has hardly been an effective force. Cable communication and a regular and rapid steam service have diminished delays; from one cause or another the cost of litigation in England is not greater than in Australia; the Judicial Committee has been made a sufficiently strong Court to command the confidence of everyone, and the sentimental grievance has been met, under Lord Rosebery's Act of 1895, by the admission of colonial judges to the Board. Other causes have been at


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work to modify opinion. The enormous investments of English money in the colonies, and the importance of Australian credit at a time when several of the colonies are suffering a recovery from financial disaster, have made the commercial interests favourable to a tribunal submission to which may be regarded in England as a pledge of good faith. Some importance is attached among the same classes as well as in the legal profession to the maintenance of uniformity of law throughout the Empire. A few years ago the project of a code of commercial law for the Empire was approved by the Congress of Chambers of Commerce for the Empire, and recommended to the consideration of the colonies by the Secretary of State. The scheme may or may not prove to be practicable, but it was evident that the break with English judges would be a step backwards. The public in general has too thoroughly acquired a habit of cynical indifference towards litigation to be greatly interested in the question as one of efficient administration of justice; but the discussion was caught in the tide of loyalty which swept over the country, and a strong public opinion declared against any severance of Imperial ties. The result, therefore, was compromise. The long expected general court of appeal was established; and the appellate jurisdiction of the Privy Council is retained under conditions which, whatever their demerits, respect local and Imperial sentiment, and in the main preserve the royal prerogative without creating the evil of a multiplicity of appeals. The scheme is contained in section 73 (Appellate Jurisdiction of the High Court) and section 74 (Appeals to the Queen in Council).

Section 73. 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.

(i.) Of any Justice or Justices exercising the original jurisdiction of the High Court.

(ii.) Of any other federal court or court exercising federal jurisdiction; or of the Supreme Court of any State, or of


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any other Court of any State from which at the time of the establishment of the Commonwealth an appeal lies to the Queen in Council.

(iii.) Of the Inter-State Commission, but as to questions of law only.

And the judgment of the High Court in all such cases shall be final and conclusive.

But no exception or regulation prescribed by the Parliament shall prevent the High Court from hearing and determining any appeal from the Supreme Court of a State in any matter in which at the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council.

Until the Parliament otherwise provides, the conditions of and restrictions on appeals to the Queen in Council from the Supreme Courts of the several States shall be applicable to appeals from them to the High Court.

Section 74. No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question, howsoever arising, as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the constitutional powers of any two or more States, unless the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council.

The High Court may so certify if satisfied that for any special reason the certificate should be granted, and thereupon an appeal shall lie to her Majesty in Council on the question without further leave.

Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise in virtue of Her Royal prerogative to grant special leave to appeal from the High Court to Her Majesty in Council. The Parliament may make laws limiting the matters in which such leave may be asked, but proposed laws containing any such limitation shall be reserved by the Governor-General for Her Majesty's pleasure. (vide section 60.)




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On these sections the following observations may be made:

1. Section 73 shows the High Court in its two capacities—first, the Supreme court of federal jurisdiction in the Commonwealth; secondly, the general court of appeal in the Commonwealth. In the first capacity, it may be compared with the Supreme Court of the United States; in the second, with the Supreme Court of Canada.

2. Section 73 not merely confers jurisdiction on the High Court where there is a right of appeal, but grants a right of appeal to the litigant, for the jurisdiction is to hear appeals from all judgments, etc. But it is subject to restriction by the Parliament, and in the case of appeals from the State Courts is limited by the section itself.

3. There is no appeal as of right to the Queen in Council from any judgment of the High Court in its appellate jurisdiction. The words used in sec. 73—“final and conclusive” —are the words used of the Canadian Supreme Court, and have been assumed by the Judicial Committee to mean that the right to appeal to the Queen in Council is not continued in cases where an unsuccessful litigant in a provincial court has resorted to the Supreme Court of Canada.note

4. The declaration of sec. 73 that the judgment of the High Court shall be final and conclusive, would not impair the prerogative of the Queen to entertain such appeals in Council as a matter of grace, whether there were express words saving the prerogative or not.note The last paragraph of section 74 does contain words saving the prerogative to grant special leave of appeal from the High Court to the Queen in Council, but the terms of that section affect the prerogative in to ways: (1.) The words introducing the saving clause—“Except as provided in this Constitution”—make it evident that the first part of section 74 is intended to exclude the prerogative and that no leave to appeal in the class of cases there referred to is to be given except by the High Court. (2.) The Parliament may make laws in


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effect limiting the prerogative of the Queen to grant special leave to appeal from the High Court to Her Majesty in Council. There has been and is some doubt whether a colonial legislature in the exercise of its general powers, may not merely deprive the litigant of his right to appeal to the Queen in Council (which is admitted to be within its powers), but can also prevent him from asking and the Crown from granting special leave to appeal as a matter of grace.note In the Commonwealth, the Parliament receives an express grant of this power in the case of judgments of the High Court.

5. The circumstances in which the Judicial Committee will advise the Crown to grant special leave to appeal are very rare; it is part of the declared policy of the Board to discourage such applications, and it has been laid down that leave will be refused “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.”note In the case of appeals from the High Court this is narrowed by the fact that the cases expressly withdrawn by section 74 from the prerogative power are typical cases in which, but for the withdrawal, special leave would be given by the Queen in Council.

6. The power of the High Court to grant a certificate to appeal in the cases withdrawn from the prerogative power, is established by the Constitution, and cannot be taken away or affected by the Parliament. It differs from the “leave of the Supreme Court” which under the Orders in Council is one of the conditions of “the appeal as of right” from colonial courts, since the High Court is to certify only “if satisfied that for any special reason the certificate should be granted.” The “special reasons” which will satisfy the High Court must, of course, to a great extent, be a matter of conjecture. A typical special reason might be found in the case provided for in the Draft Bill—questions which involve


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the public intersts of some part of Her Majesty's Dominions, other than the Commonwealth or a State. Probably if the matter of litigation itself affected some other part of the Queen's Dominions, the case would not fall within the prohibition—it would not be “as to the limits inter se.” But many conceivable cases “as to the limits inter se” of the constitutional powers in question might depend upon principles of common application throughout the Empire, and upon which it is eminently desirable that there should be an uniform rule declared by a common authority. Again, a case in which the High Court is divided in opinion, or in which it disagrees with a previous decision of the Court, may furnish a special reason for certifying for an appeal to the Queen in Council.

7. The prohibition of appeals to the Queen in Council, and the attendant power of the High Court to certify for special reasons apply howsoever the questions arise—whether in suits between private parties, or between the Commonwealth and a State or between States; or (if that course be possible) in a case stated for the opinion of the High Court.

8. The prohibition and the power apply only to the determination of the particular question of constitutional law, not to the determination of the whole case. If a case contains several points of law, only one of which falls within the provision, an appeal on all of them could only be had by leave of the High Court on the question of constitutional powers, and of the Queen in Council on the other matters. Further, if the question of constitutional powers has not been raised and decided in the High Court, it would appear competent to the Privy Council to consider and determine it. Finally, the questions of constitutional powers referred to might reach the Privy Council for consideration and determination otherwise than on appeal from a decision of the High Court, in which case of course the Privy Council would have to decide them.

9. It is perhaps necessary to call attention to the fact that questions “as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or


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States or as to the limits inter se of the constitutional powers of any two or more States,” do not exhaust possible constitutional decisions of the High Court even in the narrowest sense of the word “constitutional.” The interpretation of the Commonwealth Constitution on many points will fall without those terms. The distribution of power amongst the organs of the Commonwealth Government; the exercise of power by Commonwealth or State in excess of their respective powers but not in derogation of the powers of the other, are illustrations. Questions of proprietary right such as have arisen between the Dominion and the Provinces in Canada, and are not unlikely to arise in Australia, are hardly questions of “constitutional powers.”

10. The subject of appeals from the State Courts is expressly dealt with only by section 73 (ii). The provision recognises that there may be some State Courts other than the Supreme Court from which an appeal lies to the Queen in Council. Not to speak of the old jurisdiction formerly exercised in some of the colonies by the Governor in Council as a Court of Error and Appeals from the Supreme Court,note Colonial Courts of Admiralty under 54 and 54 Vict. c. 27 are not identical with the Supreme Courts of the Colonies where the Act is in force; and it is probable that the Vice-Admiralty Courts in New South Wales and Victoria which have not yet been brought under the Act are not included under “courts of any State.” In Victoria, the Governor-in-Council has a statutory jurisdiction by way of appeal from judgments of courts of marine inquiry. Although the Queen in Council is the ordinary Court of final appeal in colonial cases, so that the terms used in section 73 are those which naturally suggest themselves as embracing the whole


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range of appellate jurisdiction, there is at any rate one case in which the appeal from a colonial court lies to another English Court—appeals from Colonial Courts of Inquiry under 45 and 46 Vict. c. 76, sec. 6,note lie to the Probate Divorce and Admiralty Division of the High Court of Justice.

11. The Commonwealth Parliament may make exceptions and regulations as to the power of appeal from State Courts to the High Court, subject to the limitation that it may not prevent the High Court from hearing and determining any appeal from the Supreme Court of a State in any matter in which at the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council (section 73). The State Parliament has no power directly to define the conditions and restrictions applicable to appeals from its Courts to the High Court.

12. The present jurisdiction of the High Court to entertain appeals from the Supreme Courts of the States is defined by the clause of section 73, under which, “until the Parliament otherwise provides, the conditions of and restrictions on appeals to the Queen in Council from the Supreme Courts of the several States shall be applicable to appeals from them to the High Court.”

13. The jurisdiction of the High Court to entertain appeals from the State Courts does not extinguish the right of a litigant to appeal from the highest court of the State to the Queen in Council; the jurisdiction of the High Court is concurrent with, not exclusive of, the jurisdiction of the Queen in Council. The restrictive provisions of section 74 apply only where the High Court is the tribunal resorted to. The practice now well established in regard to judgments of the Supreme Courts of the Provinces in Canada is reproduced in the Commonwealth. In Canada, the party aggrieved by a decision of the Supreme Court of a Province may elect to prosecute his appeal either to the Queen in Council or to the Supreme Court of Canada. If both parties are aggrieved, one may


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appeal to the Queen in Council, the other to the Supreme Court of Canada, and in one case this course was actually taken.note This may be a “solecism in jurisprudence”; it may produce awkward relations in the particular case, and it may produce uncertainty of the law by reason of the conflict of authority. However, we are assured that no difficulty has resulted from the practice.

14. The right of appeal from the States Courts to the Queen in Council is regulated by Charters, Orders in Council under statutory power, and local statutes.note Over the rights so arising, the Crown and the State legislatures have full power—they may extinguish such rights, or they may grant rights of appeal in excess of those at present existing.

15. The fact that the right to appeal to the Queen in Council from the State Courts is not merged in the appeal to the High Court, and that the Crown and the States may regulate such appeals, suggests a question as to the meaning of the clause referred to in 12. Are the conditions and restrictions there referred to those existing at the establishment of the Commonwealth, or those which the Crown or the States may from time to time—the Commonwealth Parliament not having otherwise provided—ordain? Good reasons may be found for either opinion, but in a case which presents some analogy, the Judicial Committee pronounced against the inclusion of prospective changes. The legislature of New South Wales had adopted a standing order, by which, for the regulation of matters of procedure not expressly provided for, resort was to be had to “the rules, forms, and usages of the Imperial Parliament.” The Judicial Committee held that in their application to the Legislative Assembly “the words naturally signify the then existing and known rules, forms, and usages of the House of Commons. In the absence of words of prospect or futurity, and any context indicating an intention so improbable as that of adopting by anticipation all future changes in the procedure or practice of the House of


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Commons,” their Lordships think it would be unreasonable so to construe the Standing Order” (i.e., as to adopt future changes).note

16. The Commonwealth Parliament has no power to interfere with the right of appeal to the Queen in Council from the Courts of any State except where the matter is one falling within the subjects enumerated in sections 75 and 76. Those are matters of federal judicial power, and the Parliament may provide that they shall be brought into federal jurisdiction from the Courts of the State by appeal or otherwise.

17. Where a State Court has been invested with federal jurisdiction and is acting in that jurisdiction, there is of course no right of appeal to the Queen in Council. The appeal is to the High Court alone, and is subject to regulation by the Parliament.

18. If the right to appeal to the Queen in Council from the States Courts is unaffected by the jurisdiction of the High Court under section 73, a fortiori the prerogative of the Crown to receive appeals in Council from such Courts as a matter of grace is unimpaired. There is no corresponding power in the High Court, and consequently for the present the considerations which have influenced the Judicial Committee in determining whether special leave ought to be given to appeal from a decision of the Supreme Court of one of the Australian Colonies will apply with equal force to applications for leave to appeal from the Supreme Courts of the States. Thus, the only possible appeal from a State Court in a criminal case will be to the Queen in Council by special leave. But the Parliament may remove restrictions upon appeals to the High Court; and if it should do so, the fact that there is a right of appeal to the High Court will probably be a reason for refusing special leave to appeal to the Queen in Council from a judgment of a State Court. Whether the State Parliaments can by apt and sufficient words deprive the Crown of its prerogative to hear appeals as a matter of


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grace is one of the unsettled questions of constitutional law. The Crown is a party to colonial legislation, and colonial legislation frequently does impair the royal prerogative, whence it might seem that the State Parliaments could extinguish the prerogative of grace. On the other hand, there is a distinction between prerogatives exercisable in a colony which may well be affected by the enactments of the colonial legislature, and majora regalia which, though belonging to the Crown in respect to the colonies, are not exercised there. These may be regarded as matters of Imperial and not local concern, to be affected only by the legislation of the Imperial Parliament. This is probably the better opinion.note

Note.—The tables on the following pages are the regulations under which at the present time appeals from the Australian States lie to the Queen in Council. They are in the main extracted from a Table prepared by Mr. Wood Renton, and published in the Journal of the Society of Comparative Legislation, December, 1899.




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COLONY Authority under which Appeals are tendered.  Appealable Amount.  Limit of time within which leave to Appeal must be asked.  Security Required. 
NEW SOUTH WALES Order in Council of November 13, 1850, under 9 Geo. iv. c. 83 (The Australian Courts Act, 1828). See Statutory Rules and Orders Revised, vol. iv., p. 347.  A sum exceeding, or a claim to property or civil right amounting to, £500.  Fourteen days from the date of the judgment appealed against.  Regulated by the Court below, and to be found within three months of the petition for leave to appeal. Execution may be suspended or carried out, respondent giving good and sufficient security. Pro forma judgment sufficient for purpose of appeal when judges equally divided. 
QUEENSLAND. Remarks—By Constitution Act, 1867 (31 Vict., No. 38, sec. 24), appeal lies to Privy Council as to vacancy in Legislative Council.  Order in Council of June 30, 1860, reciting 7 and 8 Vict., c. 69 (Judicial Committee Amendment Act, 1844.) (See Stat. R. and O. Rev., vol. iv., p. 366.) 24 and 25 Vict., No. 44.  As N.S.W.  As N.S.W.  Not exceeding £500; otherwise as N.S.W. 
SOUTH AUSTRALIA Order in Council, June 9, 1860, reciting Judicial Committee Act, 1844. (See Stat. R. and O. Rev. vol. iv., p. 379.)  As N.S.W.  As N.S.W.  Not exceeding £500; otherwise as N.S.W. 
TASMANIA Charter of Justice, March 4, 1831, reciting Australian Courts Act, 1828 (Stat. R. and O. Rev., vol. iv., p. 382).  From judgment for sum above, or involving directly or indirectly claim to property or civil right of value of £1000.  Fourteen days.  Appellant's security regulated by Court below, within three months. Execution may be carried out or suspended, respondent or appellant giving security, as case may be. 
VICTORIA.Remarks—As to the relation between the Orders in Council and the Supreme Court Act, see Ex parte Rolfe (1863), 2 W. and W. 51: The Extended Hustlers' Freehold Company v. Moore, etc., 5 A. J. R. 154; Pearson v. Russell (1889), 15 V. L. R. 89; Commercial Bank v, M‘Caskill (1897), 23 V. L. R. 343; Alliance Contracting Coy. v. Russell (1898), 23 V. L. R. 545.  Order in Council, June 9th, 1860, reciting Judicial Committee Act, 1844 (Stat. R. and O. Rev., vol. iv., p. 393: Local Act, Supreme Court Act, 1890, section 231.)  A sum exceeding, or a claim to property or civil right amounting to, £500. Under the Local Act the appealable amount is £1000.  Within fourteen days.  Not exceeding £500. Otherwise as N.S.W. 
WESTERN AUSTRALIA Order in Council, Oct. 11, 1861: Local Act, 24 Vict., No. 15, section 29.  As N.S.W.  As N.S.W.  Within twenty-eight days. Execution stayed if notice of appeal given and security perfected. 

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