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

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

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

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.1

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. 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 1 See Johnston v. St. Andrew's Church, 3 App. Cas. 159. Cushing v. Dupuy, 5 App. Cas. 509.

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. 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." In the case of appeals from "In 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

1 See Cushing v. Dupuy (1880), 5 App. Cas. 409, 416.

2 Prince v. Gagnon (1883), 8 App. Cas. 102.