Double Right of Appeal.

Grant of Leave to Appeal.

"The judgment of the Supreme Court shall in all cases be final and conclusive, and no appeal shall be brought from any judgment or order of the Supreme Court to any Court of Appeal established by the Parliament of Great Britain and Ireland, by which appeals or petitions to Her Majesty in Council may be ordered to be heard, saving any right which her Majesty may be graciously pleased to exercise by virtue of her royal prerogative."

Two questions arise under this clause: Firstly, does it take away the right of appeal to the Privy Council from the Canadian Supreme Court? Secondly, Does it, by implication, restrict the right of appeal to the Privy Council from the highest Provincial Court of last resort, without reference to the Dominion Supreme Court ? To both these questions the answer is in the negative. In fact, there is nothing in the section to prevent a Provincial Court of last resort from granting leave to a party to appeal to the Privy Council although the adverse party to the same suit has previously obtained leave, from the same Court, though on application to another Judge in chambers, to appeal from the same judgment to the Supreme Court of Canada.

"This double appeal," says the Registrar of the Supreme Court of Canada, "which exists as a matter of statutory right, may seem an anomaly, but in practice no difficulty has resulted from it. The statement that the judgment of the Supreme Court is final is subject to some qualification. As has been said, the section of the Supreme and Exchequer Courts Act which declares that the judgment of the Supreme Court shall be final, also says 'saving any right which Her Majesty may be graciously pleased to exercise by virtue of her Royal prerogative'; and an appeal may be allowed to the Privy Council from the judgment of the Supreme Court of Canada [except in criminal appeals and also election appeals, as will be seen hereafter], and in fact many such appeals have been allowed, not as a matter of statutory right, but of grace. The exercise of the prerogative in this direction would therefore prevent any evil which might be threatened from conflicting judgments. Further, it may reasonably be assumed that in the event of concurrent appeals being taken, the Supreme Court would withhold its decision pending the result of the appeal to the Privy Council.”*

In several cases the Privy Council has declared its reluctance to entertain appeals from the Supreme Court of Canada, "except where the case is one of gravity, involving matter of public interest, or some important question of law, or affecting property of considerable amount." It will not allow an appeal on a question merely of fact, and "parties petitioning for leave to appeal must state succinctly, but fully, the grounds on which they make their application; and must afterwards confine their proceedings to those grounds." Generally, it may be said that though the Privy Council-through its Judicial Committee-has again and again asserted its right to grant leave to appeal from the judgments of the Supreme Court of Canada; it has consistently regarded itself as bound by the desire of the Dominion Parliament-expressed in the section of the Act of 1875 which is quoted above-that the

* Quoted by Todd: "Parl. Govt. in Brit. Col., p. 309.

judgments of the Supreme Court of Canada shall be final, and has only granted leave as an act of grace to be exercised only in cases of general interest and importance.

As far as appeals to the Privy Council from Provincial Courts are concerned, they can only take place after leave to appeal has been granted by the Court against whose judgment the appeal is to be brought. That leave will only be granted if the sum in dispute exceeds a certain amount. Thus in Quebec the amount in dispute must exceed £500, and in Ontario 4,000 dollars.

There are, however, two cases in which there is no appeal to the Cases in which Privy Council.

(1) 51 Vic. c. 43, sec. 5 enacts that* :--" Notwithstanding any Royal prerogative. no appeal shall be brought in any criminal case from any judgment or order of any Court in Canada to any Court of Appeal by which in the United Kingdom appeals or petitions to Her Majesty in Council may be heard."

(2) Under an Act of the Quebec Parliament giving jurisdiction to the Judges of the Superior Court to try election petitions, declaring that "such judgment shall not be susceptible of appeal," the Privy Council-whilst safeguarding itself against any admission that the prerogative of the Crown to grant leave to appeal can be taken away by anything less than an express enactment of a Colonial Parliament to that effect-has refused in two cases to hear an appeal on an election matter from that Province, on the ground that the Act had received the assent of the Crown and that its clear intention was to exempt the judgment in such matters from any such appeal; more especially as the Court had been given jurisdiction to try election cases in substitution for the Legislative Assembly of the Province.

there is no Appeal.

The history of the clause in the Australian Constitution dealing Australia. with appeals to the Privy Council is a very interesting and not an History of the uninstructive one. It is excellently summarised in "The Annotated matter. Constitution of the Australian Commonwealth" [pp. 748-750]. In the Commonwealth Bill of 1891 it was proposed to give the Federal Parliament power to require that any appeal to the Privy Council that had hitherto been allowed from the State Courts should be made to the Federal Courts instead; whilst the Queen was to have power to allow an appeal to herself "in any case in which the public interests of the Commonwealth, or of any State, or of any part of the Queen's dominions, are concerned." At the Adelaide Convention in 1897 the clause was adopted in the form of a prohibition against any appeal to the Privy Council, either from the State Courts or the Federal Court "except that the Queen may, in any matter in which the public interests of the Commonwealth, or of any State, or of any other part of her dominions are concerned, grant leave to appeal to the Queen in Council from the High Court."

The validity of this Act is held to be doubtful by the writers of text-books; but it has never been disputed in practice.

Thus the suggestion of the Commonwealth Bill of 1891 was practically adopted by the Adelaide session of the Convention of 18971898. But at the subsequent sessions it was objected that the clause as it stood would allow an appeal to the Privy Council in the very cases which were specially of a kind to be finally decided in Australia-i.e., those in which the interpretation of the Constitution was involved. The words, " in which the public interests of the Commonwealth, or of any State, or of any other part of Her Dominions are concerned," were therefore omitted and in their place were inserted the words "not involving the interpretation of the Constitution of the Commonwealth or of a State, or in any matter involving the interests of any other part of Her Majesty's dominions." Attempts were also made to prevent appeals direct from a State Court to the Privy Council; to preserve the prerogative right of appeal to the Privy Council in all cases, whether constitutional or not; and to prevent that right being cut down by the Federal Parliament; but all these were negatived.

When the draft Bill was submitted to the Colonial Office, with a view to its being introduced into the Imperial Parliament, great objection was taken by the Law Officers of the Crown to Clause 74 in which the provisions as to appeal to the Privy Council were embodied. Generally, it was urged that the restriction of the right of appeal was undesirable; and, in particular, it was objected that there would be much difficulty in deciding what were matters "involving the public interests of any other parts of Her Majesty's dominions," and that the final decision in important questions as to the boundaries of Federal and State powers might seriously affect the interests of other parts of the Empire-especially those of banks and other institutions having large interests in Australiaand should therefore be left to the highest Court of the Empire, a Court free from any suspicion of local bias. On the general question of the power to limit the right of appeal, the Delegates answered that the Bill only conferred on the Commonwealth a power which was already vested in the Parliament of each of the several States. This contention was accepted as valid by the Colonial Office. On the two particular questions indicated above there was a long discussion which is fully detailed by Messrs. Quick and Garran [Annot. Const. Australian Comm., pp. 236-249]. Finally, a compromise was agreed to which left the clause in the following form :

"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 by virtue of Her Royal Prerogative to grant special leave of 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."

As to the practical effect of this section, there are several points From State to which attention should be drawn. In the first place, it does not Courts. affect the right of appeal direct from State Courts to the Privy Council. As Professor Moore* says:—

"The jurisdiction of the High Court to entertain appeals from the State Courts [under Sec. 73, see Chapter XI.] 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."t

But where the appeal has, as a fact, been made to the High Court, From High then under Sec. 73, the judgment of the High Court is final and Court. conclusive. So that no further appeal to the Privy Council could be made as a matter of right from a judgment of the High Court acting as a Court of Appeal from a judgment of one of the State Courts; though in the ordinary case the Privy Council could still -by the exercise of the prerogative right-grant special leave to appeal from a judgment of the High Court sitting as a Court of Appeal.

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But such special leave cannot be granted by the Privy Council Leave to in any case which falls under the particular terms of the first part Appeal. of Sec. 74-i.e., as to the limits inter se of the Constitutional powers of the Commonwealth and those of any State or States, etc., etc." In such cases there can be no appeal to the Privy Council [except upon a certificate given by the High Court, as provided for in Sec. 74] from any judgment of the High Court given in the exercise either of its original or of its appellate jurisdiction. This involves some important considerations :

(i.) The prohibition applies only to judgments of the High Court. It does not affect judgments of the State Courts. Therefore" any judgment of the Supreme Court of a State may, even if it involves constitutional questions, be appealed from to the Privy Council direct; though if the appellant chooses to adopt the alternative of appealing to the High Court instead of to the Privy Council, there can be no further appeal to the Privy Council unless the High Court certifies that such an appeal is proper.

The result does not appear to be altogether satisfactory. Whatever view may be taken of the expediency of retaining a right of appeal to the Privy Council in constitutional questions, it would at least seem that the Privy Council ought not to be

"The Commonwealth of Australia," p. 252.

† As to the conditions under which there is such a right of appeal from the State Courts in Australia, see the Table given by Professor Moore in "The Commonwealth of Australia" at p. 256.

M

Appeal on
Certificate.

required to decide any such question without having, for its assistance, the judgment of the highest Court in Australia. As it is, the decision of the High Court on a certain class of constitutional questions is final, unless the High Court certifies, for special reasons, that an appeal ought to be allowed to the Privy Council; but if any such question arises in the Supreme Court of a State, an appeal may be had direct to the Privy Council, passing by the High Court altogether. There is thus a lack of unity in the system of interpreting the fundamental law of the Commonwealth. There is also a lack of consistency; the principle that the interpretation of the Constitution, as between Commonwealth and State, ought to rest with the Australian Courts, is affirmed by the provision which makes the decision of the High Court in such cases ordinarily final, and denied by the reservation of the full right of appeal from the State Courts to the Privy Council."*

Messrs. Quick and Garran go on to point out that this anomaly can be remedied in two ways. As the right of appeal to the Privy Council from the Supreme Courts of the States depends on Orders in Council, the Imperial Government could, by altering those Orders, abolish the right of appeal in questions as to the limits of constitutional powers. Or-since the Federal Parliament has power under Secs. 76 and 77 to confer upon the High Court exclusive original jurisdiction in "cases arising under this Constitution or involving its interpretation"—the Federal Parliament could, by exercising this power, prevent State Courts from hearing such cases.

(ii.) The words "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" do not, as Professor Moore points out, † 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.'

(iii) "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 * Quick and Garran : "Annot. Const. Australian Comm.," p. 754. ↑ "Commonwealth of Australia,” p. 251.