australian federation and the privy council

Australian federation and the privy councilAuthor(s): Butterworth, Arthur ReginaldSource: Foreign and Commonwealth Office Collection, (1900)Published by: The University of Manchester, The John Rylands University LibraryStable URL: http://www.jstor.org/stable/60228952 .

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s AU °\^H, 2i

AUSTRALIAN FEDERATION

AND

THE PRIVY COUNCIL.

ARTHUR REGINALD BUTTERWORTH,

OF THE INNER TEMPLE AND WESTEBN CIBCUIT, ESQUIRE, BAREISTEB-AT-LAW, MEMBEB OP THE BAB OF NEW SOUTH WALES,

HON. MEMBEE OP THE INSTITUTE OP BANKEES OP NEW SOUTH WALES.

LONDON:

SWEET & MAXWELL, LIMITED,

3, CHANCERY LANE.

y&nto "jgixblxslgm. MELBOUENE AND SYDNEY: C. F. MAXWELL.

1900.

i

J

Price One Shilling.



K i

\'A



AUSTRALIAN FEDERATION,

AND

THE PRIVY COUNCIL.

BY

ARTHUR REGINALD BUTTERWORTH,

OP THE INNER TEMPLE AND WESTERN CIRCUIT, ESQUIRE, BARBISTEB-AT-LAW, MEMBEE OP THE BAE OP NEW SOUTH WALES,

HON. MEMBER OP THE INSTITUTE OP BANKERS OP NEW SOUTH WALES

LONDON:

SWEET & MAXWELL, LIMITED,

3, CHANCERY LANE.

licto UitlrJis&m* MELBOUENE AND SYDNEY: C. F. MAXWELL.

1900.



LONDON: PRINTED BY C. F. ROWORTH, GEEAT NEW STREET, PETTEE LANE, B.C.

X



4 t

I

AUSTRALIAN FEDERATION

AND

THE PRIVY COUNCIL.

The Australian Federation Bill, which will shortly be introduced in the House of Commons, has had the attention of the public called to it in a somewhat unusual manner. On the 15th March an announcement was made in the Times to the following effect: " The "

delegates who have been invited from Australia to " confer with the law officers of the Crown on the "

subject of the Australian Commonwealth Bill are " now all in England. They will probably be received "

by Mr. Chamberlain this week, and it is hoped that " the first reading of the Federation Bill will be passed " before Easter. The articles of the Constitution em- " bodied in the Bill cannot be modified in the slightest "

particular without creating the necessity for referring " the Bill once more to a plebiscite in the Australian " Colonies ; but there are certain introductory covering " clauses in which modification is possible, and it is "

partly with regard to these, and partly for the pur- "

pose of laying before the law officers of the Crown " the true interpretation of the articles of the Constitu- " tion to which Her Majesty will be asked to assent, " that the conference between the Imperial authorities " and Colonial delegates will take place."

Having regard to the importance of the measure, and to the extraordinary nature of some of its provi-

v 2



4 FINALITY CLAIMED FOE BILL.

sions, which would have far-reaching effects not only in

Australia but in other parts of the Queen's dominions, it is to be hoped that, in the interests of the Australasian

Colonies as well as of the Empire at large, the British

Parliament will not be content to pass the Bill en bloc

without discussing, and if necessary amending, its

clauses. A careful consideration of the Bill seems all

the more called for, since a glance at its history shows

that the greatest divergence of opinion exists in Australia

as to the wisdom of some of its provisions. While some Australian politicians, more especially

those who are largely responsible for the present form

of the Bill, strenuously urge that it should be passed

by the Imperial Parliament without even verbal altera¬

tion, others not less distinguished by their public services, and equally anxious to aid the cause of federa¬

tion, argue that it requires amendment, if only to

render the measure workable and its meaning less

obscure. The ingenious device of representing that

each clause of the Bill has been fully considered by the

people of Australia, and that the general body of

electors who accepted the Bill have pronounced in favour

of its very terms, is not calculated to carry more than

due weight with those who take the pains to examine

the past history of the Bill and the circumstances under

which it has evolved into its present form. The strong

feeling entertained by many leading Australians that

certain clauses urgently require amendment, does not

diminish as time goes on. " More haste less speed" sometimes holds true in political as in other affairs, and

even if another referendum to the electors is deemed

expedient before federation is carried into effect, the

short delay will not be dearly bought if it leads to a

real improvement of the measure. At any rate it may be just as well to hear what Australians themselves

have to urge in favour of amendment before assuming

7 0



X AUSTRALIAN VIEWS THEEEON.

1

that any alteration will throughout Australia be almost

universally resented. Sir Samuel Griffith, Chief Justice of Queensland,

who when Chief Secretary and Premier of that Colony took a leading part in the Federal Convention of 1891, and whose warm interest in promoting the cause of federation must place him above suspicion, in some recent letters to Sir John Forrest, Premier of Western Australia, discusses the question of making certain amendments in the Bill in order to facilitate Western Australia joining in the federation. " Of course," he writes, " if the draft Constitution, as framed by the ' Convention, is to be regarded as a sacred writ, upon ' which no profane hand may be laid, such a consum- ' mation is out of the question. For my own part, I '

regard the work of the Convention merely as a means ' to an end, and that end is not the approval of the ' Constitution as framed by them without verbal altera- ' tion, but the establishment of the Commonwealth '

upon a satisfactory and workable basis. I take it ' for granted that the principles laid down in the Draft ' Bill are satisfactory, and must be accepted. ' But apart from this general view, I regard the ' Draft Bill as merely human work, and, therefore, as '

possibly containing errors which may require amend- ' ment. I am not aware of any instance in which a '

sovereign Legislature has regarded itself, in a case '

involving matters of supreme political importance, as ' a mere registry in which are to be formally recorded ' and enacted the decrees drawn up by a subordinate legis- ' lative authority, without examination or scrutiny. My '

experience, which is tolerably long and varied, does ' not afford any instance in which a complicated legis- ' lative measure, as first framed, was not capable of ' verbal amendment, and, in my judgment, the Draft ' Bill is no exception. I can see grave difficulties of

x



6 sir samuel Griffith's views. X

construction, which are likely to arise upon some of its provisions as now framed, and which, in one view of their meaning, might occasion serious political difficulties in the early future, and, in any case, are

likely to give rise to litigation. Whether the same difficulties would present themselves to the Imperial Parliament I do not know. But, if they did, it would clearly be their duty to remove the ambiguities by explanatory and declaratory provisions, or in some other way. Such alterations would not involve any greater reflections upon the work of the Convention than those to which all other human work is open.

It is, however, I understand, objected that the Draft Bill having been submitted to the electors, and accepted by them, no alteration—not even a verbal one—is admissible. The objection seems untenable both in form and substance. In

point of substance, it is idle to say that the ipsissima verba of the Constitution were submitted to or con¬ sidered by the electors. They voted for or against f the principles of Federal Government contained in the Bill, and cared little or nothing for the phrase¬ ology adopted by the framers. Some, indeed, voted for the Bill notwithstanding what they thought to be its defective language. I am at a loss to understand the attitude of those who, professing to desire a com¬

plete federation of Australia, would offer any serious

objection to the adoption of such a course of action as I have suggested. If the end is greater than the means, and if the end is a complete federation, why should the fact that certain persons—no doubt of

great eminence and ability, but, after all, only human —have framed a scheme of Government which, as is now discovered, does not make complete provisions ,<• for the attainment of the desired end, be an obstacle to its attainment?" Those who insist that the Bill



^ APPEALS TO PRIVY COUNCIL. 7

cannot be altered would, in the opinion of the Chief Justice, " prefer an incomplete federation to the imagi- "

nary discredit of having their opinion overruled." In i his second letter, Sir S. Griffith argues that desirable

amendments will not really cause much, if any, delay; and he does " not suppose that anyone who has federa- " tion at heart would object to a short delay in order to " attain so great an object as the completion of the " federation of all Australia. I am not likely to "

forget what occurred at the Colonial Conference in " 1887, when the refusal, in spite of the warnings " of the representatives of Queensland, of a delay of "

forty-eight hours led to a delay of three years in " the acceptance of the naval defence scheme by that "

Colony "(a). In the present article it is proposed to discuss more

particularly those clauses of the Bill—71 to 80—con¬

stituting Chapter III., which treats of the Judicature. These clauses call for special attention, since they propose, as regards litigants in Australia, materially to curtail the right, at present existing throughout the

Empire, of appeal to Her Majesty in Council. That this right of appeal—certainly one of the most

important links remaining between the colonies and the mother country—insuring as it does a uniform inter¬

pretation of law throughout the Empire, is of first

importance from an imperialist point of view seems clear; while a perusal of the records of the Australian Conventions shows that the value of this right is fully appreciated by many of the most influential bodies in Australia. The marked ability of the speeches de¬ livered at the Conventions in favour of retaining the

existing right of appeal, the resolutions passed and

(a) The two letters were dated the 21st and 23rd January, 1900, and were published in the Western Mail (of Perth) on 10th February, and also in Sydney papers.

J.



8 CONVENTION OF 1891.

petitions presented to the same effect, the absence of

petitions to the contrary, the narrow majorities on vital amendments to these clauses—all tend to show the existence of a very strong and influential body of

opinion in favour of retaining the right of appeal, and to cast doubt upon the wisdom of the proposed changes.

Before examining these clauses in detail, it may be well to give some account of how the Bill has come into existence and has assumed its present form. The first Australasian Convention, constituted of forty-five dele¬

gates appointed by the Houses of Parliament in each of the seven Colonies—three from New Zealand and seven from each of the other Colonies—held their meetings in March and April, 1891, in Sydney. A committee of fourteen members, two from each Colony, was appointed and instructed to prepare a Bill for the establishment of a Federal Constitution, and accordingly a Bill " to constitute the Commonwealth of Australia " was drafted, and after being discussed and amended was adopted by the Convention on the 9th April, 1891, after which the Convention was dissolved (a).

Although this Convention recommended that pro¬ vision should be made by the Parliaments of the several Colonies for submitting for the approval of the people the Constitution as framed by the Convention (b), this was not in fact carried out in any of the Colonies, and for the next four years no active steps were taken to

promote federation. Early in 1895, however, a Con¬ ference of the Premiers of all the Australasian Colonies, except New Zealand, was held at Hobart, when it was decided to ask the Parliament of each Colony to pass a

(a) Official Eecord of the Proceedings and Debates of the National Australasian Convention held in Sydney in March and April, 1891, published at Sydney by the Government Printer, 1891.

(6) Official Eecord of Convention of 1891, p. cxxii.



1

HISTORY OF THE BILL. 9

Bill enabling the electors to choose ten persons to

represent the Colony in a Federal Convention, which should frame a Constitution to be submitted to the

people for approval by means of the referendum (c). In 1896 enabling Acts were passed by each of the seven Colonies except Queensland and New Zealand. In 1897 representatives to the number of fifty were chosen under those Acts, and the Convention held three sessions—the first at Adelaide from the 22nd March to the 23rd April, 1897; the second at Sydney from the 2nd to the 24th September of that year ; and the third at Melbourne from the 20th January to the 17th March, 1898, when its proceedings came to a final close (d).

The Draft Bill adopted by the Convention of 1891 formed the basis of the new Bill submitted by a Draft¬

ing Committee (e) to the Convention, although some of the clauses underwent a radical change; and this Bill, after further discussion and many alterations, was finally adopted by the Convention on the 16th March, 1898.

The Bill, however, had next to go through the ordeal of the referendum; and although, when submitted to the electors in June, 1898, it was approved by large majorities in Yictoria, South Australia, and Tasmania, in New South Wales, where nearly half the voters were

bitterly opposed to some of its provisions, the minimum

(c) See Tho "Wealth and Progress of New South "Wales, 1897-8, by T. A. Coghlan, Government Statistician, published at Sydney by the Government Piinter, 1S99, p. 89.

(d) See Official Eecord of the Debates, published by the Government Printer, of the First Session, 1 vol., Adelaide, 1897; of the Second Session, 1 vol., Sydney, 1897; of the Third Ses¬ sion, 2 vols., Melbourne [1898]. Tho Minutes of the Proceed¬ ings of each session, together with Papers ordered to be printed, and Petitions, are published in separate volumes.

(e) The Drafting Committee, which was reappointed in each session, consisted of three members—-Mr. Barton, Q.C., Sir John Downer, Q.C., and Mr. O'Connor, Q.O.



lO SIR HENRY PARKES ON HIGH COURT.'

affirmative vote required by law of 80,000 was not obtained, the numbers being 71,595 for the Bill and

66,228 against it—a majority of 5,367 in its favour (/). In Western Australia the" Bill was not, and has not yet been, submitted to the people. Resolutions—though not identical in each House—suggesting various amendments were shortly after adopted by both Houses of Parlia¬ ment in New South Wales, and Mr. Reid was authorized to submit these resolutions to a conference of Premiers. This conference, at which Queensland was represented, assembled in Melbourne at the end of January, 1899, and a compromise was effected, and certain new amend¬ ments to the Draft Bill of 1898 agreed upon (</). A new Federation Enabling Act was subsequently passed in each of the five Colonies of New South Wales, Victoria, South Australia, Queensland, and Tasmania, providing that the Bill as amended should again be referred to the electors, and that the majority of votes should decide the question proposed in the ballot-paper:

" Are you in " favour of the proposed Federal Constitution Bill as "amended?"—no minimum number being now re¬ quired. At the subsequent polls a large majority of the votes in each of these Colonies was in favour of the Bill.

At the first Convention of 1891, the late Sir Henry Parkes, who was elected President, and who by his great personality left his mark upon the proceedings, began by submitting a series of resolutions, one of which pro¬ posed to establish " a Judiciary, consisting of a Federal "

Supreme Court, which shall constitute a High Court " of Appeal for Australia, under the direct authority of " the Sovereign, whose decisions, as such, shall be final." In submitting this resolution, he said: "In seeking to

(/) See Mr. T. A. Coghlan's Seven Colonies of Australasia, published by the Government Printer, Sydney, 1898.

(</) See Mr. T. A. Ooghlan's "Wealth and Progress of New South "Wales, 1899, pp. 92—94.

K



X SIR HENRY WRIXON ON APPEAL. 11

" create this Supreme Court of Australia, it will be ob- " served that I seek to create within it an Appellate " Court from which there shall be no appeal to the " Queen in the Privy Council"; and he added: "I " think we shall make a great mistake if we allow any "

appeal to be made outside the shores of the new "Australia" (A).

This view, however, did not pass unchallenged, and on a later day Sir Henry (then Mr.) Wrixon, Q.C., expressed the opinion that to take away the right of appealing to the Privy Council would be to " make a " very great sacrifice for a very small gain. At present," he added, " it is one of the noblest characteristics of our "

Empire that, over the whole of its vast area, every sub- " ject, whether he be black or white, has a right of "

appeal to his Sovereign for justice. That is a great " right, and a grand link for the whole of the British

" Empire. But it is more than that. It is not, as it

" might be considered, a mere question of sentiment,

" although I may say that sentiment goes far to make

" up the life of nations. It is not merely that; but the " unity of final decision preserves a unity of law over " the whole Empire. The Privy Council at any rate, " when it decides, decides finally, and for the whole of " the Empire. If you provide that your Court of Appeal " in Australia shall be final, this evil may arise: The "

Supreme Court of Australia will decide (say) a com- " mercial question on the construction of a charter- "

p>arty in one way this year, while next year the " Judicial Committee of the Privy Council, composed, " I will say for the sake of argument, of a very strong " court, will decide the very same question in another " way. We should then be in this curious position— " that we should have a different law from that of the

(7i) Official Eecord of Convention of 1891, p. 13.

i



12 SIR HENRY WRIXON ON APPEAL.

" rest of the Empire on a great mercantile question. " There would then be a feeling in our local courts as " to whether they should follow the decision of the " Court of Appeal in Australia or the decision, which "

they might consider to be the better law, of the " Judicial Committee in England I believe there is " a vast gain in unity of administration and interpreta- " tion of the law, and in having in all these distant and " scattered dependencies, not only the decisions of the "

English judges to go upon, but also the legal litera- " ture of England, the books and comments upon them, " to guide us as to the law on different subjects. All " lawyers know how valuable that is. All that, how- " ever, would be lost when you cut away the connection " in judicial matters between the Dominion and the old "

country" (i). He further pointed out the difficulty of constituting an Appellate Court sufficiently strong to

oommand unquestioned confidence in all cases, as, for

example, if it overruled a decision of the full Court of

Victoria, constituted of six judges. At a later stage Sir Henry Wrixon endeavoured to

carry out his views to some extent by moving an amend¬

ment to the Draft Bill which would have had the effect

of allowing a petition for special leave to appeal to be

presented to the Judicial Committee in all cases; but on a division he was defeated by a majority of two—the

voting being 19 to 17 (/I)—and the Bill of 1891, as

finally adopted, proposed to empower the Federal Parliament to enact that appeals "shall be brought " to the Supreme Court of Australia, and the "

judgment of that Court in all such cases shall be final " and conclusive " : Chapter III., § 5. But notwith¬

standing these provisions, " the Queen may, in any case

(i) Official Eecord of Convention of 1891, p. 105. (k) Official Eecord of Convention of 1891, pp. 380—381.

i

\



OBJECTIONS OF LEGISLATURES. 13

" in which the public interests of the Commonwealth, " or of any State, or of any other part of the Queen's " dominions, are concerned, grant leave to appeal to " Herself in Council against any judgment of the "

Supreme Court of Australia " : Ibid., § 6. In the subsequent Draft Bill of 1897, approved by

the Convention sitting at Adelaide, the matter was

expressed in terms which, if bald, had at least the merit of perspicuity. Clause 75 ran as follows:—" No appeal " shall be allowed to the Queen in Council from any " Court of any State, or from the High Court or any " other 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."

Before the next session of the Convention the Bill had been considered in the various Legislatures of the

\ five Colonies represented, and many amendments had been suggested. The Legislative Assembly of New South Wales and the Legislative Council of Tasmania

suggested that Clause 75 should be omitted; while the

Legislative Council of New South Wales made a sug¬ gestion, not unlike that of the Lord Chancellor in

Iolanthe, by proposing that the first word " no " should be omitted, and the word " an" be inserted in its

place (/). Neither suggestion found favour with the majority

of the Convention; but an alteration of a most extra¬

ordinary character was subsequently made in the clause —an alteration which throws a strange light on the

(V) Tabular Statement of Amendments suggested by the Houses of Legislature of Now South Wales, Victoria, South Australia, Tasmania and Western Australia, Proceedings at Sydney, 1897, pp. 124, 125.

K



14 TOPSY-TURVY LEGISLATION. /

kind of amendment which might meet with success, and the compromises by means of which the Bill was brought into its present form.

By the Draft Bills of 1891 and 1897, as has been seen, it was provided that special leave to appeal might still be granted by the Queen in Council in any matter

concerning the public interests

1. Of the Commonwealth; 2. Of any State ; or 3. Of any other part of the Queen's dominions;

but in no other matter.

The present Bill provides with respect to any matter

involving the interpretation

1. Of this Constitution; or 2. Of the Constitution of a State;

and not also involving the public interests of some other

part of the dominions, that these matters, and these matters alone, shall be absolutely excluded from appeal; but in all other matters whatsoever it shall be competent to Her Majesty to grant special leave to appeal (m).

There seems small room for doubt that, although the terms employed in the two Bills are not identical, the two classes of matter mentioned in the Bill of 1898 cover most of the ground occupied by the two classes of matter first mentioned in the Bill of 1897; and if so, it follows that two out of the three subject-matters which in 1897 were specially reserved for appeals to the Privy Council were in 1898 designated as the only subject- matters in which no such appeal is to be permitted.

At the second session of the latter Convention, held

(m) Clause 74 of the Bill of 1898, corresponding to clause 75 of the Bill of 1897, will be found set out^osi, at p. 17.



4

PETITIONS TO PRESERVE APPEAL. 15

in Sydney in 1897, the Judicature clauses were not reached, but they were much discussed at the third and final session held in Melbourne in 1898, and the speeches again showed the divergence of views held by the delegates with respect to the merits of the proposals made. Another striking feature of these debates was the confident but misleading statements made by several delegates as to the present right of appeal from the Courts of Canada—a subject frequently referred to,— none of the delegates appearing to be aware that appeals still lie as of right from the Provincial Courts direct to the Privy Council, or that such appeals are of frequent occurrence.

Meanwhile a large number of petitions from important public bodies were presented in favour of preserving the existing right of appeal to the Privy Council. Banks in New South Wales and in Victoria, insurance companies, the Chambers of Commerce of Sydney and Melbourne, the Australasian National League, the Melbourne and Metropolitan Board of Works, the Pastoralists' Association of Victoria and Southern Riverina, the Royal Agricultural Society of Victoria, the Melbourne Chamber of Mines, the Melbourne Wool Brokers' Association, Institutes and Societies of Archi¬ tects, Accountants, Notaries, Manufacturers and Agri¬ culturists—some twenty-six bodies in all—each sent in a petition to the same effect («).

Having said so much regarding the history of the Bill which has now been brought by the Australian Delegates to London, it may be stated that the Bill,

(«) A list of the petitions presented is given in the Index to the Official Eecord of the Debates of tho Convention, 189S. The petition of the Melbourne and Metropolitan Board of Works (a corporate body elected by the councils of municipalities con¬ taining a population of over 451,000) is a fair specimen of the petitions presented. It will be found in the Appondix to this Article, post, p. 41.



16 JUDICATURE CLAUSES.

which occupies twenty-eight pages of print, is divided into two parts, Part I. containing what are known as the covering clauses, and Part II. the Constitution. The second clause of Part I. is as follows:— *

"II. Act to bind Crown, and extend to the Queen's Successors.—This Act shall bind the Crown, and its pro¬ visions referring to the Queen shall extend to Her Majesty's heirs and successors in the sovereignty of the United Kingdom."

Part II. containing the Constitution is divided into

eight chapters, containing 128 clauses, and the main clauses of Chapter III., which deals with the Judicature, and the precise terms of which we now pass on to examine more closely, are as follows :—

"71. Judicial Power and Courts.]—The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other Federal Courts as the Parliament creates, and in such other Courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so * many other justices, not less than two, as the Parliament -\- prescribes.

*f % # # & * " 73. Appellate Jurisdiction of High Court.]—The

High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament pre¬ scribes, 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:

"n. 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 establishment of the Commonwealth an appeal lies to the Queen in Council:

" in. 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

i,



4

THEIR CONSTRUCTION. 17

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 appli¬ cable to appeals from them to the High Court.

" 74. Appeals to Queen in Council.]—No appeal shall be permitted to the Queen in Council in any matter in¬ volving the interpretation of this Constitution or of the Con¬ stitution of a State, unless the public interests of some part of Her Majesty's dominions, other than the Common¬ wealth or a State, are involved.

"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 Eoyal Prerogative, to grant special leave of appeal from the High Court to Her Majesty in Council. But the Parliament may make laws limiting the matters in which such leave may be asked."

With respect to these clauses, it must be admitted that it is not easy to determine the proper construction to be placed upon them, and already the most divergent views are entertained as to what would be their precise effect, if they became law, upon appeals to the Privy Council.

One important question that arises is: Do these pro¬ visions give a litigant, in a case involving more than

£500, an option to appeal either to the new Federal

High Court or direct to the Judicial Committee of the

Privy Council? It was stated at the Convention by more than one member, and the statements were not contradicted, that the appeal direct to the Privy Council would be practically abolished, and it was even said that " the invariable practice of the Privy Council " was " to refuse to grant leave to appeal until the appellate "

jurisdiction of the Colony was exhausted" (o). The

(o) Speech of Mr. Symon, Q.O., 16th March, 1898, Official Eecord, Vol. 2, p. 2455. He referred to the Garden Gully Mine Case. But in the Garden Gully Mining Co, v. McAlister (1875),

B



1'8 APPEALS FROM STATE COURTS. ^

frequency of appeals direct to the Privy Council from Courts of the different provinces of Canada is alone sufficient to show that no such practice exists; and con¬ siderable doubt must arise as to whether, or to what f extent, these clauses would be held immediately to affect an appeal from the Supreme Court' of any Australian Colony direct to the Privy Council.

Wide as are the terms of Clause 74, it seems very questionable whether any appeals, other than appeals from the new Federal High Court, are within its pur¬ view. But even supposing that its terms should be held to prohibit an appeal to the Queen in Council

from, say, the Supreme Court of New South Wales in "

any matter involving the interpretation of this " Constitution or of the Constitution of a State," and not

involving the public interests of any other part of the Queen's dominions, how can it be held to take away the

existing right of appeal from that Supreme Court to the Queen in Council in any other matter It is conceived that in all cases, of the latter class at any rate—includ¬

ing all actions between private individuals,—the right of appealing direct from the Supreme Court would, for the time being, remain; and, further, it seems very doubtful whether, even in the matters specified in this

clause, such a right of appeal would be abrogated, and

whether, having regard to all the terms of this clause, and also of the whole fasciculus of clauses, the expression " no appeal shall be permitted to the Queen in Council" would not be construed to mean merely "no appeal from the High Court shall be permitted" (p). There

33 Law Times, 408; Law Eeports, 1 Appeal Cases, 39, the objection that the appeal should have been made to the Colonial Appellate Court and not direct to the Privy Council was over¬ ruled.

(p) That the view that these clauses would leave to a litigant the option of appealing from the Supreme Court, either to the new High Court or to the Privy Council direct, prevails largely

4-



A POWERS OF FEDERAL PARLIAMENT. 19

does not appear to be any expression in Clause 73 to make an appeal to the High Court other than per¬ missive.

y Such a question of construction, however, may be regarded as simplicity itself in comparison with others to which the Bill, if passed in its present form, would give rise. To state precisely what the Federal Parlia¬ ment may, and what it may not, do under this Bill would almost puzzle Macaulay's schoolboy. Although, for example, except as provided in Clause 74, the Bill is not to "

impair any right which the Queen may be "

pleased to exercise, by virtue of Her Royal Preroga- " tive, to grant special leave of appeal from the High " Court to Her Majesty in Council," the Federal Parliament "may make laws limiting the matters in " which such leave may be asked "—a truly extra¬ ordinary provision, entirely without precedent, purport¬ ing to limit merely a prerogative right of Her Majesty ; but in fact depriving to an unknown extent her

^ subjects in one part of the Empire of the privilege enjoyed by her subjects in every other part of appealing against an erroneous decision to the Privy Council!

The Bill goes on to confer on the High Court original jurisdiction in certain matters as follows:

" 75. Original Jurisdiction of High Court.—In all matters—

" i. Arising under any treaty:

in Australia is shown by the fact that, in 1898, after the close of the last Convention, the Legislative Assembly of Now South Wales in expressing its objection to these provisions, resolved that appeals from the Supreme Courts should uniformly be taken either to the Privy Council or to the Federal High Court, and not indiscriminately to either; while the Legislative Council passed a resolution that all appeals from the Supreme Courts

F should be taken to the Privy Council: see Wealth and Progress of New South Wales, by Mr. T. A. Coghlan, 1899, pp. 93, 94. These Judicature clauses have not, since the passing of those resolutions, undergone any amendment.

li 2



20 ORIGINAL JURISDICTION OF HIGH COURT. A

"u. Affecting consuls, or other representatives of other countries:

" in. In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party: _ ^

"rv. Between States, or between residents of different States, or between a State and a resident of another State :

"v. In which a writ of mandamus, or prohibition, or an injunction is sought against an officer of the Commonwealth :

the High Court shall have original jurisdiction. " 76. Additional Original Jurisdiction.—The Parliament

may make laws conferring original jurisdiction on the High Court in any matter—

"i. Arising under this Constitution, or involving its interpretation: '' ii. Arising under any laws made by the Parliament:

" in. Of Admiralty and maritime jurisdiction : " rv. Relating to the same subject-matter claimed under the laws of different States.

" 77. Power to define Jurisdiction.—"With respect to any of the matters mentioned in the last two sections, the Parliament may make laws—

" i. Defining the jurisdiction of any federal court other $ than the High Court: V-

" ii. Defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is vested in the courts of the States:

" in. Investing any court of a State with federal juris¬ diction " (q).

It would seem to result from these latter clauses, that if they became law, the existing right of appeal from a

Supreme Court to the Privy Council might be very

(q) The clauses which have now been cited in the text—viz.: Clauses 71, and 73 to 77 inclusive—are the only ones that appear in any way to affect the question of appeal. Of the remaining clauses of Chapter III., § 72 merely deals with the appointment, tenure, and remuneration of the Judges; § 78 with conferring rights to take proceedings against the Commonwealth or a State; § 79 "^ enacts that " the federal jurisdiction of any Court may be '' exercised by such number of Judges as the Parliament pre- " scribes " ; and § 80 deals with trial by jury.



X LOSS OF RIGHT OF APPEAL. 21

seriously curtailed. At the present day, for example, if a cause of action involving, say, £1,000 arises wholly in New South Wales against a resident of Victoria, the

y latter may be sued in the Supreme Court of New South Wales. Under this Bill, the High Court would have

original jurisdiction in such a case (§ 75, iv.), and if the

plaintiff were to elect to bring his action in the High Court, there would be no appeal as of right to any other Court whatever. The litigants would, in that case, be deprived of their existing right to appeal to the Privy Council, and although either or both of them

might still present a petition for special leave to appeal, such leave would not in ordinary cases be granted by the Judicial Committee.

A very material alteration would thus be brought about in the rights of suitors, for there is a very wide difference between the position of a litigant who has, as at present, in all cases involving more than £500, an absolute right to appeal, of which he cannot be

deprived, and that of one who would have in any case to

petition the Privy Council for special leave to appeal; yet to judge from comments made from time to time in the press and elsewhere, this difference appears to be one which is not fully realized by the general public. According to the practice of the Judicial Committee, special leave to appeal is refused unless the case involve matter of public interest or some important question of law, or be otherwise of some public importance, or of a very substantial character (r). It is obvious, there¬

fore, that although a case may be of very serious im¬

portance to the litigants, if the present right of appeal

(r) See the case of Prince v. Gagnon (1882), Law Reports, 8 Appeal Cases, 103. The decision in that case of the Supreme Court of the Dominion of Canada involved £1,000, but it was not clear that any parties beyond the litigants were interested in it, and special leave to appeal was refused by the Privy Council.

\



22 LIMITING REDRESS OF GRIEVANCES. X

be taken away all hope of appeal will be gone, unless the case happens to fall, as it rarely does, within the small category of cases in which special leave to appeal will be granted.

The plaintiff, it is true, might in many cases still

bring his action in the Supreme Court of New South

Wales, instead of in the High Court, but of this right he might at any time be deprived, since it would be

competent for the Federal Parliament to make the

jurisdiction of the High Court in such a matter exclusive (§ 77, ii.).

But the Bill goes a step further, and proposes that it shall be competent for the Federal Parliament to limit the matters in which leave of appealing from the High Court may be asked, and thus in any matters specified by the Parliament—however large may be the amount in dispute, however important may be the question of law involved in the decision, however seriously it may affect the public interest—to prohibit the litigants from even presenting a petition to the Privy Council for

special leave to appeal; see end of § 74 (s). But is it likely, it may be asked, that the Federal

Legislature would attempt such a prohibition Would not the public importance of a subject be sufficient reason for preserving an appeal to the Privy Council A glance at the first sentence of Clause 74 of this Bill indicates what should be the reply to these questions. Can any matters be of greater public importance than matters " involving the interpretation of this Consti- " tution or of the Constitution of a State?" Is it not well known that many of the most important decisions of the Judicial Committee in Canadian cases have turned on the construction of their Constitution—the British North America Act, 1867? A large number

(s) Ante, p. 17.

J>-



X APPEALS ON CONSTITUTIONAL LAW. 23

}

of these cases are collected and commented on in Mr. Todd's well-known work on Parliamentary Govern¬ ment in the Colonies, the high authority of which is

widely recognised; and it is with special reference to these cases that Mr. Todd writes: " The foregoing " decisions are of inestimable value in the construction " of the written Constitution conferred upon Canada by " the British North America Act. They lift out of the " narrow groove of a mere technical interpretation "

principles of legislation concerning which Canadian " statesmen, whether federal or provincial, need to be "

accurately informed, and should be agreed upon. "

Vigilance, and the exercise of judicial impartiality by " legal tribunals, is equally indispensable to prevent " encroachment by the Dominion Parliament upon local "

rights—which have been assigned by imperial autho- "

rity to the guardianship and control of the Provincial "

Legislatures—and to prevent invasion by Local Legis- " latures of the powers which appertain to the supreme "

jurisdiction of the Dominion Parliament" (t). With

respect to the decisions of the Privy Council on matters of this kind, Sir John Bourinot writes:—" As long as " this Imperial Court is composed of men of the highest "

learning—and it is very rarely this is not the case— " it is a positive advantage to the people of Canada and " of all the other dependencies of the Crown to have " its independent decision on constitutional questions of " moment. In the Australian Convention [of 1891] " doubts were expressed as to the necessity of this " reference, when the new federation will have a "

Supreme Court of its own, but it would be a serious " mistake to ask the Crown to give up entirely the " exercise of a prerogative so clearly in the interests of

(t) Parliamentary Government in the British Colonies, by Alpheus Todd, L.L.D., O.M.G., 2nd ed. (1894), pp. 574, 575.



24 BENEFITS OF RIGHT OF APPEAL.

" the Empire at large "

(u). Yet it is precisely matters

falling under this category which are expressly excluded from appeal by Clause 74 of the present Bill (v).

Is it not, then, evident that, whatever may be the

proper construction to be placed upon the Judicative clauses of this Bill—and every candid reader will be

ready to admit that their construction is by no means clear—the assurances given to the Convention by several of the Delegates, that the clauses are in all important respects similar to the provisions regulating appeals from Canada, were not only misleading, but altogether erroneous

The advantages of the existing right of appeal are thus stated by Mr. Todd:—" The appellate jurisdiction " of the Queen in Council is retained for the benefit of " the Colonies, not for that of the mother country. It " secures to every British subject a right to claim re- " dress of grievances from the throne. It provides a " remedy in certain cases not falling within the juris- " diction of ordinary courts of justice; it removes " causes from the influence of local prepossessions; it " affords the means of maintaining the uniformity of

(u) Paper on The Canadian Dominion and proposed Australian Commonwealth: a Study in Comparative Politics, read by Sir John (then Mr.) Bourinot, K.O.M.G., LL.D., D.C.L., Lit. D„ before the Eoyal Society of Canada, loth May, 1895, republished from the Transactions of the Society, 1895, see p. 27; sold by Bernard Quaritch, London. The pajier contains a learned and instructive comparison of the Australian Bill of 1891 with the Canadian Constitution.

(v) In the first of two able and interesting articles on this Bill by Mr. A. H. F. Lefroy in the Laxo Quarterly Review for 1899, Vol. 15, p. 164, concerning this provision in § 74, he says : " Ali I would say with regard to that provision is that the '' Canadians would have had much cause to regret it if any such '' provision had been contained in their Constitution; for the " work that has been done in construing and elucidating the " latter and developing its underlying principles by such men " as Sir Montague Smith and Lords Shand, Watson, Herschell, " and Davey, sitting as members of tho Judicial Committee, " has been invaluable."

I



A CHERISHED RIGHT. 25

i

k

" the law of England in those Colonies which derive " the great body of their law from Great Britain ; and " it enables suitors, if they think fit, to obtain a decision " in the last resort from the highest judicial authority " and legal capacity existing in the metropolis. It is " true that in a Colony which possesses an efficient " Court of Appeal it may be seldom necessary to have " recourse to this supreme tribunal. Nevertheless its "

controlling power, though dormant and rarely in- " voked, is felt by every Judge in the Empire, because " he knows that his decisions are liable to be submitted " to it. Under such circumstances, it is not surprising " that British Colonists have uniformly exhibited a "

strong desire not to part with the right of appeal " from Colonial Courts to the Queen in Council" (x).

It is now proposed further to consider this subject of

appeal under the following heads :— 1. The preservation of a connecting link between the

Colonies and the mother country. 2. The uniformity of law throughout the Empire. 3. The strength of the Judicial Committee

Court. 4. Their freedom from local bias. 5. Their controlling influence over local tribunals. 6. Expense and delay in connection with appeals.

as a

1. The Preservation of a Connecting Link between the Colonies and the Mother Country.—The value of retain¬

ing the right of appeal to the Privy Council as a con¬

necting link between the Colonies and the mother

country has already been touched upon. The idea of the federation of the whole British Empire is s'.ill in its infancy, but it is an idea which is growing, and

(a;) Parliamentary Government in the British Colonies, 2nd ed. 307.



26 A CONNECTING LINK. X

which has great possibilities in the future. Nothing that has occurred has done more to bring it into the

region of practical politics than the unanimity and enthusiasm displayed by all the Colonies in taking their part in the present war in South Africa. The close connection that has always existed between the Colonies and the Privy Council, dating from those early days when the various plantations and Colonies formed part of the demesne of the Crown, and were administered by the Sovereign in Council, seems to render it probable that in the future development of the federation of the Empire the Privy Council will

play a not unimportant part (i/). In 1897 the Premiers of the leading Colonies were added to the list of Privy Councillors, and it would be possible in the future to add to their number and summon them to a Council on

Imperial affairs. The functions of such a Council, it is true, would be quite distinct from the ordinary functions of the Judicial Committee of the Privy Council, but to

abrogate the right of appeal which has so long existed [* would be to take a step which would render any de¬

velopment of a still closer connection with the Colonies

by means of the Privy Council a matter of far greater difficulty.

2. The Uniformity of Law throughout the Empire.— The importance of retaining the right of appeal in order to secure the uniformity of law throughout the

Empire is manifest, and as trade and commerce increase and the bonds between various parts of the Empire become more numerous, the necessity for such uni¬

formity grows greater. The mischiefs likely to arise

(y) This aspect of the question is discussed at some length in N an interesting article on The New Australian Commonwealth and the Privy Council, by the Hon. Harold G. Parsons, M.L.O., in Blackwood's Magazine for November, 1899.



X UNIFORMITY OF LAW. 27

from creating a new Court of Final Appeal for one part of the Empire are well illustrated in the passage already quoted from the speech of Sir Henry Wrixon (a). Moreover, certain statutes—notably large portions of the Merchant Shipping Act—apply to the whole of the Queen's Dominions. Other statutes, such as those

relating to company law, to partnership, and to bills of

exchange, have been adopted in the principal Colonies. The inconvenience of having different constructions

placed upon the same enactment is too obvious to require comment, and it is clear that uniformity of construction can only be secured by having one para¬ mount Court (a). "Nothing is more desirable," said Mr. Chamberlain, when addressing the Premiers of the self-governing Colonies at a Conference in London on 24th June, 1897, and calling their attention to the then proposed Australian Federation Bill— "

nothing is more desirable, in the interests of " the Colonies, in the interests of the United Kingdom " and of the British Empire, than an uniformity of " law, and that uniformity can only be obtained by " occasional appeals to the highest tribunal, settling " once for all the law for all parts of the Empire; and " I confess I think it would be a great loss to the " Colonists if they surrendered the opportunity of

(z) Ante, pp. 11-12. (a) As an illustration that such an inconvenience is not

unlikely to arise, the case of Trimble v. Sill (1879), Law Eeports, 5 Appeal Cases, p. 342, may be cited. The action turned upon the construction of a New South Wales enactment made in tho same torms as an Imperial enactment. The Supreme Court, by a majority, preferring to follow a previous decision of their own Court rather than a recent decision of the English Court of Appeal, decided in favour of the defendant, a decision which was reversed in the Privy Council. It may be said that an Australian Court of Appeal might likewise have reversed the decision of the Supreme Court, and thus restored tho uniformity of construction, but it is also obvious that it might not.

A



'28 STRENGTH OF JUDICIAL COMMITTEE.

" getting this judicial decision upon difficult and com-

" plicated points of law, which from time to time may

"arise in the local Courts "(b). These observations were read to the Convention of 1898, by Sir Joseph Abbott («), but unhappily the suggestion made by the

Colonial Secretary passed unheeded by the majority of

the Delegates.

3. The strength of the Judicial Committee as a Court. —It seems hardly necessary to state that the Judicial Committee is constituted of the most eminent Judges, all of whom have had very wide experience of cases of the most complex and important character; that the Lord Chancellor and Lords of Appeal in Ordinary frequently sit, and that, speaking generally, the Board is composed of the same members as sit judicially in the House of Lords. " It is no disrespect to the Austral- " asian Benches," wrote a distinguished New Zealand

Judge of long experience, " to say that the chances are

" against our being able to furnish a Court of Appeal

" equal in legal attainment to the highest English

" Courts. The present area of selection for " the Bench is a very narrow one. English Judges, on " the other hand, are taken from amongst the leaders " of a numerous Bar. They have had their ability " tested in practice at the greatest business centre in " the world, and have succeeded in a competition with " which the Colonies have nothing to compare. "The public," added the learned Judge, "is more

(b) Proceedings of a Conference between the Secretary of State for the Colonies and the Premiers of the Self-governing Colonies, at the Colonial Office, London, June and July, 1897, presented to Parliament, 31 July, 1897 [c. 8596], p. 7.

(c) Official Eecord of Debates, 1898, Vol. 2, p. 2294. Sir Joseph Abbott, K.O.M.G., has been Speaker of the New South Wales Legislative Assembly since 1890. He is a solicitor by profession.

i



> FREEDOM FROM BIAS. 2&

" interested than it knows in maintaining the highest " scientific standard in the administration of the law "

(d). " The Supreme Court of Australia," wrote the late Sir

f Lambert Dobson, Chief Justice of Tasmania, " cannot " be as powerful a Court as the Judicial Committee of " the Privy Council. Judges of the same experience " and ability as those who form the Judicial Committee " are not to be found in Australia" (e).

" Can it be "

suggested," asked Sir Joseph Abbott, at the Conven¬ tion in 1898, " however high the Federal High Court "

may be in regard to attainments, that under any " circumstances, the Judges of that Court would have " the experience, the training, and the knowledge of " the men composing the Court of the Privy " Council ?"(/)

4. The freedom of the Judicial Committee from local bias.—To have the highest Court of Appeal altogether removed from local influences is a consideration, the value of which can hardly be overstated. This aspect of the subject was presented to the Convention by Mr. Carruthers, who said: " In these small communities " there is always actuating men in public life, even on " the judicial bench, an unconscious bias, whereby their " minds and their decisions are (it is likely to be said) "

prone to be affected. We know that we can trust " our Judges in all cases, but still, in small communities " such as this, it is no wrong thing to say that— "

through our surroundings and acquaintances, and "

through almost every man in the community know- " ing everybody else, through our small public life, and

(d) Those and other weighty observations are contained in the letter of the late Mr. Justice Richmond, which was fre-

y quently referred to in the Debates in Australia, and which will be found printed at length in the Appendix, post, p. 43.

(e) Official Eecord of "Debates, Adelaide, 1897, p. 969. (/) Official Eecord of Debates, 1898, vol. 2, p. 2289.

A



30 LOCAL BIAS.

" our small circle in social life—men are so well known " to one another, and things that influence people in "

public and private life are so widespread and so active, " that men are apt to be biased by these influences; " and, even if they are not biased, they are apt to have " their decisions questioned, because bias will be " attributed to them. Even where there is not actual " bias, there is often unconscious bias, which makes a " man give his decision, if not in a manner opposed to " the evidence before the Court, at all events with the " influences I have referred to affecting his mind. "

Judges have to try cases in Australia, and very often " before the cases come before them, they know a good " deal as to the private life of litigants. Consequently, "

they sit on the Bench with a certain amount of un- " conscious bias "(g). Mr. Carruthers proceeded to

point out how the Judges may be unconsciously in¬ fluenced by reading debates in the local parliaments, or

by having in a hundred other ways become aware of facts not brought judicially before them. Those familiar with the numerous cases in which the decisions of local tribunals have been reversed in the Privy Council will call to mind not a few instances tending to

support this line of argument. There is, too, some danger, especially in times of

public excitement, for the Executive to bring pressure on the Judiciary (h). Without dwelling on the glaring instance in the Transvaal, the attempts, more or less successful, made at various times in the United States to " load " the Bench, would never have been even con¬

templated had there been an appeal to some paramount Court. On this point Mr. Carruthers said :—" You will

(g) Official Eecord of Debates, 1898, Vol. 1, p. 326. (h) This danger is forcibly pointed out in Advanced Australia:

a Short Account of Australia on the Eve of Federation, by W. J. Galloway, M.P. (Methuen & Co.), 1899, pp. 176—179.



> CONTROL OVER LOCAL COURTS. 31

never get a Court so free from these influences which render it liable to attack, so free from local bias and control, either by the Legislature or the Executive, as the Privy Council is. We can never imagine that the Privy Council will be influenced by the state of parties in Federated Australia. We can never

imagine that a Government will swamp the Privy Council; we can never imagine that such an occur¬ rence could take place as in America, which led to a

judicial scandal. The Privy Council will be, in all truth, the bulwark of our Constitution, being so far re¬ moved from the party conflicts and those things which create party conflicts in Federated Australia" («').

5, The Controlling Influence of the Judicial Committee over Local Tribunals.—As bearing closely on the main¬ tenance of the uniformity of law must be considered the controlling influence exercised by the Judicial Com¬ mittee over local tribunals. There can be no doubt that this controlling influence is very great, and that it affects numberless cases besides those in which there are

appeals. The knowledge that their decrees are subject to review cannot, so long as Judges are human, fail to have a restraining and salutary effect. Nor is the

efficacy of this corrective power by any means confined to cases in which large sums are involved, for the prin¬ ciples laid down in a case involving thousands of pounds have equally to be applied to small matters (k).

6. Expense and Delay in connection with Appeals.— The expense incurred and delay involved in bringing

(i) Official Eecord of Debates, 1S98, Vol. 1, p. 323. (h) The argument, used by some of those Delegates in the

Australian Conventions who wished to abolish appeals to the Privy Council, that the right of appeal only affects wealthy litigants clearly seems on this ground to be fallacious.



32 EXPENSE AND DELAY. ^

appeals are necessarily matters of grave consideration, and if a Court of Appeal could be created which would

satisfactorily administer justice with greater expedition and at less cost than is possible under existing arrange¬ ments, it would afford a strong argument for its creation. The Delegates who advocated abolishing appeals to the Privy Council represented the expense and delay as very great, and tables were prepared showing the respective dates of judgment in the

Supreme Court and in the Privy Council (I). It was, however, subsequently shown that much of the delay was due to the procrastination of the parties themselves— in one case, for instance, the transcript was not forwarded to London for over three years and a half (m); and other tables were prepared showing the dates of for¬

warding the record of proceedings as well as of final

judgment. The tables relating to Victorian appeals show that

there were seventy appeals in thirty-nine years; that

during the last thirty-three years the average time from ^ N the date of the order of the Supreme Court giving leave to appeal to the date of the judgment in the Privy Council was one year and nine months; that during the last seventeen years the average time from the post¬ ing of the record to the date of judgment in the Privy Council was one year and one month; and that the

average taxed costs during these seventeen years amounted to £273 (n).

No table is given relating to New South Wales

appeals; but from figures supplied from another source, it appears that during the last ten years in thirty cases,

(I) Proceedings of the Convention, 1898, p. 259. (m) See speech of Sir J. Abbott, Eocord of Debates, 1898,

Vol. 2, p. 2291. (n) Proceedings of the Convention, 1898, p. 267. Appeals T1

dismissed for want of prosecution are not included in the above- mentioned averages.



X COSTS OF APPEALS. 33

chiefly from that Colony, the average time from the

receipt in London of the record to the date of judgment in the Privy Council was nine months and a half, and the average gross costs amounted to £317. Eliminating three cases which involved an unusual amount of work, the average gross costs of twenty-seven appeals came to £277. The average of taxed costs in the thirty cases would amount to about £282, and in the twenty- seven cases to about £242. "Roughly, the average " risk as regards costs in England of the unsuccessful "

litigant is amply covered by £500, whilst the success- " ful litigant may regard £35 as sufficient to meet a " similar risk" (o).

For some years past the majority of Colonial appeals to the Judicial Committee have come from the Supreme Courts of Australasia and Canada. During the five years ending in 1897, eighty-nine appeals have been entered from Australasia:—Fifty-one from New South

Wales, fourteen from Victoria, eleven from Queensland, nine from New Zealand, three from Western, and one from South Australia. During the same period fifty- four appeals have been entered from Canada:—Eighteen from the Supreme Court of the Dominion, and thirty- six direct from Provincial Courts (p). The proportion of Colonial judgments which were affirmed in the cases heard and determined is about fifty-four per cent. (q).

Speaking generally of appeals to the Judicial Com¬ mittee both from India and the Colonies, it has been stated on high authority that the costs "

may be taken

(o) See letter of Mr. George M. Light in the British Austral¬ asian of 9th November, 1899. I am indebted to Mi'. Light for supplying me with the figures on which these calculations are

I

(p) See the table printed in Appendix, post, p. 52, the figures in which are taken from the Judicial Statistics, England and Wales, 1893 to 1897, printed by the Queen's Printers yearly, 1895 to 1899.

(q) See tables in Judicial Statistics, ibid. C



34 COUNSELS' FEES. -<

" to be about £300—the sum usually fixed as security " for costs—though sometimes they may not in fact " reach £200, and sometimes may exceed £500 or "£600 "(»). -

Coming next to the comparative cost and delay likely to attend the bringing of appeals to an Australian Court of Appeal, the following opinion of the late Sir Lambert Dobson, Chief Justice of Tasmania, was read at the Adelaide Convention of 1897: " The appeal " would be more expensive. Counsel from the different " Colonies would probably attend the Supreme Court " to argue the appeals from their Colonies. The expense " of counsel coming from one Colony to another, and " so abandoning and losing business in his home Colony, " is heavy; 150 guineas is the lowest sum paid for " counsel coming from Melbourne to Tasmania, and I " have known £800 paid. Now, in England, £25 to " £50 are fair leaders' fees in ordinary appeals to the "

Privy Council. Again, the solicitors' costs in England " are, as well as the counsel's fees, more moderate than | " those charged and allowed in Australia. Delay may " be urged against the Privy Council, but, except as to " the time taken in transmitting the papers to England, " which is insignificant, the probability is that solicitors " and counsel in England act with at least the same "

promptness that is likely to be shown in Australia. " The Privy Council does not sit during the Long " Vacation, nor will the Supreme Court of Australia sit " continuously"^). With regard to the above-men¬ tioned fees, it would probably be more correct at the

present day to say that 50 to 75 guineas are fair leaders' fees in ordinary appeals to the Privy Council; but this still leaves a wide margin between them and the fees

w (r) Judicial Statistics, England and Wales, 1894, with Intro- *

duction by Master Macdonell, printed by the Queen's Printers, 1896, p. 24.

(s) Official Eecord of Debates, Adelaide, 1897, p. 969.



V- '

EXPENSE AND DELAY IN AUSTRALIA 35

mentioned by the Chief Justice as prevailing in the Colonies.

With regard to the expense of appealing to the new Federal High Court, it is not immaterial to bear in mind that (by way of compromise on the much-vexed question as to where the seat of government is to be) it is pro¬ vided by Clause 25 that the seat of government shall be in New South Wales, and distant not less than 100 miles from Sydney, and that meanwhile the Parliament (and we may assume the High Court) shall sit at Melboiu-ne until it meets at the seat of government. Very many colonists living in Western Australia, Tasmania and New Zealand, appear fully to realize that bringing an appeal to an inland town of New South Wales, or even to Melbourne, is likely to be a very poor economy for them [t).

At the Convention in Melbourne in 1898, Sir Joseph Abbott said that during an experience of five-and-thirty years he had obtained as great and intimate a know¬

ledge in regard to these appeals as any man in the

community, and pointed out that according to the returns furnished of appeals to the Privy Council the

delays were not greater at all events than existed in the Courts of New South Wales, where matters of great importance frequently remained undecided for twelve or fifteen months. When the transcript of the pro¬ ceedings

" reaches London, the solicitors there have to " enter the case for hearing. There, again, is delay, " and always in these great cases there must be delay, " because both parties are unwilling to go to the Privy " Counoil, and are trying their very best to secure a

(t) The writer has known of a fee of 1,200 guineas being paid to a leader practising in Sydney to argue a case in Brisbane.

/ Of course, the fact that a leading counsel is taken away from 1>r his work for some time while travelling a long distance, and

may have to refuse a good deal of other work, has to be taken into account in fixing the fees.

c2

I



36 DELAY. <x

" settlement of the case." On the question of expense, he confirmed the view already quoted of Sir Lambert

Dobson, and estimated that, taking into account counsel's

fees, travelling expenses and other things, " the costs of

" an appeal to the Federal High Court would be four or " five times greater than the cost of an appeal to the " Judicial Committee" (it).

That a certain amount of delay is often unavoidable in important appeals, and occasionally beneficial to the

parties in leading to a settlement of their dispute, is a matter which is sometimes overlooked. It would clearly not be right for a Court of Final Appeal to allow one

party to force on an appeal with undue haste. If a

respondent does not immediately enter an appearance, a reasonable time must be allowed for him to do so, and again some allowance of time must be made for

settling, printing and lodging the " case" of each party, in which he sets out the facts on which he relies and his reasons for submitting that the decision of the Court below ought to be reversed or affirmed. That there I 1 ' might with advantage be greater dispatch in dealing with some of the appeals brought before the Judicial Committee is true, and the number of appeals entered

appears to be larger than can at all times be promptly dealt with by their Lordships, most of whom have also to hear the appeals to the House of Lords (v). Taking the actual delay, however, and comparing it with the

delay occurring at present in Australian Courts, there seems little reason to suppose that important appeals

(u) Eecord of Debates, 1898, Vol. 2, pp. 2286 et seq. The whole of Sir J. Abbott's speech is well worthy of perusal. See also the paragraph numbered 7 of Mr. Justice Eichmond's letter, printed in Appendix, post, p. 48.

(y) Although from this cause the delivery of judgments is sometimes delayed, it should be mentioned that every appeal is ' >_ put into the list for the next Sittings as soon as it is ready for hearing, and that at each of the Sittings all the cases in the list come on for hearing. There are probably very few Courts in which a like promptitude is displayed.



V ONE FINAL COURT OF APPEAL. 37

would be heard and determined in the new Federal High Court with any greater promptitude.

The endeavour made by Lord Selborne by means of j. the Judicature Act of 1873 to create a single Final

Court of Appeal to take the place of the Judicial Committee and of the House of Lords as well as to

discharge the duties now performed by the English Court of Appeal, was never carried into effect, the operation of the enactments being first postponed and then repealed (a). There seems a good deal to be said in favour of the idea of making the Judicial Com¬ mittee and the House of Lords into a single tribunal for hearing appeals from all parts of the Empire. It would at least put an end to the suggestion sometimes made that the tribunal which decides appeals from British and Irish Courts is superior to the tribunal

-^ which decides appeals from India and the Colonies (b). " At present," wrote Mr. Justice Richmond, " the

" Judicial Committee appears to be overloaded with % " work. If the Committee wants strengthening in

" point of numbers so as to be able to sit in two or

" more divisions, the British Parliament is bound to

(a) See §§ 20, 21 and 55 of the Judicature Act, 1873; § 2 of tho Act of 1876, which postponed their operation, and § 24 of the Appolfate Jurisdiction Act, 1876, by which they were repealed.

(b) As a matter of fact, almost all the members who usually sit in the Judicial Committee also sit in the House of Lords. It may bo worth pointing out in this connection that if such a fusion as is suggested were to take place and a new Final Court of Appeal were created, and it was intended that appeals from the Supremo Court of the Dominion of Canada should be hoard and determined by the new Court, it would seem to be necessary to repeal or amend § 71 of the Canadian Supreme Court Act, 1875 (38 Vict. c. 11), which enacts as follows :— " 71. The judgment of the Supreme Court shall, in all cases, " bo 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." [38 Vict. c. 11, s. 47.]



38 NEED OF MORE JUDGES. -\

" find the means. Indian appeals which seem to take " up a great deal of time might, one would think, be " dealt with by a separate division. There can be no "

good reason why appeals should not be much accele- " rated.

" 8. Although several eminent judges have been "

amongst those who regularly sit on the Judicial Com- " mittee, the Court has not maintained the extraordi- "

nary authority it had with the profession during the "

years when Lord Kingsdown commonly presided over " it. Looking to the present importance of the Colonies, " and, I venture to say, to the learning of Colonial "

lawyers, it is not satisfactory that any but the most " eminent in the profession should sit as Judges of "

Appeal from Colonial Courts. It is unfortunate that " the attempt to constitute a single Court of Appeal " for the whole Empire did not succeed. The Colonies " have, I conceive, a right to ask that the ultimate "

appeal from Colonial decisions shall be to the same " tribunal, whether the House of Lords, or some Court ^ " to be substituted for the House of Lords, as deals " with appeals from the English Courts "

(c). It does not seem, however, that a fusion of the two

highest appellate tribunals would do much to expedite appeals unless the number of Judges were increased. The number of Judges available at the present time is

very small; and it certainly seems undesirable that the tribunal of final resort should be constituted, as is some¬ times now the case, of so small a number as three, or even four, Judges (d). In former years there have some¬ times been two or three ex-Lord Chancellors of England available for the highest class of judicial work. To¬ day there is no one living who has held that high office

except the present Lord Chancellor. The step taken >, (c) The whole letter is printed in the Appendix, post, p. 43. (d) It is to be noticed that the present Bill contemplates that

the High Court of Australia may consist of only throe Judges: § 71, ante, p. 16.



y- THE MONEY DIFFICULTY. 39

rp' r

X

some three or four years ago of adding three Colonial

Judges to the Judicial Committee—the Chief Justices of Canada, of South Australia, and of Cape Colony— beyond the compliment conveyed, has had but small effect. Having still to discharge their judicial functions in their own Colonies, they are rarely seen at Whitehall, where they can only attend for a short time and at

long intervals. Until some adequate salary is provided for these gentlemen, independently of their salary as Chief Justice—which has not yet been done—and they are thus enabled to retire from active work in their

respective Colonies, the mere addition of their names cannot be regarded as effectively adding to the strength of the Judicial Committee (e). The difficulty of adding to the judicial strength of the Privy Council, and of the House of Lords, in order that there may be no avoidable delay in coping with the numerous and im¬

portant eases with which their Lordships have to deal, which is certainly a matter of grave moment, appears to be chiefly a money difficulty. Considering the im¬

portance of the issues involved, and the strong feeling existing at the present time throughout the Empire— and nowhere stronger than in the Colonies—that what¬ ever step be taken, the object in view should be to

strengthen rather than weaken the connecting links between its component parts, it is to be hojDed that those in authority will not deem the difficulty of pro¬ viding adequate funds an insuperable obstacle to main¬

taining this strong bond of union.

10th April, 1900.

(e) See the observations of Mr. Chamberlain in the Proceed¬ ings of a Conference between the Secretary of State for the Colonies and the Premiers of the Self-governing Colonies, at the Colonial Office, London, June and July, 1897, presented to Parliament, 31 July, 1897 [c. 8596], pp. 6-7.



CONTENTS OF APPENDIX.

PAGE Petition of the Melbourne and Metropolitan

Board of "Works in favour of reserving the

existing right of appeal to the Privy Council 41

Letter of Mr. Justice Eichmond 43

Observations thereon of Mr. A. Inglis Clakk 50

Table oj? Appeals, 1893—1897 52

L

r



y

X

Y

U^titum IN FAVOUR OP EESEEVING EXISTING EIGHT OP

APPEAL TO THE PEIVY COUNCIL.

The following petition was read in the Convention on the 4th March, 1898 (a). A large number of similar

petitions were presented on the same day (b).

To the Eight Honourable the President and the Members of the Australasian Federal Convention, in Session assembled.

The petition of the Melbourne and Metropolitan Board of Works, humbly showeth,—

That your petitioner is a body corporate created by Act of the Parliament of Victoria, composed of representatives elected by the councils of the City of Melbourne and the municipal councils of the other twenty-three cities, towns, boroughs, and shires of the metropolis of the said Colony, which comprises an area of about 160 square miles, with a population of more than 451,000, who will be responsible for rates to be levied by your petitioner.

That the principal duties assigned to your petitioner are to manage and extend the water supply of the said metro¬ polis, and to undertake the sewering and draining thereof.

That in relation to the former of the said duties your petitioner is charged with liability to the Government of Victoria for a sum of £2,359,156, the balance of money lent for construction of the waterworks by creditors who are mostly resident in Great Britain. And for extension of the said works, and to sewer and drain the metropolis, your petitioner has borrowed £3,893,580 upon debentures, the holders of a large proportion of which reside in the United Kingdom.

{a) Official Eecord of Debates, 1898, vol. 2, pp. 1865, 1866. (b) Ibid. p. 1870.



42 PETITION. ^

That your petitioner will need to borrow upwards of another million of money for completion of the work now in hand, and will need to borrow successive millions at recurring intervals hereafter to meet the obligations so entered into.

That in expending the money so borrowed, and the revenue from water supply, your petitioner has entered into very many contracts and engagements with individuals and firms in this Colony, New South Wales, and England. That those obligations, contracts, and engagements have been entered into with the mutual knowledge and con¬ fidence of both parties that, in the event of litigation arising out of them, recourse for the final settlement thereof could be had to the highest tribunal of the Empire, Her Majesty the Queen in Council.

That, as your petitioner is informed, and believes, it has been decided by your honourable body that by the Bill for federating the Australasian Colonies, which is under consideration, such right of appeal to the Sovereign shall be abolished.

That, as your petitioner respectfully submits, such abo¬ lition, if enacted and made law, would seriously derogate from the existing rights of creditors and contractors with your petitioner on the one hand, and of your petitioner on the other, and would materially weaken the credit and put a difficulty in the way of your petitioner when floating loans in the United Kingdom, as it will be necessary for your petitioner to do hereafter.

That apart from the aforesaid considerations, in so far aS your petitioner represents and can speak for the inhabitants of the metropolis, your petitioner respectfully submits that to take away the right of Her Majesty's subjects in Australasia to appeal to Her Majesty is to break a connecting link between Australasia and the mother country, and that the binding of the Australasian Colonies together does not necessitate, and ought not to be made the occasion for, in any way, unbinding Australasia from England.

Your petitioner, therefore, humbly prays that your honourable body will be pleased to reconsider the question of the Highest Court of Appeal, and to strike out of the Bill for federating certain of the Australasian Colo¬ nies the clause which would deprive Her Majesty's subjects in Australasia of the right of appeal to Her Majesty.

And your petitioner will ever pray.

£

i



/^

Y

LETTER OF ME. JUSTICE RICHMOND.

The following letter was sent by Mr. Justice Bich- mond to Sir Henry Parkes, President of the Convention of 1891, and was ordered to be printed (a).

Wellington, New Zealand, 11 March, 1891.

My dear Sir Henry Parkes, Although I have not had the advantage of a per¬ sonal introduction to you, I make no doubt that you will

excuse my addressing you on a subject of interest and importance to the whole of Australasia. It is one of which I may claim to have some special knowledge, being now in the twenty-ninth year of my service as a Judge of the Supreme Court of New Zealand, and having previously had some executive experience as a Colonial Minister. The subject I refer to is the proposal now made at Sydney to establish an Australian Court of Appeal, whose decisions shall not be subject to review by the Judicial Committee of Her Majesty's Privy Council.

Of course this is at present a mere proposal; and I cannot but think that, on deliberate consideration, good reason will appear for not insisting upon it.

1. The first and most obvious objection is one which must necessarily have occurred to yourself, and to any other Statesman who has given the matter a thought. British capital is, and it is to be hoped will continue to be, largely invested in these Colonies. It appears, therefore, to be a perfectly reasonable demand on the part of the mother country, that any British subject feeling himself aggrieved by the decision on his civil rights of a local Court shall, if the case be of sufficient importance, have his right of final appeal to an Imperial tribunal. How¬ ever fair Colonial judges and juries may have shown them-

(a) Official Eecord of Proceedings and Debates of Convention, 1891, pp. exci. to cxciv.

5 "l



44 MR. JUSTICE RICHMOND. J

selves, it is inevitable that persons resident in the United Kingdom, or in other Colonies, who should find them¬ selves worsted in litigation before a Colonial Court from which there was no appeal would, in many cases, both feel and express a doubt that justice had not been done them, and would be ready to impute the decision against them to local prejudice and favouritism.

It always makes things plainer to give an example of the working of a principle, and I will, therefore, shortly state a recent case in this Colony. A large ship, owned by an English shipping company, with a valuable cargo, was lost in attempting to leave the artificial harbour of Timaru, in the South Island. The accident was attributed by the company, or its underwriters, to the negligence of an officer of the Timaru Harbour Board, and an action for damages was accordingly brought in the name of the company against the Board. The issues of fact weie tried by a Wellington jury, and a verdict was returned for the plaintiffs for about £40,000, the value of ship and cargo. This, however, was subject to a large number of reserved points of law, which were subsequently argued before our New Zealand Court of Appeal. Two judges, out of three who formed the Court, upheld one of these objections as fatal, and gave judgment setting aside the verdict. But a considerable proportion of the costs was thrown by our judgment on the defendant Board as having failed on the f main issues of fact. The shipping company appealed, as h was of course expected, to the Privy Council; and Lords Halsbury and Bramwell sat with the ordinary members of the Judicial Committee to hear the case (A). The argu¬ ment occupied five days. Finally a reserved judgment was given upholding the decision of the New Zealand Court of Appeal on a wider ground than we had taken, and charging the appellant company with the entire costs of the proceedings. Now, in a case of this kind, it is obvious that the result, from a public point of view, is far more satisfactory than it would have been had the plaintiff company been compelled to submit to the Colonial decision in favour of the local body as final. It is more satisfactory to the people of both countries concerned; more satisfactory to the members of the Colonial tribunal— I should say the same if the decision had been the other way; more satisfactory even to the defeated litigants—in

r (6) The case is reported as Shaw, Savill and Albion Company

v. Timaru Harbour Board, (1890) Law Eeports, 15 Appeal Cases, 429.



V MR. JUSTICE RICHMOND. 45

this respect at least, that they must feel that justice, so far as attainable in Courts of law, has been done them.

To quit this part of the subject: It is to be expected that the proposed measure, if ever carried, must have a

_ prejudicial effect on the financial interests of these Colonies. The confidence with which investments of all sorts are now made in Australasia by people at home must be largely due to the knowledge that rights of property will be dealt with here by the law Courts on British principles of justice, and subject to final review by one of the highest English Courts. I conceive that this con¬ fidence must certainly be impaired if we constitute our¬ selves a foreign country in regard to the administration of justice.

2. The decisions of a Colonial Court of ultimate appeal would not only give less satisfaction to an important class of litigants. Such decisions would in all probability be less satisfactory to litigants in general, and intrinsically less satisfactory. It is no disrespect to the Australasian Benches to say that the chances are against our being able to furnish a Court of Appeal equal in legal attainment to the highest English Courts. Of course, we may produce great jurists here, and, please God, we shall. But the present area of selection for the Bench is a very narrow one. English judges, on the other hand, are taken from

1 amongst the leaders of a numerous Bar. They have had ~\ their ability tested in practice at the greatest business

centre in the world, and have succeeded in a competition with which the Colonies have nothing to compare. The composition in late years of the Judicial Committee may not have been entirely satisfactory—on that subject I have a word to say—but important appeals to the Queen in Council are generally attended by some of the most eminent English judges.

3. It would be a dead loss to both Bench and Bar if the legal standard to which we have now to submit ourselves were removed—as in great measure it would be were decisions here rendered final. I should be sorry to see the judgments of lawyers reared in our comparatively narrow circle become our most important authorities. I say this, fully recognising the excellence of much judicial work amongst us. The public is more interested than it knows in maintaining the highest scientific standard in the administration of the law. The intellectual interest thus

^f created in the profession is one of the best guarantees for purity of administration. Thorough-bred lawyers are supremely anxious to be right in their law. They may

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46 MR. JUSTICE RICHMOND. J

not always succeed in freeing themselves from class pre¬ judices and party ties, but their interest in abstract law makes them generally incapable of showing favour to individuals.

4. The establishment of Colonial precedents as para¬ mount would lead to divergencies from the law of the mother country which would be productive of considerable inconvenience; nor could Colonial judgments be entitled to the same favourable reception in the Courts of the mother country as they now meet with.

5. A very important consideration is the following :—In every Colony possessing a Constitution, the Legislature is exercising powers created by a statute of the Imperial Parliament. Its powers are limited by this document, and the document is subject to the interpretation of the Courts of law of the country. The Supreme Court of each of these Colonies has jurisdiction to decide that a Colonial Act is ultra vires. The power has actually been exercised in this Colony in the case of an Act for deporting fugitive offenders, it being held that the General Assembly of New Zealand is incompetent to provide for the custody of such persons during their passage over-sea to another Colony. The difficulty has since been removed by Imperial legislation. Now, it is evident that if the integrity of the Empire is to be maintained (which is our common object), the decision of a local Court in regard to the powers of the local Parliament f, ought to be subject to review by an Imperial Court. M- Otherwise all limit to the local power of legislation might be disregarded, and practically set aside, by judges with strong separatist tendencies.

6. It may appear paradoxical, but, in point of fact, the Australian Courts themselves will be degraded by the pro¬ posed measure. They will sink from the position of Imperial to mere local tribunals, with, I apprehend, a corresponding contraction of their present jurisdiction, and, in the future, a probable diminution of judicial independence. To illustrate my meaning, I will again cite a recent proceeding in this country. A few years ago, a gentleman resident in Samoa was forcibly removed from that island by Sir Arthur Gordon, then Her Majesty's High Commissioner for the Western Pacific, who supposed himself to be exercising powers conveyed by the Order in Council constituting his office. The person so dealt with, conceiving himself aggrieved, brought an action for wrongful arrest and imprisonment against Sir Arthur in V the Supreme Court of New Zealand, both parties being then in the Colony. Commissions to take evidence in



JL MR. JUSTICE RICHMOND. 47

Samoa and in London were issued and executed. It was understood Sir Arthur was defended by the British Treasury, and the present Mr. Justice A. L. Smith, of the English High Court of Justice, acted as his counsel on the execution of the Commission in London. No objection r was taken on behalf of the defendant to the jurisdiction of the New Zealand Court. No doubt this was on the ground established in the leading case of Mostyn v. Fabrigas (c) and other cases, that a British subject may be sued for damages in any British Court within whose jurisdiction he is found for a personal wrong done to another British subject in any part of the world. But such a jurisdiction is one which cannot belong to a merely local Court. Sup¬ posing that it could in law survive the contemplated alteration, it is plain that the British Parliament could not allow it to remain. It may be asked, What loss would that be to the Colony I maintain that it would be a real loss. For by the existence of such a jurisdiction the remedy for "injustice and oppression in this quarter of the globe is made more prompt and easy. The dignity of the tribunal exercising so high a function is enhanced. The unity of the Empire is affirmed in a striking manner. To destroy such a jurisdiction would be an act of separation and a degradation of our Courts. If this view is regarded by anyone as sentimental, I would observe that it is exactly

M by the prevalence of such sentiments, if at all, that the ^^ unity of the Empire can be maintained.

In Sir Arthur Gordon's case the decision was, on the main point, favourable to the defendant, the question being one of law, but judgment went against him for a small sum. There was no appeal lodged. The plaintiff, it is said, would have appealed had his means permitted. The British Government acquiesced in the decision.

One point more in this connection : I believe Sir Arthur Gordon, though still in the Colony, was no longer Governor when the writ in the action against him was served. But, had he been Governor, it is established by the case of Musgrave v. Pulido (d), before the Privy Council, that he would none the less have been liable to the jurisdiction of the Supreme Court of the Colony. Such a Court has, under our present constitutions, the right of determining whether any act of power done by a Governor is within the hmits of his authority. Evidently this high juris-

(c) (1774), Cowper's Eeports, 161. (d) (1879), Law Eeports, 5 Appeal Cases, 102.



48 MR. JUSTICE RICHMOND.

diction could not continue to be exercised by a Colonial Court whose decisions were not subject to appeal.

7. No doubt it will be said that the expense and delay of appeals to London are great. I do not pretend to be able to speak with certainty upon these points. But it may be questioned whether, in either respect, there need be much difference between appeals to the Judicial Committee and appeals to the proposed new Court. Distances in Australia are great, and the local lawyers would seldom be content to leave their appeals in the hands of the Bar of the city where the Court happened to sit. Hence, a large outlay in travelling expenses would be apparently inevitable. As regards delay it would not, I apprehend, be found practicable at present to appoint special Justices of Appeal to sit continuously. The Court must be formed by the attendance of members of the existing Benches, and could only sit periodically, as is our practice in New Zealand; these, however, are points on which I do not venture to express any positive opinion.

At present the Judicial Committee appears to be over¬ loaded with work. If the Committee wants strengthening in point of numbers so as to be able to sit in two or more divisions, the British Parliament is bound to find the means. Indian appeals which seem to take up a great deal of time might, one would think, be dealt with by a separate division. There can be no good reason why appeals should not be much accelerated.

8. Although several eminent judges have been amongst those who regularly sit on the Judicial Committee, the Court has not maintained the extraordinary authority it had with the profession during the years when Lord Kingsdown commonly presided over it. Looking to the present importance of the Colonies, and, I venture to say, to the learning of Colonial lawyers, it is not satisfactory that any but the most eminent in the profession should sit as Judges of Appeal from Colonial Courts. It is unfortunate that the attempt to constitute a single Court of Appeal for the whole Empire did not succeed. The Colonies have, I conceive, a right to ask that the ultimate appeal from Colonial decisions shall be to the same tribunal, whether the House of Lords, or some Court to be substituted for the House of Lords, as deals with appeals from the English Courts.

9. But to sum up: whatever may be the defects of existing arrangements, they are such as appear to be remediable without extraordinary difficulty. Even taking things as they are, we shall be wise, I conceive, not to



I LETTER AND REPLY. 49

seek a change open to objections such as I have en¬ deavoured to state—objections which seem even more important and significant in a political point of view than in one purely juridical.

I remain, &c. C. W. EICHMOND.

P.S.—As I desire the fullest and most public discussion of the subject of this letter, I need scarcely say that you are at liberty to deal with it in any way you think proper.

The above letter of Mr. Justice Eichmond was handed by Sir Henry Parkes to Mr. A. Inglis (now Mr. Justice) Clark, then Attorney-General of Tasmania, for his obser¬ vations, and these observations were relied upon by the advocates of abrogating the right of appeal to the Privy Council as an effective "reply" to the letter. They are printed on the following pages in order that the reader may judge for himself how far they successfully refute Mr. Justice Eichmond's arguments.

V



X

OF Mr. A. INGtLIS CLARK.

1. The reference made by Mr. Justice Eichmond to the / case which occurred in New Zealand, and in respect of ^ which an appeal was carried from the New Zealand Court of Appeal to the Privy Council, seems to me to be only available as an argument against making the Supreme Courts of the several Australasian Colonies Courts of final resort, but is not a valid argument against the erection of a Federal Court of Appeal, to take the place of the Privy Council, as a final Court of Appeal for Australasia. If a Federal Court of Appeal is established there will be, as now, an appeal from the Supreme Courts of the several Colonies to a superior tribunal, and the real question at issue is whether the Federal Court of Appeal would prove as satisfactory a tribunal of final resort as the Privy Council, and this question is not touched by Mr. Justice Eichmond's reference to the case which he mentions.

2. The second objection assumes that the judges of the Federal Court of Appeal will necessarily be inferior in experience and ability to the members of the Judicial Committee of the Privy Council, but when it is remem¬ bered that the Judicial Committee of the Privy Council consists of fifteen members of varying capacity and attain¬ ments, three of whom form a quorum, and that many decisions are given by a bare quorum, and many other decisions by a Court consisting of not more than five members, it will be seen that we cannot rely upon having, at all times, in a quorum or minority of the Privy Council, a Court consisting of judges superior to any judges in Australasia. If all appeals from the judgments of Aus¬ tralasian Courts to the Privy Council were heard and determined by a Court consisting of all or even a majority of its members, Mr. Justice Eichmond's second objection would have much more force.

3. The third objection appears to me to have been made in forgetfulness of the fact that the Federal Court of Appeal will be constituted of judges drawn from all the Australasian Colonies, and will therefore embrace and concentrate the legal ability and varied legal experience of the several Colonies, and that the Court will, there¬ fore, be a much superior tribunal to anything of the kind which we have yet had in Australasia, and, further, V' that the varied appellate work which it would be called on to perform would give to the members of it that larger experience and practice, the want of which Mr.

*l



X MR. JUSTICE CLARK. 51

Justice Eichmond appears to regard as the chief disquali¬ fication of the present Supreme Courts of the several Colonies to be made Courts of Final Appeal.

4. The fourth objection, that there would necessarily "y be divergencies in the decisions of the Federal Court of

Appeal and the decisions of the Privy Council, appears to me not well founded, because we find that the Supreme Court of America, in its decisions on matters of mercantile law and its application of the fundamental principles of the common law, nearly always coincides with the decisions of the House of Lords and of the Privy Council. In the instances in which the Supreme Court of America has diverged from the decisions of the Superior Courts in England local circumstances have required and justified the divergence; and we might fairly expect that any divergence which might arise in the decisions of the Federal Court of Appeal in Australasia from the decisions of the Superior Courts in England would be similarly required and justified by varying local exigencies. 5. The fifth objection appears to me to be based, like the first, upon the assumption that the decisions of the Supreme Court in each Colony would be final, and in forgetfulness of the fact that the proposal is not to abolish appeals but to transfer them to a Federal Court of Appeal instead of taking them to the Privy Council.

6. I am unable to see the force of the sixth objection, and do not concur with Mr. Justice Eichmond's conclusion that upon the establishment of a Federal Court of Appeal our local Courts would cease to have jurisdiction in such cases as those mentioned by him.

7. The seventh objection is not directed against the establishment of a Federal Court of Appeal, but is an argument for the reconstruction of the Privy Council.

8. The eighth objection is an argument for the erection of a Court of Appeal for the whole Empire instead of having two distinct Courts of Appeal in the House of Lords and in the Privy Council, as at the present time, and does not appear to me to touch the question of the establishment of a Court of Appeal for Australasia.

9. The ninth argument amounts simply to the statement that a better state of things than at present exists in regard to appeals in England should be brought about.

A. INGLIS CLAEK. Chairman of the Judiciary Committee of

the National Australasian Convention. Parliament House, Sydney,

23rd March, 1891.



TABLE showing the Number of Appeals entered for Hearing Privy Council during the five years 1

before the Judicial Committee of the 893—1897.

Appeals from Colonial Courts—

1893 1894 1895 1896 1897 Totals 5 years.

Annual Average.

2 10

4 7

3 4

5 10

4 5

18 36

3-6 7-2

12

9 3 3 1

1

11

11 1 2 2

2

7

12 3 4

15

7 6 1

2

9

12 1 1

1 4

54

51 14 11 3 1 9

10-8

10-2 2-8 2-2 6 •2

1-8

17

10

18

7

19

11

16

12

19

6

89

46

17-8

9-2

Total from Colonial Courts 39

5 44

36

3 45

37

42

43

1 52

34

2 55

189

11 238

37-8

2-2 47-6

88 84 79 96 91 438 87-6

Note.—These figures are taken from the Judicial Statistics, England and "Wales, 1893 to 1897, printed by the Queen's Printers yearly, 1895 to 1899. The above totals do not represent quite the full number of appeals to the Judicial Com¬ mittee entered, as appeals from the Channel Islands and from Ecclesiastical Courts, few in number, are not here included. In the year 1897 costs were given in fifty cases, and they were taxed at £10,536—an average of £210 : 14s. Id. a case.

to

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australian federation and the privy council

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