Ex Parte (No 2)

The applications before the High Court concerned George Nelson, who had been convicted under sections 154 and 158(j) of the New South Wales Stock Act 1901. Nelson had obtained rules nisi for writs of prohibition from the Supreme Court of New South Wales, which, upon forming the opinion that questions arose as to the limits inter se of the constitutional powers of the Commonwealth and New South Wales, removed the matters to the High Court. The High Court subsequently discharged the rules nisi in *Ex parte Nelson [No. 1]*. The present applications sought certificates under section 74 of the Constitution to enable appeals to His Majesty in Council, arguing that the questions of law involved were indeed questions as to the limits inter se of constitutional powers.

The legal issues before the High Court were whether the previous decision, which upheld the validity of the New South Wales Stock Act against a challenge based on section 92 of the Constitution, involved a question as to the limits inter se of the constitutional powers of the Commonwealth and the State of New South Wales. If it did, the Court was then required to determine whether there were any special reasons justifying the grant of a certificate for an appeal to His Majesty in Council. The applicant relied on the division of opinion within the High Court, the importance of the questions, and the potential for similar issues to arise in other cases.

A majority of the Court, comprising Knox C.J., Isaacs, Gavan Duffy, and Starke JJ., held that no special reasons existed for granting the certificates, and therefore the applications should be refused. Isaacs and Starke JJ. were of the view that the decision did involve an "inter se" question, but still found no special reasons to grant a certificate. Rich and Dixon JJ., however, were of the opinion that the decision did not involve an "inter se" question at all, as the challenge was solely based on section 92 of the Constitution, which they considered to be a restraint on State power and not indicative of any mutual relation or reciprocal effect between Commonwealth and State powers. Dixon J. elaborated that the concept of "limits inter se" requires a mutuality in the relation of constitutional powers, which was absent in this case where the State's power was found to be restricted by section 92, without affecting the ambit or supremacy of the Commonwealth's commerce power under section 51(I).

The applications for certificates were refused.