Hart v Palmer

[1913] HCA 78

17 C.L.R.] OF AUSTRALIA.

293

feel safe in advising the public, and it will create uncertainty and

H. C. or A.

1913.

confusion.

If it was necessary to decide in this case whether the

decision in the Musicians’ Case (1) should be reversed, I would

A u s t r a l ia n

A g r ic u x -

under the circumstances mentioned follow the rule laid down by my

TUK.ir. Co.

V.

brother Isaacs in this Court on more than one occasion (the latest,

F e d e r a t e d

1 think, on the 18th March this year), and by the Judges of the

F.n g in e -

D r iv e r s a n d

Courts of appeal in England, Australia and America in every

F ir e ji ' e n ' s A.SSOfTATION

case—namely, to follow the decisions given in their respective Courts

or .\USTRAI.-

until they are reviewed and reversed by as full a bench as is

ASTA.

available, called for the purpose of considering the decision. In

Powers J.

Allen Taylor's Case (2) Isaacs J. said :—“ Whjhrow's Case (3) decided that the power of this Court to interpose by writ of prohibi­ tion where a Commonwealth Court is proceeding without jurisdic­ tion is given direct by the Constitution as original jurisdiction of the High Court, and there being no authority to Parliament to annul that authority, any attempt to do so necessarily fails. By that decision this Court, unless constituted as a Full Bench, is bound, and so this case must be determined accordingly.” That is a well recognized principle in all Courts of appeal. For that reason I do not see my way to consider, at present, whether common law agree­ ments to settle disputes are against public policy, or any other question decided by the majority of the Court in that case ; or to consider any other question that it is not necessary to decide to enable the Conciliation Court to continue its proceedings. The Conciliation Court can proceed with its work by a decision on the one point we all agree upon, without disturbing any previous decision of this Court. Urgent public need for the reversal of the decision was mentioned. I do not remember hearing of it during the argu­ ment. The Conciliation Court is doing a great work, and doing it well, and it is invaluable in cases where people cannot, or will not, settle disputes ; but if disputes can be avoided or settled without reference to the Court at all, it must, I think, be a public benefit instead of a danger.

Motion dismissed with costs.

(1) 15 C.L.K., 636.

(2) 15 C.L.R., 586, at p. 606.

(3) 11 C.L.R., 1.

VOL. XVII.

20