Kitano v The Commonwealth - [1975] UKPCHCA 2

HIGH COURT OF AUSTRALIA

Lord Wilberforce, Viscount Dilhorne, Lord Edmund-Davies, Lord Fraser of Tullybelton and Sir Thaddeus McCarthy.

KITANO v. THE COMMONWEALTH

(1975) 132 CLR 231

6 May 1975

Privy Council

Privy Council—Appeals from High Court—Privy Council (Limitation of Appeals) Act 1968 (Cth)—Validity—Whether Act limited or abolished right of appeal—Matters in respect of &hich Parliament may limit right to seek special leave to appeal—The Constitution (63 &64 Vict. c. 12), s. 74—Privy Council (Limitation of Appeals) Act 1968 (Cth), s. 3(1).

Decision

May 6.
Lord Wilberforce delivered the judgment of their Lordships as follows:-
The petitioner has sought special leave to appeal in forma pauperis to Her Majesty in Council from a judgment of the Full Court of the High Court of Australia dated 22nd August 1974. By that judgment the Full Court dismissed an appeal by the petitioner against a judgment of the High Court of Australia (Mason J.) in its original jurisdiction dated 4th December 1973. (at p232)

2. A preliminary objection to the competence of the petitioner to present the petition was taken on behalf of the respondent, the Commonwealth of Australia, and argument was heard by their Lordships on this objection without entering, at that stage, upon the merits of the petition. (at p232)

3. The objection was founded upon the Privy Council (Limitation of Appeals) Act 1968, an enactment of the Parliament of the Commonwealth of Australia. This Act was reserved for Her Majesty's pleasure, and was assented to on 10th June 1968. The Queen's assent was made known by proclamation of the Governor-General on 30th July 1968 which appeared in the "Commonwealth of Australia Gazette" of 6th August 1968. (at p232)

4. Section 3 of the said Act is as follows:

"(1) Special leave of appeal to Her Majesty in Council from a decision of the High Court may be asked only in a matter in
which the decision of the High Court was a decision that -

(a) was given on appeal from a decision of the Supreme Court of a State given otherwise than in the exercise of federal jurisdiction; and

(b) did not involve the application or interpretation of - (i) the Constitution; (ii) a law made by the Parliament; or

(iii) an instrument (including an ordinance, rule, regulation or by-law) made under a law made by the Parliament.

(2) The last preceding sub-section does not apply in respect of a decision of the High Court given in a proceeding that was commenced in a court before the commencement of this Act." (at p232)

5. It is clear, in their Lordships' opinion, that the petitioner is prevented from seeking special leave of appeal by the terms of this section. The proposed appeal is from a decision of the High Court which, itself, was not given on appeal from a decision of the Supreme Court of a State. Since, in order for a petition for special leave to be admissible, the requirements of both pars. (a) and (b) must be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kitano v The Commonwealth

Details

AGLC: Kitano v The Commonwealth [1975] UKPCHCA 2
Case: [1975] UKPCHCA 2
Decision Date: 6 May 1975

CaseChat Overview and Summary

In Kitano v The Commonwealth, the petitioner sought special leave to appeal to the Privy Council from a decision of the Full Court of the High Court of Australia. The Privy Council was asked to determine whether the Privy Council (Limitation of Appeals) Act 1968 (Cth) was valid, and if it prevented the petitioner from appealing. The Act restricted the circumstances under which special leave to appeal to the Privy Council could be sought from the High Court, excluding appeals involving constitutional interpretation or federal law.

The primary legal issue was whether the Act effectively abolished the right of appeal to the Privy Council, which would contravene the Australian Constitution. The Constitution allows Parliament to limit the right to seek special leave to appeal, but the petitioner argued that it did not permit the complete abolition of this right. The petitioner also contended that the Act did not comply with the Constitution because it did not specify the subject matter of the limitations, as required by other sections of the Constitution.

The Privy Council held that the Act did not amount to an abolition of the right to seek special leave to appeal from the High Court, but rather constituted a limitation. The word "limiting" in the Constitution was broad enough to encompass restrictions like those imposed by the Act. Additionally, the Privy Council found that the term "matters" in the Constitution's provision about limiting the right to appeal was not confined to specific subject matters but could be interpreted in a general sense, as supported by previous High Court decisions.

Based on this reasoning, the Privy Council ruled that the petition was incompetent and dismissed it. The Act was valid, and the petitioner was barred from appealing to the Privy Council.

Orders