Minister for Works (WA) v Civil and Civic Pty Ltd

[1967] HCA 18

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Kitto, Taylor and Owen JJ.

MINISTER FOR WORKS (W.A.) v. CIVIL AND CIVIC PTY. LTD.

(1967) 116 CLR 273

5 June 1967

Arbitration

Arbitration—Special case stated by arbitrators in course of reference for opinion of a judge of the Supreme Court—Appeal to Full Court—Competency of appeal to High Court—Arbitration Act, 1895-1935 (W.A.), ss. 2, 21—The Constitution (63 &64 Vict. c. 12), s. 73—Judiciary Act 1903-1965 (Cth), s. 35.

Decisions

June 5.
The following written judgments were delivered: -
BARWICK C.J. The appellant was given special leave to appeal against the decision of the Full Court of the Supreme Court of Western Australia upon a case stated by arbitrators under s. 21 of the Arbitration Act, 1895-1935 of Western Australia (the Act) during the course of the arbitration. It was indicated at the time that the question of the jurisdiction of the Court to entertain any such appeal was not conceded by the respondent and the Court intimated that that matter could be dealt with prior to the initiation of the appeal. (at p276)

2. Thereafter the parties agreed that they would be content to submit written cases as to the competency of the appeal and to seek the Court's judgment on that question without any oral argument or a hearing in open court. Whilst such a course is not precisely covered by its Rules, the Court is prepared to act on the parties' consent. A written case has been submitted by each party. The Court, consisting of McTiernan, Kitto, Taylor, Owen JJ. and myself, has considered these cases and the question of jurisdiction which they discuss. (at p276)

3. In my opinion, an appeal by the appellant in this matter to this Court would be incompetent. The order for special leave should be rescinded. (at p276)

4. The arbitrators stated a case for the opinion of the judge of the Supreme Court upon a question of law which had arisen in the arbitration before them. They had not and have not yet made any award. The primary judge answered the arbitrators' question as to the interpretation of the contract between the parties out of which arose the dispute which the arbitrators were called upon to determine. From that expression of opinion the now respondent appealed to the Full Court of the Supreme Court of Western Australia. It is from what that Court did on that appeal that the appellant seeks to appeal. (at p277)

5. The Full Court in dealing with the respondent's appeal from the opinion of the primary judge was acting as the Supreme Court of Western Australia. Both the Court and the judge were performing a judicial function in the sense that they were deciding a question of law, though in a constitutional sense, as far as the Court is concerned, it would not have been an exercise of judicial power. Thus, considerations which were material if not conclusive in Holmes v. Angwin (1906) 4 CLR 297 ; Webb v. Hanlon (1939) 61 CLR 313 and The President of India v. The Moor Line Ltd. (No. 2) (1958) 99 CLR 212 cannot resolve this case. (at p277)

6. The question here is whether what the appellant seeks to make the subject of his appeal is a judgment, decree order or sentence within the meaning of s. 73 of the Constitution and thus a judgment within the meaning of s. 35 of the Judiciary Act 1903-1959. (at p277)

7. It is of the essence of a judgment within the meaning of the Constitution that it is binding upon parties and definitive of legal rights. It is not enough that the judge or Court exercises a jurisdiction of the Supreme Court in a matter judicial in its substance. The judge or Court must authorizedly give a binding judgment which determines or settles rights. In Medical Board of Victoria v. Meyer (1937) 58 CLR 62 the judge was empowered by an Act to decide by ordinary judicial process the right of the respondent to be registered as a medical practitioner, a right derived from the statute. The judge's decision was binding and, therefore, was relevantly a judgment. Smith v. Mann (1932) 47 CLR 426 clearly draws the distinction between consultative opinions and decisions which determine rights. The former do not qualify as judgments within s. 73 of the Constitution whilst the latter do (1937) 47 CLR, pp 445, 446, 453 . (at p277)

8. It was decided in In re Knight and Tabernacle Permanent Building Society (1892) 2 QB 613 that there was no appeal to the Court of Appeal from the opinion expressed by a judge of the High Court upon a case stated by an arbitrator upon a question of law arising during an arbitration under the English Arbitration Act, 1889. Such an opinion was merely consultative and not binding upon the arbitrator or the parties to the arbitration, though it might be misconduct on the part of an arbitrator without proper reason to refuse to give effect to that opinion in arriving at his award. This was the reason for the conclusion of the Court of Appeal that the opinion expressed upon a case stated during the pendency of the arbitration was not a judgment within the meaning of s. 19 of the Judicature Act, 1873. (at p278)

9. The legislature of Western Australia by giving a right of appeal to the Full Court of the Supreme Court (s. 21 of the Arbitration Act) from the opinion expressed by the primary judge upon such a case stated reversed in relation to arbitration under that Act the precise decision in In re Knight and Tabernacle Permanent Building Society (1892) 2 QB 613 . (at p278)

10. It is quite likely that the legislature of Western Australia thought that by making the opinion of the judge appealable, it was not merely supplanting the effect of the decision of the Court of Appeal as to the existence of a right of appeal from the opinion of a judge upon a case stated during the course of an arbitration but also removing the ground of that decision. (at p278)

11. But the crucial question so far as the fate of the present appeal is concerned is whether the legislature did so, that is to say, did it make an opinion given upon a case stated during an arbitration under the Arbitration Act, 1895-1935, of Western Australia binding on the arbitrator and thus on the parties to the arbitration. The statute contains no express words doing so. The question must be answered by deciding what is the legal effect of thus making that opinion appealable within the framework of the Supreme Court's appellate jurisdiction: for that is all that the statute relevantly did. (at p278)

12. Having considered this question, I am unable to regard the mere grant of a right of appeal from that expression of opinion as involving either the conclusion that the opinion of the primary judge is thereby made binding on the arbitrator and the parties or the conclusion that thereby the opinion of the Full Court upon appeal is to be so binding. I see no reason why there should not be an appeal from an advisory opinion which involves no more than the expression of another advisory opinion. In other words, there is nothing in the existence of the right of appeal even though it be to a court in its ordinary appellate jurisdiction which necessarily transmutes the nature and consequence of the opinion thus made appealable. Of course, the Full Court had power to hear and determine the appeal. But, in the appeal from the opinion of the primary judge, in my opinion, it had no power to determine the rights of the parties. It is not empowered to make a judgment within the meaning of the Constitution. (at p279)

13. In this connexion, it is important to bear in mind that no State legislation by mere description can make that which does not bind parties and is not definitive of rights a judgment within s. 73 of the Constitution. The question can never be what does the State consider the act of its court to be. The question always is whether that act is a judgment, decree order or sentence within the meaning of the Constitution. Thus, it would not be sufficient for a State statute to "deem" the expression of opinion consultative in its nature to be a judgment: cf. Arbitration Act, 1950 (U.K.), s. 21 (3). (at p279)

14. Apparently it has been thought by the Full Court that because of the grant of a right of appeal, the Court could treat the opinion of the primary judge as a judgment or order capable of being set aside by an order of the Full Court. Upon the appeal it made an order setting aside the "order" of the primary judge and by order substituted its own opinion for that of the primary judge making as well an order for costs. But, in my respectful opinion, the primary judge was not authorized to express his opinion upon the question in the stated case in the form of an order. Further, in my opinion, to make the opinion of the primary judge appealable did not authorize the Full Court to make any order. It merely authorized that Court to express its own opinion upon the question stated by the arbitrator notwithstanding the fact that the primary judge had already expressed his opinion. It seems to me that the lodging of a notice of appeal against the latter opinion rendered that opinion nugatory and opened the way to the expression by the Full Court of its own opinion upon the question. There was, in my opinion, neither need nor authority for the Full Court by order to set aside the opinion of the primary judge. It had merely to express its own. Although in form the appeal from the primary judge's expression of opinion resulted in an order, in truth all that the Full Court did was to express an opinion upon the question of law in the case stated. (at p279)

15. In my opinion, therefore, the Full Court's answer to the question in the case stated was not a judgment order decree or sentence within the meaning of s. 73 of the Constitution. It was of the same nature relevantly as the opinion expressed by the primary judge. It no more binds the arbitrator and the parties than did his, though there might be lesser ground for the arbitrator to depart from it than there could be in the case of the opinion of the primary judge. (at p279)

16. The Full Court made an order for costs. Perhaps in an appropriate case and with its leave an appeal could be brought to this Court from such an order. But that is not the case here. It is not said that independently of the opinion expressed upon the stated case the Full Court's order for costs was wrong. It would merely be sought to have it reversed as a consequence of the reversal of that opinion. (at p280)

17. It seems to me, therefore, that the appeal is incompetent upon the ground that it is not sought to be brought from a judgment, order or decision which satisfies the requirements of s. 73 of the Constitution or of s. 35 of the Judiciary Act. (at p280)

McTIERNAN J. A dispute arose under a building contract, the parties to which were the Minister for Works for the Government of Western Australia (appellant) as proprietor and Civil and Civic Pty. Limited (respondent) as builder. (at p280)

2. The dispute was referred to arbitration. The arbitrators stated a case for the opinion of the Supreme Court of Western Australia upon a question of law, and the case was heard before Hale J., who by an order answered the question in favour of the Minister, and awarded the costs of the proceedings to him (see, however, The President of India v. The Moor Line Ltd. (No. 2) (1958) 99 CLR 212, at p 213 ). From this decision the company appealed to the Full Court of the Supreme Court of Western Australia. Their Honours allowed the appeal and set aside the order of Hale J. and made a declaration setting out the opinion of the Court on the question of law, raised by the special case stated. The Court further awarded the costs of and incidental to the special case and the appeal to the company. The Minister thereupon made an application to this Court for special leave to appeal against the judgment and order of the Full Court, and the same was granted. The company has given a notice of objection to the competency of this appeal, in accordance with O. 70, r. 8. The ground of the objection is, in substance, that neither the order nor judgment of the Full Court is within the provisions of s. 35 of the Judiciary Act. If the objection be good the appeal is not authorized by s. 73 of the Constitution. (at p280)

3. The arbitrators stated the special case in pursuance of the provisions of s. 21 of the Arbitration Act, 1895 (as amended), of Western Australia. This section reads as follows: "Any referee, arbitrator, or umpire may, at any stage of the proceedings, under a reference, and shall, if so directed by the Court or a Judge, state in the form of a special case, for the opinion of the Court or a Judge thereof, any question of law arising in the course of the reference, and any opinion given shall be subject to appeal". If the final provision had not been added to this section an opinion given under the section would not be susceptible of appeal to a court as such, because the referee, arbitrator or umpire is not authorized by s. 21 to state a special case for the opinion of the Supreme Court or a judge thereof, otherwise than by way of advice. The substantial question is: what is the meaning of the final provision of s. 21? There is no doubt that it allows to a party aggrieved by an opinion access to the Full Court and the mode of access available is provided by s. 58 (1) (b) of the Supreme Court Act, 1935-1957. By this provision the Supreme Court has jurisdiction to hear and determine appeals from a judge whether sitting in court or in chambers. The question then is whether by reason of the final provision of s. 21 the court hearing the appeal for which it provides is vested merely with the authority exercisable by the court or judge hearing the special case in the first instance. If that is the effect of the final provision the opinion reached on appeal could not be a judgment or judicial order and there would be no right of appeal to this Court under s. 35 of the Judiciary Act or s. 73 of the Constitution. The final provision is short but it is I think a necessary implication that the appeal authorized is to a court vested by the laws of the State with appellate jurisdiction because it is an appeal from the Supreme Court or a judge of that Court: and that the appellate Court is intended to exercise its ordinary appellate jurisdiction in relation to the appeal (National Telephone Co. Ltd. v. Postmaster-General (1913) AC 546, at p 562 ). The result would be that the determination of the appeal would have all the incidents of a judgment of a court or a judicial order. In my opinion the judgment and order of the Full Court of Western Australia are both of the nature of a judgment and order pronounced in the exercise of its ordinary judicial functions. The effect of the final provision of s. 21 is that the court to which the appeal is brought has to hear and determine it as a court. (at p281)

4. Consequently the judgment and order to which this appeal relates should be treated as within s. 73 of the Constitution and s. 35 of the Judiciary Act 1903-1959 (Cth). The objection to competency should be dismissed and the order granting special leave to appeal should stand. (at p281)

KITTO J. The respondent objects to the competence of this appeal upon the ground that it is not an appeal against a "judgment, decree, order or sentence" within the meaning of s. 73 of the Constitution and is therefore not within the appellate jurisdiction of this Court. The notice of appeal describes it as an appeal against a "judgment" of the Full Court of the Supreme Court of Western Australia wherein the Full Court declared its opinion upon a question therein referred to and ordered the present appellant to pay the costs of the respondent. In fact the operative parts of the formal instrument expressing the Full Court's decision consisted of (1) an order allowing an appeal to that Court from an order of Hale J. and setting the latter order aside; (2) a declaration of the Full Court's opinion upon a question of law which had been submitted to the Court by an arbitrator by way of special case under s. 21 of the Arbitration Act, 1895-1935 (W.A.); and (3) an order that the present appellant pay the respondent's costs of the special case. Hale J. had expressed the contrary opinion upon the question of law and had ordered the present respondent to pay the appellant's costs of the special case. (at p282)

2. Both the order of Hale J. and the order of the Full Court are rightly described as "orders" inasmuch as each creates, and the order of the Full Court vacates, rights and liabilities between the parties as to costs. The present appeal from the Full Court's order is therefore within the appellate jurisdiction of this Court: The President of India v. The Moor Line Ltd. (No. 2) (1958) 99 CLR 212, at p 214 . By reason of the provisions of s. 35 of the Judiciary Act 1903-1965 (Cth), however, it was incompetent without special leave. Special leave was in fact granted subject to the question of competence, but presumably it would not have been granted for the purpose of reviewing only the order of the Full Court as to costs. Accordingly the special leave ought to be rescinded, with the result of rendering the appeal incompetent, unless the expression of the Full Court's opinion, if it had stood by itself, would have been a "judgment, decree, order or sentence". This it plainly was not if the function of the Full Court, on the true construction of s. 21, was to give an advisory opinion only. "When a court is authorized by legislation to give an advisory opinion, no matter what language is used, its opinion is not a judgment, decree, order or sentence from which an appeal lies": Saffron v. The Queen (1953) 88 CLR 523, at pp 527, 528 . The contrast is between an expression of opinion which leaves the legal situation of the parties unaffected, and an adjudication having an operation of its own to affect in some way the parties' mutual rights and obligations. (at p282)

3. The authority which the Full Court was exercising is derived from the concluding nine words of s. 21 of the Arbitration Act: "and any opinion given shall be subject to appeal". Apart from those words the section is almost identical with s. 19 of the Arbitration Act, 1890 (U.K.). It enables any referee, arbitrator or umpire, at any stage of the proceedings under a reference (and obliges him, if so directed by the Court or a judge) to state in the form of a special case for the opinion of the Court or a judge thereof any question of law arising in the course of the reference. There is one difference from the United Kingdom section, namely that the words "or a Judge thereof" are added after "Court". In the United Kingdom Act "Court" was defined to mean the High Court of Justice, and accordingly the opinion sought by a special case under the section was the opinion either of a Divisional Court (in the King's Bench Division) or a Chancery Judge. In the Western Australian section "Court" means the Supreme Court of the State: s. 2. The purpose of providing for the advice of "the Court or a Judge" appears to be only to enable the special case to be assigned in the first instance either to a single judge or to the Full Court, and not to indicate that if it be heard by a single judge the Full Court has a supervisory power; for subject to qualifications not presently material a judge sitting alone possesses the powers of the Court: Supreme Court Act, 1935-1957 (W.A.), s. 41, and accordingly the jurisdiction of the Full Court to entertain an appeal from a single judge depends upon specific statutory provision to that effect. (at p283)

4. Even before the passing of the Western Australian Act it had been decided by the Court of Appeal in England that an opinion given on a special case stated in the course of a reference was an advisory opinion only; it afforded the arbitrator guidance but did not conclude the question of law as between the parties: In re Knight and Tabernacle Permanent Building Society (1892) 2 QB 613 . The decision was upheld by the House of Lords in the case of British Westinghouse Electric and Manufacturing Co. Ltd. v. Underground Electric Railways Co. of London Ltd. (1912) AC 673 , where the principle was carried to its logical conclusion in a decision that if the arbitrator makes an award on the footing that the opinion given him under the section is correct the award may nevertheless be set aside for error of law by a court which considers that the opinion was wrong. The difference in juristic nature between the giving of an opinion upon a question of law submitted by a case stated in the course of a reference and the decision of the same question when it arises after the arbitrator has completed his task was thus put beyond doubt. Both are acts of a court, but they exercise fundamentally different powers. The one is an exercise of a statutory power to express an opinion while yet the arbitrator is fully seised of the reference - a power, that is to say, not to take the question of law out of the arbitrator's hands, but to give him assistance in deciding it himself, as being the tribunal agreed upon by the parties for the general determination of the subject matter of the reference. The other is an exercise of one of two powers: a statutory power to answer a question which has been submitted in an award made in the form of a special case (see Arbitration Act, 1895-1935, (W.A.), s. 9 (b)), which is a power to conclude the question between the parties and by so doing to allow the award an operation for which its terms provide; or a common-law power to supervise the decisions of tribunals which are under a duty to decide according to law - again a power to conclude a question of law as between the parties. It is worth nothing in this connexion why it is that the last-mentioned power is available only where it appears on the face of the award (or a document incorporated with it) that the award is vitiated by error of law: see A.-G. for Manitoba v. Kelly (1922) 1 AC 268, at p 281 ; Champsey Bhara and Co. v. Jivraj Balloo Spinning and Weaving Co. (1923) AC 480 ; Giacomo Costa Fu Andrea v. British Italian Trading Co. (1963) 1 QB 201 . The reason was formerly obscured by the currency of a view that the jurisdiction to set aside an award for error of law exists by virtue of a judgemade exception to the general rule that the parties must abide by their agreement to accept the arbitrator's decision: see, for example, Henry v. Uralla Municipal Council (1934) 35 SR (NSW) 15, at p 23 . But Lord Goddard pointed out in R. v. Northumberland Compensation Appeal Tribunal; Ex p. Shaw (1951) 1 KB 711, at pp 721, 722 that the jurisdiction was founded upon the general principle mentioned by Holt C.J. in Ricelip Parish v. Henden Parish (1698) 5 Mod Rep 416, at p 417 (87 ER 739, at p 740) . This means that although an authority given to an arbitrator to decide a specific question of law cannot be interfered with, since it is validly exercised even though the award shows on its face that the decision is erroneous: In re King and Duveen (1913) 2 KB 32 , yet an authority to decide any other question between parties is intended to be exercised in accordance with the law, and consequently a decision in purported exercise of it but arrived at by error of law may be set aside, provided that the Court can perceive the error of law without having "travelled into the fact" (as Lord Holt expressed it) by going behind the award into the proceedings of the arbitration itself. (The whole matter is well illustrated by the case of an arbitration upon a question of construction: see Kelantan Government v. Duff Development Co. (1923) AC 395 . This may be of importance at a later stage of the present case.) An adjudication upon a question of law in exercise of this jurisdiction is necessarily an adjudication inter partes, having a definite operation upon the legal situation existing between them. (at p285)

5. In the United Kingdom an opinion given in the course of a reference has now been made appealable by the repeal of the old s. 19 and the enactment of s. 21 of the Arbitration Act, 1950 (U.K.) in terms which depart from s. 19 in two respects: the special case is to be stated for the "decision" of the High Court, and by force of an added sub-s. (3) the decision is to be deemed a judgment of the Court within the meaning of the appeal provision, viz. s. 27 of the Supreme Court of Judicature (Consolidation) Act. Not having been adopted in Western Australia, these changes may here be ignored; but one point in regard to sub-s. (3) should be noticed lest a reference which may be found in s. 60 (1) (f) (v) of the Supreme Court Act, 1935-1957 (W.A.) to an "order" on a special case under the Arbitration Act be thought relevant to the present problem. A similar provision exists for the United Kingdom in s. 31 (1) (i) (v) of the Supreme Court of Judicature (Consolidation) Act, 1925 (U.K.); yet sub-s. (3) of s. 21 of the Arbitration Act, 1950 (U.K.) prohibits an appeal without leave from a decision on a case stated which submits a question of law arising in the course of the reference. This seems clearly to recognize that s. 31 (1) (i) (v) of the Supreme Court of Judicature (Consolidation) Act had no application to an opinion given on a special case stated in the course of a reference. The corresponding prohibition in s. 60 (1) (f) (v) of the Supreme Court Act, 1935-1957 (W.A.) must, I think, be likewise construed as affording no indication that an opinion under s. 21 of the Arbitration Act is an "order". (at p285)

6. These considerations clear the ground for the main contention of the appellant. The concluding words of s. 21, elliptical as they are, no doubt apply only to an opinion given by a single judge, and imply that the jurisdiction of the Full Court to entertain an appeal from such an opinion shall be by way of addition to the general jurisdiction conferred by s. 58 (1) (b) of the Supreme Court Act, 1935-1957 (W.A.) "to hear and determine appeals from a Judge". The argument is that a jurisdiction "to hear and determine" an appeal is, in general, a jurisdiction to make a binding determination of the matter at issue between the parties, and that s. 21 of the Arbitration Act should therefore be construed as intending that the Full Court's opinion on the question of law shall not be merely advisory but shall take effect as an adjudication binding upon the parties. If this were indeed the true construction it would follow that the expression of the Full Court's opinion would be an "order" within s. 73 of the Constitution; for while the members of the Court of Appeal in In re Knight and Tabernacle Permanent Building Society (1892) 2 QB 613 reached their conclusion upon a variety of considerations the decision rested fundamentally upon one only, that an opinion given upon a special case stated in the course of a reference is an advisory opinion and not an adjudication between the parties: see British Westinghouse Electric and Manufacturing Co. Ltd. v. Underground Electric Railways Co. of London Ltd. (1912) AC 673, at p 686 . But it would be an odd intention to extract from the section that if the Full Court deals with a special case in the first instance its opinion is to be merely advisory, but if it deals with the same special case on appeal from a single judge it pronounces not an advisory opinion but a binding order. (at p286)

7. The argument, in my opinion, errs in making too much of the word "determine". It is not a word of invariable meaning, though undoubtedly there is a prima facie difficulty in applying it to a mere giving of advice: Tata Iron and Steel Co. Ltd. v. Bombay Chief Revenue Authority (1923) 39 TLR 288, at p 291 . In s. 21 it is used in relation to the appeal, not the question of law. Since the subject matter dealt with in the body of the section is the stating of a special case for an opinion only, there is neither need nor justification for giving the concluding words a wider meaning than that the appeal shall be one which is to be determined by deciding what opinion ought to be given by way of advice to the arbitrator. To authorize the determination of an appeal from a judge's act which itself is not a judgment or order (as all must concede is the case in respect of a judge's advice under s. 21) is surely to authorize a supersession of the judge's act by an act which does what the judge ought to have done. In my opinion the nine words at the end of s. 21 give such an authority and no other. There is nothing that I can see to justify a conclusion that those words authorize the making of an order which the judge appealed from had no power to make. One may be permitted to doubt whether that result is produced even by s. 21 (3) of the Arbitration Act, 1950 (U.K.). At least it would require much clearer language than is found in the Western Australian Act. I should think it clear that an appeal against an advisory opinion is a proceeding determinable only by the giving of another advisory opinion upon the same question. (at p286)

8. Reference has been made to the case of National Telephone Co. Ltd. v. Postmaster-General (1913) AC 546, at p 562 , in which Lord Parker of Waddington said: "Where by statute matters are referred to the determination of a Court of record with no further provision, the necessary implication is, I think, that the Court will determine the matters, as a Court. Its jurisdiction is enlarged, but all the incidents of such jurisdiction, including the right of appeal from its decision, remain the same." I must guard against being thought to be in any doubt the correctness of this statement. It is necessary to bear in mind, however, that the House of Lords was concerned, as Lord Evershed M.R. pointed out in Reg. v. Governor of Brixton Prison; Ex parte De Demko (1959) 1 QB 268, at p 274 , with the question whether the Railway and Canal Commission, which had been given jurisdiction as regards certain matters arising under the Telegraph (Arbitration) Act, 1909 (U.K.), was to act in regard to those matters as an arbitrator or as a court. The "matters" referred to were matters in issue between parties, and Lord Parker's statement obviously uses the word in the same sense. By contrast, the "matter" which is referred to the determination of the Full Court by the combined operation of the concluding words of s. 21 of the Arbitration Act, 1895-1953 (W.A.) and s. 58 (1) (b) of the Supreme Court Act, 1935-1957 (W.A.) is not the question of law which the special case has stated, but the very different question what opinion should the arbitrator have for his guidance. For these reasons I am of opinion that the special leave should be rescinded and the appeal dismissed as incompetent. (at p287)

TAYLOR J. On 12th October 1965 the parties to this matter agreed by deed to submit to the arbitration of H. T. Forbes and K. Bryne disputes which had arisen between them in relation to a building contract which described the appellant as "the proprietor" and the respondent as "the builder". Pursuant to s. 21 of the Arbitration Act, 1895-1935 (W.A.) the arbitrators, in the course of the arbitration, stated "in the form of a special case, for the opinion of the Court or a Judge thereof", a question of law arising in the course of the reference. "Court" in this section means the Supreme Court of Western Australia. The question was: "For the purpose of deciding which of Clauses A75, A76, A77 and A78 of the Bill of Quantities apply to particular quantities of surplus earth carted pursuant to the said Contract, should the distances over which the surplus earth was carted be measured as a straight line on a horizontal plane from the building site to the point of dumping or as the shortest practical road route from the building site to the point of dumping?" In the first instance Hale J., in effect, answered the question that "the distances over which the surplus earth was carted should be measured as a straight line on a horizontal plane from the building site to the point of dumping". However, upon appeal to the Full Court that tribunal was of the opinion "that the distance over which the surplus earth was carted by the appellant should be measured as the shortest practical road route from the building site to the point of dumping". (at p288)

2. On 19th September 1966 this Court purported to give to the appellant special leave to appeal "against the judgment" of the Full Court and on 10th October 1966 an appeal to this Court was instituted. No question as to the competency of the Court to grant special leave from the Full Court in a matter of this character was argued but such an objection was foreshadowed and is now taken. The question is, of course, whether the proceedings before the Full Court resulted in a "judgment, decree, order, or sentence" within the meaning of s. 73 of the Constitution and, at the request of the parties, we have undertaken to consider this question on submissions made to us in writing. (at p288)

3. The instrument by which the proceedings before Hale J. were concluded purported to be an "order". But it has been firmly established by a long line of authority that such an instrument is not a judgment, decree, or order within the meaning of s. 73. It does not determine the rights of the parties in relation to any matter in dispute and, as a matter of strict law, it is not binding on the arbitrators in their determination of the parties' rights. The arbitrators still remain "the final judge of law and fact" and the opinion which s. 21 provides that they may obtain from the court or judge is advisory only. Consequently the award of an arbitrator may be set aside for error on the face of the award although the arbitrator, in making his award, has followed a judicial opinion upon a question of law arising in the course of the reference (British Westinghouse Electric and Manufacturing Co. Ltd. v. Underground Electric Railways Co. of London Ltd. (1912) AC 673 ). Accordingly the opinion is not a "judgment or order" from which an appeal lies except in accordance with any express provision to that effect. The reasoning in In re Knight and Tabernacle Permanent Building Society (1892) 2 QB 613 clearly shows this to be so and although, on occasions, other distinguishable cases have arisen (see e.g. Lloyds Bank Ltd. v. Jones (1955) 2 QB 298 ) it has never been departed from (see e.g. C. T. Cogstad and Co. v. H. Newsum, Sons and Co. (1921) 2 AC 528 and The President of India v. The Moor Line Ltd. (No. 2) (1958) 99 CLR 212 ). (at p288)

4. The situation which thus arises was dealt with in England in 1934, by s. 9 of the Arbitration Act, 1934, now s. 21 of the 1950 Act, the first sub-section of which provides that an arbitrator or umpire may, and shall if so directed by the High Court, state - " . . . (a) any question of law arising in the course of the reference; or (b) an award or any part of an award, in the form of a special case for the decision of the High Court". But a decision of the High Court of Judicature under this section is deemed, by sub-s. (3) thereof, to be a judgment of the Court within the meaning of s. 27 of the Supreme Court of Judicature (Consolidation) Act, 1925, (which relates to the jurisdiction of the Court of Appeal to hear and determine appeals from any judgment of the High Court), but no appeal is to lie from a decision of the High Court stated under par. (a) of sub-s. (1) without the leave of the High Court or the Court of Appeal. It is, perhaps, necessary to point out that, so far as this Court is concerned, the relevant question is whether the "declaration" of the Full Court is a "judgment, decree, or order" in the constitutional sense and the resolution of that question would remain unaffected by a "deeming" provision such as this. But it is the contention of the appellant that s. 21 of the Arbitration Act is in a form which makes this case distinguishable in substance from the cases I have already mentioned and it is submitted that the proceedings in the Full Court resulted in an "order" within the meaning of s. 73. (at p289)

5. Section 21 of the Arbitration Act is as follows: "Any referee, arbitrator, or umpire may, at any stage of the proceedings, under a reference, and shall, if so directed by the Court or a Judge, state in the form of a special case, for the opinion of the Court or a Judge thereof, any question of law arising in the course of the reference, and any opinion given shall be subject to appeal." It will be seen that, like the legislative provisions under consideration in the earlier cases, it authorizes an arbitrator to state in the form of a special case a question of law for the opinion of the court or judge but, unlike the earlier legislative provisions, it provides that "any opinion given shall be subject to appeal". When this section was enacted the decision in In re Knight and Tabernacle Permanent Building Society (1892) 2 QB 613 was some three years old and it seems reasonably apparent that the legislature intended by the concluding words of the section to avoid the effect of that decision. Of course, it might have been avoided merely, as, on the face of the section, seems to have been done, by giving a right of appeal from the advisory opinion to the Full Court, or, by the fundamental change of investing the "opinion" of the judge of first instance with the essential characteristics of a judgment or an order so that an appeal would lie to the Full Court pursuant to s. 1 of 58 Vict. No. 28 which amended the Supreme Court Act, 1880. The relevant question, however, is not concluded by the form in which the learned judge of first instance or the Full Court expressed their respective opinions; the question is one of substance and it is not to the point that each of the instruments by which the several proceedings were terminated purported respectively to be an "order" and a "declaration". (at p290)

6. It is the respondent's contention that the final words of s. 21 - "and any opinion given shall be subject to appeal" - invoke the jurisdiction of the Supreme Court as it is conferred by s. 58 of the Supreme Court Act, 1935 which purports to authorize the Full Court to "hear and determine" appeals in various cases including "appeals from a judge whether sitting in Court or in Chambers". The result of this, it is said, is that, even if the opinion of the judge of first instance is merely advisory, the same cannot be said of the opinion of the Full Court which is made in the "determination" of an appeal. I do not, myself, find this argument compelling if, as I think it to be, the original opinion is merely advisory or consultative in character for it seems to me that the so-called order of the Full Court must be of the same essential character as the opinion of the judge of first instance. The function of the Full Court in hearing and determining an appeal from such an opinion would be merely to consider whether the judge of first instance had erred. If so it would substitute its own opinion but, if not, the appeal would be dismissed and the original opinion would remain unaffected. However, the primary question is concerned with the intention of the legislature in 1895 when s. 21 of the Arbitration Act was enacted and that question cannot be ascertained from a consideration of a statute which became law in 1935. (at p290)

7. When s. 21 was enacted the statute which regulated generally the practice and procedure of the Supreme Court was the Supreme Court Act, 1880. No specific provision for appeals to the Full Court seems to have been made by this Act and, in particular, the words "hear and determine" do not appear. However, the Act was amended by 50 Vict. No. 28 which, after reciting that due provision had not been made by the Supreme Court Act, 1880 for the purpose of facilitating Appeals in Bankruptcy and other matters to the Full Court and that it was expedient to provide for such appeals, provided that "The Full Court as constituted by 'The Supreme Court Act, 1880', shall be a Court of Appeal, and shall have jurisdiction and power to hear and determine appeals from any judgment or order of the Supreme Court or of any Judges or Judge thereof, subject to the provisions of the said Act, and to such rules and orders of Court now in force for regulating the terms and conditions on which appeals shall be allowed, or as may from time to time be made, in accordance with the provisions of the said Act". (at p291)

8. This was the state of the relevant provisions regulating appeals to the Full Court when s. 21 of the Arbitration Act, 1895 was enacted and if, as is apparent, it wished to give a right of appeal to the Full Court from the opinion of a judge exercising the jurisdiction under that section, the choice open to the legislature was clear. Plainly enough it cannot be thought that it regarded an opinion given upon a question of law raised by way of special case under that section as resulting in an "order" for, if the contrary view had been held, there could not have been thought to be any need for the concluding words of that section. In the circumstances as they existed the courses available to the legislature were obvious; it could either have given an appeal to the Full Court from an advisory opinion which would be outside the purview of 50 Vict. No. 28, or it could, if it so wished, have merely deemed the "opinion" to be an order within the meaning of that enactment, or, it could have gone further and invested the opinion given under the section with the essential characteristics of an order. And, of course, the question whether the present appeal to this Court is competent depends upon whether it can be said that, in substance, the legislature pursued the last-mentioned course. However the choice which it made is, it seems to me, beyond doubt. It gave a right of appeal from the opinion of a judge to the Full Court and did not make any fundamental change in the character of the opinion even where one of the parties had appealed, successfully or otherwise, to the Full Court pursuant to s. 21. This conclusion remains unaffected by the introduction in 1935 of s. 58 of the Supreme Court Act which deals with appeals from orders. Accordingly, in my view, the "declaration" of the Full Court was of precisely the same character and quality as the "order" of the learned judge of first instance although it was inconsistent with and purported to replace the "order" appealed against. But it did not, in the circumstances, achieve a new quality; it was still advisory in character and did not determine the rights of the parties in respect of the question raised. The arbitrator still remained in law the sole judge of both law and fact and it is not to be thought that when s. 21 was enacted, it was the intention of the legislature, in merely providing for an appeal from an advisory opinion, to give either that opinion, or that of the Full Court upon an appeal under that section, a conclusive effect and so make such a fundamental change in the situation of an arbitrator selected by the parties for the resolution of their differences. At all events, if it did so intend, it did not use language appropriate to express such an intention or to effect such a change. (at p292)

9. One further matter remains to be mentioned. There is no doubt that in so far as the Full Court directed the respondent before it to pay the costs of the proceedings it made an order but special leave to appeal from this order was not sought and, indeed, could not have been successfully sought. (at p292)

10. In my view the order granting special leave to appeal should be revoked and the appeal dismissed as incompetent. (at p292)

OWEN J. I agree with the other members of the Court that the order granting special leave to appeal should be rescinded on the ground that no appeal lies to this Court. (at p292)

2. The opinion given by the judge of first instance upon the question of law raised by the case stated was undoubtedly advisory only and it seems to me that the opinion given by the Full Court upon the "appeal" to it under s. 21 of the Arbitration Act was of precisely the same nature. The result of that appeal was that the Full Court's opinion was substituted for that given by the judge of first instance and in neither case was the giving of an answer to the question submitted by the arbitrators a judment, decree, order or sentence within the meaning of s. 73 of the Constitution. (at p292)

Orders

Order for special leave rescinded. Application for special leave dismissed with costs. Appeal dismissed as incompetent with costs (including costs of the written cases as to competency).